dence that at the time tion of a written form a cove ed in the lease, but omitted. parol evi the defendants, who avowed for one year's rent in arrear. On the lessor the trial, the defendants gave in evidence a lease, dated the 17th undertook of January, 1804, executed by one of the one part, and by the of the execu plaintiff of the other part, of a mill and certain lands, at the an-, nual rent of 420 dollars. The lease contained a number of covlease, to per enants, to be performed by both parties. The plaintiff offered nant agreed to give in evidence, that at the time of contracting, and before to be insert the lease was reduced to writing, or executed, it was agreed between the lessors and the lessee, that the lessors would, on or before the first day of September, then next ensuing, cause or procure, at their own proper costs and charges, the tail race of the mill to be dug nine inches deeper, and three feet wider, so as to void or carry off the water, that would be required to turn two water-wheels, then built and set up in the mill; and that this contract was to form one of the covenants in the lease, and to be included therein. That the lessors and the plaintiff went to a public house, within one fourth of a mile of the mill, and Frederick Oyer, esq. commenced writing the lease. Before it was completed, as the plaintiff had not seen the wheels in operation, he returned in company with the lessors to the mill, and procured them to be set to work; he then informed the lessors he could not give one-half or one-fourth of the rent they asked, (420 dollars) unless the tail-race was dug out, as before mentioned: That Peter Diffenbach, one of the lessors, in the presence of the others, and with their approbation and consent, replied, "if you will give the 420 dollars per annum, we will engage to complete the tail race to your satisfaction, and so as to void all the water that may be made use of in turning the said wheels, without stop or hindrance to them." They then returned to the public house, where the lease was written; but before the execution of it, finding the said covenant was not inserted, the plaintiff objected on that account; and which the lessors said was of no consequence, they were men of honor, and what they promised should be punctually performed in the months of June, July, or August, then next ensuing; and it was all one to him, the lessee, or to them, the lessors; whether inserted or not, they would perform i. Trusting to the assurances thus given, the lease was executed. That the said covnant was not performed during the continuance of the lease, and that the plaintiff has sustained damage thereby, to more than the amount of rent now demanded. To this testimony the defendants objected, and it was rejected by the court, and the plaintiff excepted. Tilghman, C. J. The lease was in writing, and the question is, whether the parol evidence mentioned in the bill of exceptions, was receivable? Whether the plaintiff could have made good his assertion, is not now to be enquired of; but, undoubtedly, he should have been allowed an opportunity of doing it. I am, therefore, of opinion, that the judgment should be reversed, and a venire de novo awarded. Yates, J. I think the parol evidence ought to have been allowed to go to the jury, and therefore, the judgment should be reversed. Brackenridge, J. concurred. 10. NEIL V. CHEVES, May T. 1830, 1 Bailey's S. Ca. Rep. 537. S. To show The court, in this case, held parol evidence admissible to show, that the that the time, specified in a written agreement, for the delivery time specifi of goods, was subsequently enlarged by the parties; so, where ed in a writ no time was fixed by the written agreement, evidence was receiv- ment for the ed to show, that it was afterwards fixed by parol. 11. ten agree delivery of goods, was subsequent. ly enlarged by the par the indorser after it had BROCK V. THOMPSON, Dec. T. 1829, 1 Bailey's S. Ca. Rep. 322. ties. Assumpsit upon a promissory note, drawn by J. L. M'Kinney, In an action by the hold in favor of the defendant or bearer, and indorsed by him to the er against plaintiffs. The note was payable on the 18th September, 1826, of a note, and was negotiated to the plaintiffs a short time afterwards. negotiated The plaintiffs proposed to prove by parol, that at the time of the become due transfer, it was agreed between them and the defendant, that the parol evi maker should have certain specific indulgence as to time. This stipulation was objected to on the ground, that it went to contradict the in- by the en dorsement, by varying its legal effect, but the