
    [Pittsburg,
    September. 28, 1827.)
    HULTZ against WRIGHT and another.
    IN ERROR.
    In debt for rent, parol evidence is admissible, to show that in making a lease for nine years, rendering rent, it was understood and agreed by all parties, ' that for the last nine months no rent should be payable.
    Hultz, the plaintiff in error, was defendant below. He was sued in debt for rent on an indenture of lease between Wright and Wil-, let, the plaintiffs below, lessors, and a certain John Thompson, lessee, of a tract of land at a certain annual rent, for nine years, ending the 1st of April, 1822. This suit was brought for the rent of the last year against Hultz, who had come upon the land as purchaser from John Thompson, the lessee. Wright and Willet acted in the business as guardians oí Benjamin Thompson, the brother of John Thompson. The father of John and Benjamin Thompson had, by his last will, given the rents .and profits of the land in question to Benjamin, for his support and education, until he should attain the age of twenty-one, and then to John in fee simple. On the trial in the court below, the defence was, that for a great part of the last year of the lease; viz. for about ten months, no rent was due to Benjamin Thompson, or to his guardians; because Benjamin attained his full age in June, 1821, and from that time Hultz himself was absolute owner of the land, and entitled to all the profits: and that at the executing of the lease it was agreed by parol between the guardians and John Thompson, the lessee, that the lease should be drawn to end on the usual day, the 1st of April, but'that the rent should terminate with the termination of Benjamin’s interest; viz. in June, 1821. To support this defence,-the deposition of Joseph Philips, who drew the lease and was one of the subscribing witnesses, was offered in evidence. The deposition, in substance, ■was that the guardians and John Thompson came to his, (the wit-' ness’s,) house, to get the lease written. That the making the lease for the full term of nine years was a matter discussed and understood by the parties, and that no rent was to be paid for any time after the boy, Benjamin, should come of age. That the lease was so drawn at the suggestion of him, the witness. That he stated to the parties, Benjamin could not claim any rent after he came of age, agreeably to his father’s will, and they all knew it. That it was well understood no rent was to be paid after Benjamines coming of age; and that he, the witness, did not expect any difficulty would arise from extending of the term beyond the title of the lessors, inasmuch as they were all related. This deposition was objected to by the plaintiffs below, as contradicting the indenture; and, for that reason, was rejected by the court. Exception thereupon by the.defendant. He also excepted to the opinion of the court overruling the deposition of James Hultz.
    
    
      Selden
    
    argued for the plaintiff in error, and referred to 2 Johns. Ch. 593. 3 Binn. 588, 6 Binn. 482. 1 Serg. & Rawle, 466. 1 Ph. Ev. 449, 458. 2 Jltk. 202. 3 Atk. 388. Kirby, 399.
    . Burke and Fetterman,
    
    . in their argument for the defendants in error, cited 13 Serg. & Rawle, 224, 239. 1 Ph. Ev. 447. 7 Serg. & Rawle, 60.
   The opinion of the court was delivered by

Tod, J.

As to the deposition of James Hultz, it was well rejected. It was offered to prove declarations and assurances by John Thompson to the defendant below, that no rent would be payable after Benjamin coming of age, which clearly was not evidence. But I think there was error in rejecting the deposition of Joseph Philips. The matter of receiving parol proof, in cases like this, can hardly now be said to be a question for argument. It was legal evidence,,and, if believed by the jury, was conclusive as to the portion of rent in dispute. It was evidence to prove, not only a defect of consideration, the land during the disputed time being not the land of Wright and Willet, nor of Benjamin Thompson, but of Bichará Hultz, the defendant, but to prove' also mistake, or if not mistake, fraud. For either purpose it was admissible. As to fraud, it is not supposed to be necessary to have proof ex.press, that a writing has been obtained fraudulently, in order to admit parol evidence against it on that score: but parol evidence may be admitted to resist the fraudulent use of a writing, in the obtaining of which no fraud can be made to appear. See Thomson v. White, 1 Dall. 426. There appears no substantial difference between this case, and the common case of defence against a bond or single bill for want of consideration, whether through fraud or mistake. The rule seems to apply here in full force, to consider as paid what in justice and conscience ought not to be paid. It is the opinion of the court that the judgment be reversed, and a venire de novo awarded.

Judgment reversed, and a venire facias de novo awarded..  