* 450

the case of lands, they meant it should not bind in the case of lands."

3. Mistakes and misapprehensions in the drawers of deeds or written agreements are a subject for relief in courts of equity, (a) and may be rectified according to the *true intention of the parties (1). Thus, on a bill to rectify a mistake in a policy of insurance, which the plaintiff suggested to have been made too general and contrary to the intention of the parties, Lord Hardwicke said (2), there could be no doubt, but that the court of Chancery had jurisdiction to relieve in respect of a plain mistake in contracts in writing, as well as against fraud in contracts; so that if reduced into writing, contrary to the intention of the parties, on proper proof that would be rectified (b). "This," as Lord Eldon has observed (3), "is loose in one sense, as it leaves to every judge to say, whether the proof is that proper proof, which ought to satisfy him." The principal evidence on the part of the plaintiff, in this case, was the deposition of a witness, who had transacted the business for the Company, (the defendants,) but this evidence appeared to the court not sufficiently certain to be relied upon. Lord Hardwicke observed, that the proof in such a case ought to be the strongest possible; and as it did not sufficiently appear to the court, that the policy had been framed contrary to the intention and real agreement of the parties, the bill was dismissed. In the case of Baker v. Paine, on a bill filed for an account under a written agreement, the minutes and calculations, which had been previously made by the parties, were admitted in evidence, in order to prove a mistake made in the agree

(1) 2 Atk. 203.

(2) Henkle v. Roy. Ex. Assur. Comp. 1 Ves. 318., cited 6 Ves. jun. See also Motteux v. Lond.

333.

Assur. Comp. 1 Atk. 545. Thomas v. Fraser, 3 Ves. jun. 399. 10 Ves. jun. 227.

(3) 6 Ves. jun. 333.

(a) Vide Washburn v. Merrills, 1 Day 139.

2 Root 78. Chapman v. Allen, Kirby 399.

Cook v. Preston,

(b) Vide Graves & Barnewall v. Boston Marine Ins. Co. 2 Cranch 418.

ment by the person employed to draw it (4). And in a variety of cases where settlements have been drawn by mistake, contrary to the instructions of the parties, the mistake has been rectified by courts of equity, and the settlement made conformably to the instructions (5). The court however, will expect full and satisfactory evidence of the mistake and misapprehension of the party's intention, be*fore it will alter a settlement. In one case, where the parol evidence of the attorney, who had received verbal instructions, was offered, the court held, that as nothing appeared in writing under the hands of the parties to show their intention, the settlement could not be altered (1); and in another case, Sir Thomas Clarke is reported to have said, that he did not give a positive opinion as to the head of mistake, but he did not think the court had relied on parol evidence only (2).

4. Provisions in wills have in certain cases been enlarged by parol evidence, and trusts in equity raised, as against executors or other persons claiming an interest under wills, where it has appeared that the testator intend ed to make a further provision in his will, but omitted to insert it on receiving a promise, that, notwithstanding such omission, his intention should be carried into effect. Thus, in the case of Oldham v. Litchford (5), a witness was allowed to prove, that the defendant, who was the testator's executor and devisee of his real estate, had promised the testator, that he would pay the annuity bequeathed to the plaintiff, and that otherwise the testator would have charged the real estate with the payment. And on this evidence, it was decreed at the Rolls, that the real estate should be charged with the annuity: and this decree was afterwards affirmed on appeal to the court

(4) Baker v. Paine, 1 Ves. 457., cited in Rich v. Jackson, 6 Ves. jun. 336. n.

(5) Randal v. Randal, 2 P. Wms. 469. Jenkins v. Quinchant, 5 Ves. jun. 596. n. Barstow v. Kilvington, 5 Ves. jun. 593. Burt v. Barlow, 3 Bro. Ch. C. 451.

(1) Harwood v. Wallis, cited 2 Ves. 195.

(2) 1 Dick. 295. And see Shegold v. Boone, 13 Ves. jun. 373. 376, (3) 2 Vern. 506.

460

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of Chancery. In a later case (4), where a bill was filed
against an executor and residuary legatee, to have a be-
quest enlarged, it appeared from a paper written by the
defendant himself, that the testator, a few days before his
death, had mentioned to him what he had bequeathed to
the plaintiff, and that it was his wish that he should have
a larger sum; it was further proved, that after the testa-
tor's death, when the paper was shown to the defendant,
*he promised to perform the same according to the tes-
tator's request; another witness proved, that the testator
mentioned to him, in the presence of the defendant, the
annuity which he had bequeathed to the plaintiff, and that
it was his desire he should have a larger annuity, men-
tioning the sum; that the testator then requested the de-
fendant to see such annuity paid to the plaintiff, and the
defendant promised it should be done, as if it had been ex-
pressed in the will; and lastly, that the witness and the de-
fendant desired the testator to send for some person to draw
a new will, which the testator refused to do, saying he
would leave it to the defendant's generosity. "Upon this
evidence," said the Master of the Rolls, "the question is,
whether, by reposing that trust in the defendant, the testa-
tor was not prevented from making a new will. The de-
fendant ought to have told him, that if he did not put it
in his will, he would not do it. Instead of that, he pro-
mised to do it; upon which the testator refused to make a
new will. I am quite relieved," added the Master of the
Rolls, "from any difficulty as to the statute of frauds.
The question is, whether the confidence, that the defend-
ant would perform the trust he undertook, did not pre-
vent the testator from making a new will." The court
accordingly ordered the defendant to pay the increased
sum out of the assets, with costs; and, if the assets were

(4) Barrow v. Greenough, 3 Ves. jun. 152.

not sufficient for the costs, that he should pay them personally (a).

(a) Trusts arising or resulting by implication or construction of law, or transferred or extinguished by art or operation of law, are excepted in the statute of frauds; and hence if land be purchased by one person with the money of another who receives a deed in his own name, the trust in favour of the person advancing the consideration, may be proved by parol. 2 Fonb. Treat. of Eq. 119. Amb. 409. Jackson d, Kane v. Sternbergh, 1 Johns. Cas. 153. Foote v. Colvin, 3 Johns. Rep. 215. Gregory's Lessee v. Setter, 1 Dall. 193.

END OF THE SECOND PART.