to purchase the estate of B. for the price of the estate, without considering the mine, the contract will not be set aside (m). It is essentially necessary, in order to set aside such a transaction, not only that a great advantage should be taken, but it must arise from some obligation in the party to make the discovery (n); which brings it to a case of fraud.

If instruments be delivered up by mistake, and owing to ignorance of a transaction which would have made it conscientious to hold the instrument, and proceed at Law, a court of Equity will relieve (o).

Equity will not relieve against mispleading (p), or the inattention of parties in a court of Law, as by neglecting a proper defence (q), or to move for a new trial (r) in proper time. But if a plaintiff, at Law, recovers a debt against the defendant, and the defendant afterwards finds a receipt under the plaintiff's hand, or that the plaintiff's own book appears to be crossed, Equity will relieve (s); and this seems reasonable, inasmuch as the courts of Law would not, in such case, grant a new trial (t).

But though a court of Law will not grant a new Trial merely to enable a party to get fresh witnesses to prove his case, nor would a Court of Equity interfere on such a ground, because it would be an opening to perjury, after the party saw where the

(o) East India Company v. Donald, 9 Ves. 275.

(p) Stephenson v. Wilson, 2 Vern. 325. Blackhall v. Combs, 2 P. Wms. 72.

Ves. 28. Curtis v. Smaldridge, 1 Chan. Cas. 43.

(r) Bateman v. Willoe, 1 Sch. & Lefr. 201.

(s) Countess of Gainsborough v. Glifford, 2 P. Wms. 426; but see Barbone v. Brent, 1 Vern. 176.

(t) See Marriott v. Hamp

cause pinched, yet, where the admission comes from the party himself upon a Bill of Discovery filed after the Trial, it is very different, and the Court will in such case relieve (u).

And, where in an action against a bankrupt, he, for want of his commission, was unable to support his plea of a certificate, he was relieved, and a perpetual injunction granted (x).

So, where a defendant failed at Law for want of proving a copy of a judgment, a perpetual injunction was granted, the matter being such as was examinable in Equity, as well as at Law (y).

A Bill in Chancery was brought by a Defendant at Law, in an action upon an indebitatus assumpsit, on the ground, that allowances which ought in justice to have been made to him at the Trial were not made and Lord Hardwicke inclined to relieve (z). Cases of this description afford a ground to move for a new Trial, a more expeditious and proper remedy (a).

;

In regard to Mistake by Arbitrators, it has been holden, that if an Arbitrator in his award make a plain mistake, either in the Law, or in Fact (b), as where an Arbitrator miscalculates (c), or when the judgment is right but the premises are wron(d), a

(u) Hankey v. Vernon, 2 Cox 12.

(x) Blackhall v. Combs, 2 P. Wms. 69.

(y) Kent and Bridgman, 2 Eq. Abr. 159. S. C. Prec. Ch. 293.

(z) Villain v. Hyde, Ch. M. 1749, mentioned by Lord Mansfield in Foxcroft v. Devonshire, 2 Burr.942.

(a) As in the case of Fox

croft v. Devonshire, before cited.

(b) Ridout v. Payne, 3 Atk. 494, and S. C. 1 Ves. 11, 12. Corneforth v. Geer, 2 Vern. 705. Metcalf and Ives, 1 Atk. 63; but see Ching v. Ching, 6 Ves. 282. Young and Walter, 9 Ves. 364.

(c) Anon. MS. (d) Ibid.

bill in Equity may be filed against the party in whose favour the award is made, to set aside the award (e); provided the submission to the award has not been made a Rule of Court, in which case, according to the statute (9 and 10 Will. 3, c. 15,) application should be made to the Court which made the Rule, within the next term after the award made. If a reference be to a person to decide all matters in difference according to Law, and he means to decide according to Law and mistakes, the Court will set that right (f); but if a question of Law be expressly referred to an arbitrator, there, though the arbitrator is wrong in his conception of the law, the Award cannot be remedied (g): and though the law be not referred, if it be a doubtful point of law upon which the arbitrators have decided, and the Court on great deliberation should be of a different opinion, the Award will yet be good (h).

