#### Smith v. The executor of Amis.

"j t From Northampton. j

When the ground on which a party rests his complaint is mistake, the forum to which he must apply, is determined by the nature of the relief which he seeks: if equity only can relieve, he must apply there; if a court of'law can relieve, he may seek its aid. Few are the cases of mistake in which a court of law can relieve; but the rules of evidence are the same, no matter to which tribunal he applies. The ground on which a court of law refuses sometimes to hear evidence to prove a mistake, is, not that the evidence is improper to prove the fact, but that it is useless, because the court cannot relieve, however, clearly the mistake may be proved. Where one sold a tract of land, and executed a deed containing the usual acknow-ledgement of the purchase money, and afterwards discovered that a mistake had been made in counting the amount payed, whereby he was prejudiced, he was allowed,in a court of law, to show such mis-f£i?e by parol evidence, and on the promise of the purchaser to correct mistakes, to recover .the deficiency, notwithstanding the ac-knowledgement in his deed.

Tiie plaintiff declared in assumpsit on the common counts, and also that the plaintiff, on the 3d day of J anua-*470ry, 1823, sold to defendant’s testator a tract of land called Mush Island, for the sum of @38,000, payable in bonds; that in estimating the amount of said bonds at the time °*'maki”S payment, a mistake in adding up the different sums was committed against the plaintiff, amounting to @3071 88, of which due notice was given to the testator, and he promised and undertook to rectify the same. That various dealings had taken place between the plaintiff and defendant’s testator, and that in the settlement of the same, an error against plain tiff was committed to the amount of @3071 88, of which notice was given to the testator, and he promised to correct the same.

The plaintiff offered in evidence, a paper purporting to be “ a list of bonds paid by William Amis to Henry Smith for the Mush island plantation;” these bonds were added up on the list, and amounted, according to such addition, to @38,000; and the paper contained these words — “ I guarantee the above list of bonds to Mr. Henry Smith, provided he does not indulge longer than six months; and that he is fully authorized to institute suits on them for his benefit. (Signed) “ William Amis, by

“ John H. Amis.

«Test, Shirley Tisdale.”

Tisdale, who appealed to be the witness to the list of bonds was introduced by the plaintiff, and stated that the list of bonds produced was made by him; that the bonds actually passed from Amis to Smith; that he first made a rough calculation, and then copied the names and figures on the list produced. Some days afterwards, Amis told the witness that Smith had made known to him there was a mistake, and had applied to him to rectify it; that he had not done so ; and that he and Smith differed in the sums, and Amis requested the witness to find the rough sketch; the witness did so, and told Amis there was an error in the addition, to which Amis replied, that he was always willing to rectify mistakes. The ;estimony of Tisdale to show any mistake was objected to.

*471Another witness on the part of the plaintiff, one Be-berry, proved that in a conversation between Amis and Smith relative to the mistake, Amis said that every thing on his part should be righted: Amis afterwards told the witness that he had been informed by Tisdale there was an error, -mi that he, Amis, would do on his part all that was right.

The defendant relied on,his deed, executed by plaintiff, conveying to him Mush Island, and containing these words: •* in consideration of forty thousan-1. dollars to him in hand paid, by the said William Amis at and before the sealing and delivery of these presents, the receipt whereof the said Henry Smith dotli hereby acknowledge:” and contended, that there was no consideration for a promise express or implied; that the deed was a release, and extinguished plaintiff’s claim.

The jury was instructed, that a receipt and acknow-ledgement tinder seal of the purchase money for a tract of land, was conclusive evidence against a claim for the price of the land. But in the present case, if the jury believed there was a mistake in the settlement between the plaintiff and defendant’s testator in the transfer of the above notes, of which Amis had notice; and if there wa> also an express promise to pay ; then, notwithstanding the receipt contained in the deed offered in evidence by the defendant, the plaintiff might recover; and it was left to the jury to say, whether there was any mistake, and notice thereof to Amis, and whether there was an express promise.

There was a verdict for the plaintiff, a new trial was moved for and refused, and from the judgment rendered, defendant appealed.

Ruffin, for the appellant,

referred to Brocket v. Fóseme, (1 Hawks 64.)

