
    [Pittsburg,
    September 26, 1826.]
    HAMILTON against ASSLIN.
    IN ERROR.
    Parol evidence is admissible, to show that a particular clause was inserted in sat article of agreement by mistake.
    On an appeal from the judgment of a justice of the peace to the Court of Common Pleas of Allegheny county, to which this was a writ of error, William Jlsslin, the defendant in error and plaintiff below, filed a declaration in covenant aga‘inst Samuel Hamilton, the plaintiff in error, upon an article .of agreement in these words:—
    “ An article of agreement, made by and between Samuel Hamilton of the one part, and William Jlsslin of the other part, both of Jlllegheny county. The said Jlsslin doth agree to make and finish one. hundred' thousand brick, the common size, to bo good and sufficient; and said Hamilton is to find hands sufficient to attend in the making said brick, and said Hamilton to board said Jlsslin 
      the time he is making said brick; and said Hamilton is to pay said Jlsslin the sum of one dollar twelve and a half cents-per thousand, in current paper, at the time of payment; and said Jlsslin is to make a sufficient quantity of stock brick for the building, gratis, and no pay for them, and Jlsslin to help to build a shéd, to make the brick, and said Hamilton is to pay said Jlsslin twelve and a half cents per thousand for digging the clay for the brick. In witness hereof we have set our hands and seals, this first day of Bpril, 1819.”' ■
    
      “ Samuel Hamilton, (seal.)
    “ William Jlsslin, (seal.)
    “Attest, Noble Calhoon.”
    
    On the trial,_ after the plaintiff below had given in evidence the agreement on which the action was brought, the defendant called Noble Calhoon, the subscribing witness to the agreement, and offered to prove by him that he drew the instrument, and that the clause therein, relating to the price of raising the clay, was inserted by mistake.
    The plaintiff’s counsel objected to the- evidence; and the court sustained the objection; whereupon the defendant’s counsel excepted to their opinion.
    
      Fetterman and Baldwin, for the plaintiff in error,
    cited Christ v. Diffebach, 1 Serg. & Rawle, 464. MlDerrtiot v. United States Insurance Company, 1 Serg. & Rawle, 604. Drum v. Simpson, 6 Binn. 482. Thompson v. White, 4 Dull. 426. Dingle’s Lessee, v. Marshall, 3 Binn. 587.
    
      Burke, for the defendant in error,
    referred to M‘Meen v. Owen, 1 Yeates, 138. Little v. Henderson, 2 Yeates, 235. Plankenhorn v. Ware, Id. 270. Mackey v. Brown, 13 Serg. & Rawle, Bowel on Cont. 432. Jackson v. Sill, 11 Johns. 215. Stevens v. Cooper, 1 Johns. Ch. R. 425,428. 4 Dali. 340. 3 Dali. 415. Miller v. Henderson, 10 Serg. & Rawle, 290.
   The opinion of the court was delivered-by

GibsoN, J.

Courts of equity will rectify a mistake which has arisen fropi fraud or surprise, wherever the proof is clear, and I think'no doubt can be entertained, that these articles would be reformed on a hill in equity. The plaintiff below agreed to make one hundred thousand bricks for the defendant, at the rate of a dollar and twelve and a half cents the thousand, the defendant finding the hands and boarding the .plaintiff while he should be employed in the business. There is also a covenant, that the defendant should allow the plaintiff at the.rate of twelve and a half cents for digging the clay, which he offered to prove by the scrivener, (who is also a subscribing witness,) was introduced into the articles- by mistake. Notwithstanding the admitted danger and imperfection of .parol evidences in all cases whatever, absolute necessity renders a resort to it, in most cases, indispensible. The very nature of fraud is such as to render detection by other means, impracticable; and as mistake is seldom manifest from intrinsic circumstances, this valuable head of chancery jurisdiction, without the evidence of those who might be able to speak directly to the fact would be of little use. Parol evidence has certainly been thought sufficient to ground a decree, by the ablest chancellor that England ever produced. Here mistake is alleged in a distinct covenant, which may be expunged without disturbing any other part of the agreement; and, as the offer was to prove what would be a ground of relief in equity, the evidence ought to have been admitted.

Judgment reversed, and a venire facias de novo awarded. 
      
       Lord Thurlow, in Shelburn v. Inchiquin, 1 Bro. C. C. 338, and Stangroom v. the Marquis of Townsend, S Ves. 328.
     