A defective Award as to Lands has been made good, and a party decreed to take a Fee, where by mistake, the word Heirs was omitted in the Award (i). The mistake, if not apparent on the face of the Award, may be made out by Evidence, and it must be made out to the satisfaction of the arbitrator; and the party must convince him that his judgment was influenced by that mistake, and that if it had not happened he should have made a different award (k.)

(e) Anon. 3 Atk. 644. (f) Young v. Walter, 9 Ves. 365.

(g) Ching v. Ching, 6 Ves. 282. Young and Walter, 9 Ves. 364. S. P. v. Morgan,

note; see, however, Kent v. Elstob, 3 East 13, on this point.

(h) 2 Atk. 494.

(i) Scott v. Wray, Rep. in Chan 84.

(k) Knox v. Symmonds, 1

A Mistake in Judgment by an Arbitrator is not a good ground for relief, for then there would be no end of suits (1).

It has been doubted whether after a general reference to arbitration, by parties in a suit, depending in the Court of Chancery, and made an order of a Court of Law, such order, by virtue of the statute (m), excludes the equitable jurisdiction over Awards in cases of Mistake (n); it has also been questioned, whether, if the submission is made a Rule of Court after a Bill filed to set aside the Award, the Jurisdiction is ousted (o). If one condition of the submission is to be restrained from bringing a bill in Equity against the arbitrator, a plea of the Award, it seems, to a Bill filed against them would be allowed (p).

Mistakes in settled Accounts are elsewhere con sidered (q); but it may here be observed that if an account be settled, and a deed cancelled under a mistake, relief may be obtained (r).

Mistakes in Wills are frequently relieved against in Equity.

As where there was a mistake in the statement in the Will, and the mistake was clear, and the intention plain, the Court rectified the mistake according to the intention (s).

And where a man

(2) See tit. " Account," post.

(r) East India Company v. Neave, 5 Ves. 173.

(s) Williams v. Williams, 2 Bro. C. C. 87. Milner and Milner, 1 Ves. 106; see also Phillips and Chamberlain, 4 Ves. 51. Campbell v. French, 3 Ves.

321.

recited in his Will that he owed B. 400 l., and charged his real estate with the payment of that sum, and in fact he owed 800 l.; the recital in the Will was considered as a mistake, and relievable (t). Where, however, a Testatrix bequeathed all her personal Estate to Trustees in trust, to sell, and pay all her debts, and in the next place to pay A. 300l. due on bond, and the Testatrix owed only 120l. to A. upon bond, the Court decreed payment of the whole 300l. (u). In all those cases where a mistake in a Will is relieved, it must appear on the face of the Will, otherwise no relief will be given. Where there is a complete and plain Will in writing, it cannot be altered or influenced by parole evidence as to the intention (x.) Evidence as to matter dehors the Will, to show the mistake, is not sufficient (y). Even the instructions for the Will are inadmissible to show a mistake (2). The mistake must be clear and demonstrable; and wherever there is a clear mistake, or a clear omission, recourse is to be had to the general scope of the Will, and the general intention to be collected from it; but the first thing to be proved is, that there is a mistake (a). Where the subject of a devise is described by reference to some extrinsic fact, extrinsic evidence is admissible to ascertain the fact; as where there is a devise of the estate purchased of A. or of the farm in the occupation in B., it may be shown by extrinsic evidence what estate it was that was purchased of A., or what farm it was in the occupation of B. It is dif

(t) Gofton v. Mills, Prec.

Ch. 9.

(u) Whitfield v. Clemment, 1 Meriv. 402.

(x) Nichols v. Osborne, 2 P. Wms. 421.

(y) 2 Atk. 373,

() Murray v. Jones, 2 Ves. and Bea. 318.

(a) See Ridout v. Dowding, 1 Atk. 419. Mellish and Mellish, 4 Ves. 47.