Gaston, for the plaintiff,

now argued, that although the cases of Brocket v. Foseue, (1 Hawks 64.) and Graves v. *472Carter, (.0 flawks 576.) have decided that assumpsit will not lie for the consideration monev, after release or ac-knowledgement in the deed; yet they admit that the in-'j U1’cd person may have relief in equity by showing a mistake. So also do the cases in 2 Taunton 141. 1 Campb. 392. 2 Campb. 561. Norris’ Peake 190. Plaintiff, therefore. had a clear equitable right; and such equitable right is a sufficient consideration for an express promise. 1 Com on Con. 24. Lcev. Muggridge, (5 Taunton 56.) Davis v, Wright, (1 Vent. 120.) Smith v. Johns, (Cro. Jac. 257.) Hawkes v. Sanders, (Cowp. 289.) Saye and Sele v. Guy, (3 East 120.) M’Neill v. Quince, (2 Hay. 153.)

Hall, Judge.

In this case the contract was,that notes to a certain amount should be delivered to the plaintiff at the time the deed was executed. No credit was given, and both parties believed that the contrac! was executed. When the plaintiff discovered that there had been a mistake made in the calculation of the notes, he made it known to the defendant’s intestate; he agreed to rectify it; his failure to do so, is the foundation of this action. It is objected that the plaintiff shall not be heard to prove a mistake in that respect, because the deed sets forth that the Consideration had been received, and Brocket v. Foscue is relied upon. In that case a receipt in the deed for the consideration money was given, when it was known to the parties that the money was not paid: that is not this case. It was believed that notes to a certain amount were delivered. Suppose, according to the case of Hargrove v. Dusenbury,, (2 Hawks 326.) bank notes had been given instead of notes on individuals, and some or all of them had been discovered to be counterfeit; I think a receipt given for them would not stand in the way of recovery. It would not be denied but that the note had been received inpayment, and a receipt given, as both parties intended; but the goodness or badness of tiie notes would be the question. So it is when fraud or accident respecting the thing *473delivered appears to have happened; it may be examin-cd: so may a mistake as to the quantum of the thing delivered, whether it happened through accident or design. In all these cases, there can be no dispute about the truth of the receipt; it is admitted, and the thing it expresses was intended to be done; but it is an accident or a fraud dehors the receipt that is examinable. In action lor a deceit, a bill of sale given for property is no objection; the delivery is not disputed, as the bill of sale sets it forth. But the question relates to the quality of the thing delivered. In this case, the question does not .relate to the quality, but to the quantity of the thing delivered. The transition from the one to the other is natural, and, I think, founded in reason. Let the rule be discharged.

Henderson, Judge.

This may be taken either as a receipt or a release; and the fact of a mistake in the count,, ing of the notes or money, may be shown by parol evidence. either in a court of law or a court of equity. For such proof is let in, without impugning the rule that written evidence is better than parol; for it is not controverted that the written evidence speaks the truth. As all mortals must of necessity speak what is according to their knowledge, and that knowledge being limited, and liable to misconception, the mistake, when discovered, may he shown. And-the nature of the relief determines the forum to which application shall be made. If equity only can afford relief, application must be made there; and if a court of law can afford relief, application may be made there; but the rules of evidence are the same in each court. But if application should be made to a court of law, and the mistake when proven affords no ground of relief, the proofs are rejected; for why prove a fact upon which the court cannot act? Few are the mistakes which a court of law can grant relief on; for few mistakes require more than modification and apportionment. They do not require the entire destruction of the writing. *474It is not so with regard to fraud; that vitiates the whole writing. Hence the opinion that a mistake in a writing can be relieved against in a court of equity only. But for a frau(j jn a writing, courts of law and equity have concurrentjurisdiction. The mistake, if there was one, afforded a good consideration for the promise charged in the declaration; and the fact whether such promise was made, was fairly left to a jury; and if there was, as the jury have, found, .such a mistake and such a promise as charged, I think it affords a proper ground for relief in a court of law. Let the rule for a new trial be discharged.

The rest of the Court concurring,

Judgment was affirmed.