presiding judge held the evidence admissible. dence of a dorser, at the time of the transfer that the ma be indulged er, is admis Per Cur. Johnson, J. This court concurs with the presiding ker judge, in the views he has taken of the admissibility of the pa- as to time rol evidence, going to show that the indulgence given to M'- by the hold Kinney, the maker, was with the consent, and under an agree- sible to ment with the defendant; as well as to the effect of the dili- show the de gence used by the plaintiffs, in making a demand on M'Kinney, gence, to and giving notice to the defendant, of the non-payment of the holder was note. 12. ANDERSON V. PEARSON, Jan. T. 1831, 2 Bailey's S. Ca. Rep. p. 107. gree of dili which the bound. It is compe This was a suit to recover a sum of money, which the plain- tent for one ties to a note to prove by pa rol that he of two sure tiff had been compelled to "pay a surety on a promissory note made by one B. The defendant was also a surety to the same note; and the plaintiff offered parol testimony to show, that designed as fendant had undertaken to indemnify him, and that the plaintiff surety both to his co sur had signed only in consideration of that undertaking. This tesety and the timony was objected to, but the objection was overruled. principal, and on an undertak Motion in arrest of judgment, on the ground that it was not ing by his competent to plaintiff to prove by parol testimony, an agreement cosurety to varying from the face of the note. indemnify him. Per Cur. Harper, J. It was not offering parol evidence to vary or explain the written contract; it was a collateral contract, independent of, and consistent with it. Motion denied. 13. But not to show the decree of a court. GALLAGHER, &c. v. KENEDY, Oct. T. 1828, 2 Rawle's Penn. Rep. 163. Per Cur. Smith, J. As to the first exception, the court begrounds of low, believing that parol evidence was incompetent to show the an order or grounds of an order, or decree of a court, rejected the evidence offered, and very correctly. I believe no case can be found, in which parol evidence, respecting the grounds of the judgment of a court, has been admitted. See Leg v. Leg, 8 Mass. Rep. 99. The court was, undoubtedly, correct in refusing evidence, calculated to show the grounds on which it had decided, and made a decree in another proceeding. II. WHEN TO CONTRADICT OR CONTROL A WRIT- 1. Parol proof to show a FITZBURGH V. RUNYON, Oct. T. 1811, 8 Johns. N. Y. Rep. 375. Assumpsit upon a promissory note payable in January 1810. mistake in a The defendant offered to prove, that there was a mistake in the admissible. note, the time of payment being in January, 1811, instead of January, 1810. This evidence was objected to, but the objec note held in * Where the law requires written evidence, oral testimony cannot be received. It would be to subvert the rule, and admit one species of evidence in the place of another. The rule may be illustrated by the principle, as applied to the examination of prisoners, before a magistrate, on a charge of felony. The facts stated in the examination, cannot be admitted by oral testimony, unless it be shown, the oxamination was not taken in writing, pursuant to the statute. So also in a will of lands, where the legatee's name is left blank, parol evidence cannot supply the tion was overruled, and the evidence was admitted. The plaintiff excepted. Per Cur. The parol proof to show that there was a mistake in the written contract, was inadmissible. It is a well settled rule, that such proof is never admissible, in a court of law, to contradict a writing. omission. It cannot be admitted to contradict a record; 1 Roll. Abr. 757. Or to give in evidence any matter not appearing upon its face., It is a general rule, and was so even before the statute of frauds, that no parol evidence can be admit ted to control what appears on the face of a deed or will, &c. not only to avoid per juries, which the admission of such evidence might give rise to, but from a pro sumption, that whatever the parties might have in contemplation, at the time, was reduced to writing; 13 Petersdorff's Abr. 110; Baylis v. Attorney General, Bull. N. P. 298. A defect in a formal instrument cannot be supplied; Hunt v. Hort, 3 Bro. C. C. 311. Woolam v. Hearn, 7 Vesey, 211. Or in contracts between parties, for to admit oral evidence to supersede them, would be making a new contract; The Countess of Rutland's case, 5 Co. 26; Haines v. Hare, 1 Hen. Blk. 659; Clifton v. Wamsley, 5 T. Rep. 564; Doe v. Westlake, 4 B. & A. 57; Harris v. Bishop of Lincoln, 2 Peere Wms. 135; Baker v. Dewey, 1 B. & C. 704. Nor is parol evidence admissible, to vary a written instrument, for after it is rcduced to writing, it is supposed to contain the deliberate intention of the parties; Rubison v. M'Donnell, 2 B. & A. 134; Fell v. Hawkins, 1 Moore, 535. And the rule applies with still greater force to deeds and instruments under seal; Toussaint Henry, v. Martinnant, 2 T. R. 100; Warren v. Consett, 8 Mod. 107; Pearson v. 5 T. Rep. 6. If one specific consideration be mentioned in a deed, proof of any other consideration cannot be given; Strattan v. Rasta:l, 2 T. R. 366; Peacock v. Monk, 1 Vesey, 128. And where the written agreement may be explained, nothing can be added, unless there be a new substantive agreement, independent of it; not where the oral matter was merely passing at the time the agreement was redu ced to writing; Rich v. Jackson, 4 Bró. C. C. 519; Haines v. Hare, 1 H. Blk. 659; Shelling v. Farmer, 1 Stra. 646; Rawson v. Walker, 1 Starkie's Cas. 361; Uyde v. Walters, 3 Campb. 16; Weston Emes, 1 Taun. 115. Nor can parol evidence be permitted to add to the terms of a written agreement, for it is said, that an agreement by the admission of additional terms, becomes a new agreement, as if the terms of the agreement itself had been changed; Cuff v. Penn. 1 M. & S. 21; Lord Milton v. Edworth, 6 Bro. P. C. 587. As for instance what was said by the auctioneer, at the time of the sale of a quantity of timber, when the conditions of sale was in writing; Powell v. Edwards, 12 East. 6; Higginson v. Clowes, 15 Vesey, 516. Nor is parol evidence admissible to prove a different intention of the parties, from that expressed in the instrument. As that a promissory note, should not be paid when due, but should be renewed; Hoar v. Graham, 3 Campb. 57; Hogg v. Snaith 1 Taun. 347. Or that a bond absolute on its face was intended as an indemnity; Mease v. Mease, Cowp. 47: Jeacock v. Falkner, 1 Bro. C. C. 295. Nor can parol evidence of the intention of the testator be admitted, to contradict the terms of a will: Lowfield v. Stoneham, 2 Stra. 1261: Brown v. Salwin, Cas. Temp. Talbot, 240: Or to alter the legal construction of words: ibid. Maybank v. Brooks, Bro. C. C. 84; Cheney's case, 5 Co. 68: Cole v. Rawlinson, 1 Salk. 234; And see, Oates v. Bryden, 3 Burr. 1395: Doe v. Fyldes, Cowp. 283; Doe v. Sir A. Chichester 4 Dow. 65. 2. Or to con tradict the record of a town clerk. Or to con tradict the HOAG AND DOW, DEFENDANTS BELOW, V. DARFEY, PLAINTIFF Assault and battery. The defendants justified under the authority of Hoag, a constable of the town. It appeared, on the trial below, that the town clerk who recorded the proceedings, made a mistake in the record of the warning of that meeting, and inserted "19th," instead of "29th," by which, on the record, it would appear that there were not twelve days notice. A witness was offered to prove, that the original warning, stated the 29th, instead of the 19th, but the court rejected the witness. Judgment for the plaintiff below. Per Cur. Skinner, C. J. It is a settled principle of law, that record evidence cannot be contradicted by parol proof; but it is insisted, that a mistake in a record, may be corrected by such testimony, and that the evidence of the mistake in this case, was improperly rejected. The record states the warning of the meeting to have been on the 17th, and the meeting to have been holden on the 19th January. Surely, if there was a mistake in this record, (which was undoubtedly the case,) the evidence offered would stand directly opposed to the record, and is nothing short of contradicting it, and substituting parol for record testimony. Judgment affirmed. 3. M'LEAN V. HUGARIN, May T. 1816, 13 Johns. N. Y. Rep. 184. Hugarin brought an action of trover, in the court below, to recover the value of a spinning wheel. M'Lean, the defendant of justice below, pleaded a former recovery, for the same cause, in which proceedings Hugarin set off the present demand, which was tried in that acbefore him. tion. The certificate of the justice, of the proceedings on the a as to in a cause former trial, being produced, the plaintiff below, (Hugarin,) offered testimony to show, that the demand for the spinning-wheel was withdrawn, and not submitted to the justice; this evidence was admitted, and the fact being proved, the justice gave judgment for Hugarin, the plaintiff below. Per Cur. In the case of White and Hall v. Hawn, 5 Johns. Rep. 351, this court decided, that parol evidence of a former trial was inadmissible. In Posson v. Brown, 11 Johns. Rep. 166, the same principle was recognised, and it was there said, |