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shall not undertake to draw the line, which is to regulate the 1819. admission or exclusion of parol evidence in all cases. Such Philadelphia. an attempt would be dangerous, and is unnecessary. It will Cozens be enough to shew, that the evidence offered in the present STEVENSON. case, was not admissible, on any principle hitherto recognised. It will be recollected that the evidence offered, was not of any thing which passed between the parties, at the time of the execution of the lease, nor did it go to prove any mistake of the scrivener who drew the writing, in departing from his instructions, or any fraud, trick, or artifice of the lessor. It was offered on the broad ground of correcting the writing, by evidence of what had previously passed in conversation between the parties ; a ground which, if it be tenable, will make writings worse than nothing, because they will only lull people into a false security. Previous conversations may fairly be supposed to have been drawn to a conclusion by the written agreement. It would be against reason, therefore, to admit them in evidence, unless under special circumstances. One circumstance which justifies the admission of such evidence, is a fraud in obtaining the writing. This was the circumstance which governed Hurst's lessee v. Kirkbride, our leading case in favour of parol evidence. Hurst obtained the deed from Colonel Fell, by a false and fraudulent assertion, at the time of execution. The deed had not been delivered, when the grantor called on the grantee to take notice, that he did not sell him the manor of Pennsbury. To this the grantee assented, and thus got possession of the deed, which otherwise would not have been delivered to him. This being effected, he set up a claim to the manor, under that very deed. It was a trick, of which the Court were of opinion, he ought not to be permitted to take advantage, and there was no way of preventing it, but by admission of the evidence. Ever since that case, it has been the practice to receive parol evidence of what passed at the time of the execution of deeds, or, as it is sometimes expressed, at and before the execution. In this class of cases, are Field v. Biddle, 2 Dall. 171. M. Vinn v. Owen, 2 Dall. 173. Zantzinger v. Ketch, 4 Dall. 132. Dinkle's lessee v. Marshall, 3 Binn. 587, and Christ v. Dif. fenbach, 1 Serg. & Rawle, 464. But declarations made by one party at the time of execution, in the absence of the other, have been decided not to be admissible, in the case of

Vol. V.-3 H

STEVENSOX.

1819. Reichart v. Castator, 5 Binn. 109, and Wallace v. Baker, Philadelphia. 1 Binn. 610. The Lessee of Thompson v. White, 1 Dall. 424, COZENS turned on the fraud of Lawrence Salter, in obtaining a conson. veyance of his wife's estate, under a solemn promise to make

a settlement which he afterwards neglected to do. Another circumstance which justifies the admission of parol evidence, is mistake. A mistake, for instance, of a testator, in the name of a legatee, or a mistake of a scrivener in executing his in. structions to draw a conveyance. In Powel v. Biddle admi- nistrator of Mifflin, 2 Dall. 70, parol evidence was admitted, that a legacy to Samuel Powel was intended for a person whose name was William Powel, but supposed by the testator to be Samuel, and always so called by him in his life-time. Other circumstances under which it has been judged proper to admit parol evidence, are to be found in cases of trust, and in cases where the evidence is not inconsistent with the writing. But these being inapplicable to the present controversy, I forbear to enlarge on them. On the contrary, the general rule, that parol evidence shall not be admitted to destroy, controul, add to, or alter, a written instrument, has always been adhered to unless the case has been brought within one of the exceptions. Now what is there in the present case, which should take it out of the general rule? It is said by the plaintiff's counsel, that it tended to shev a mistake in drawing the writing. But the tendency was too vague and too general, for on the same principle all evidence which contradicts a writing, may be said to tend towards the proof of a mistake in drawing it ; and thus the rule which guards against the admission of such evidence would be prostrated. It is incumbent on him who alleges a mistake in drawing a writing, to lay a foundation, by proving in the first instance what instructions were given to the drawer. Nothing of that kind was offered here, so that the case cannot be supported on the principle of mistake. Neither do we think that it falls within any other exceptions heretofore recognised. It is the opinion of the Court, therefore, that the motion for a new trial should be rejected, and judgment entered for the defendant.

Motion for a new trial refused.

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THIS was a writ of error to the Court of Common An agree.

eot Vader Pleas of Northampton county, in an action of covenant brought by Hays against Bellas, in which there was a ver- defendant, is

eridence on dict and judgment for the plaintiff for 900 dollars.

the plea of non

est factum, The declaration recited, that by articles of agreement other contrac

though the made the 8th July, 1814, between James Hays of Easton, ting party is a

"third person Pennsylvania, of the one part, and Hugh Bellas of Sunbury, whose authoriPennsylvania, of the other, it was witnessed, that the plain-/ tiff, for 1000) dollars, viz. 100 dollars paid at the execution not shewn.

If an agent of the said articles to Henry L. Clark, agent of the plaintiff, sign and seala

in his 100 dollars on receiving the final patent deed, hereinafter deed mentioned, and 800 dollars, in 18 months from the delivery does not bind

bis priucipal, of the said deed, with interest from the end of 12 of the said though the 18 months, did by the said agreement, grant, bargain, sell, de be assign, and transfer to the defendant, the patent right of between the

defeodant and Phares Bernard's steam still and water boiler, for the county the principal heretofore Northumberland, in Pennsylvania, now Northum- by such agent:

nor will aoy

confirmation by such principal short of sealing the deed render bim liable upon it. In such case as the one party is not bound, so neither is the other.

It seems that a party would not be bound by the purchase of a patent right, who had supposed it to be valid, when in fact it was invalid: but such misconception cannot be taken advantage of by the defendant, where the equity is not spread on the record, but issue is taken on a want of consideration coupled with fraud.

On an issue on the validity of a patent right, the Judge is bound to instruct the jury on the validity of conflicting patents, in a suit by a vendor against a vendee of such patent right, though all the parties interested in those patents are not before the Court.

Where a vendor of a patent right agreed “ to complete and perfect a conveyance by deeds duly executed and acknowledged, and as soon as practicable forwarded” to the vendee, the conveyance must be executed and acknowledged as well as forwarded, as soon as practicable after the agreement, and any acquiescence by the defendant, dispensing with such performance, must be specially set forth in the pleadings.

lime, generally speaking, is not essential in equity : but considerable delay, where it is not ac. counted for, is considered as abandonment: or where it diminishes the value of the thing contracted for, is material.

A conveyance of an exclusive right to one and his assigns, to fabricate and use a patented invention within a certain district, conveys the right to vend the same, without express words to that effect.

Where the issue joined, was, whether the plaintiff had a patent right, dated 17th November, 1810, for “ a steam still and water boiler,” evidence of a patent, dated 16th January, 1811, for “a water boiler and steam still,” is inadmissible.

The Court are bound to instruct the jury, on points proposed by counsel on the trial, relevant to the issue, though they are not noticed in the argument; but they may regulate the practico otherwise, by rule of Court.

5 SR 427 í 26 SC 2319

Hars.

1819. berland, Union, and Columbia counties, to him the said dePhiladelphia. fendant, his heirs, and assigns forever; and the said James BELLAS did further agree by the same articles, to complete and per

fect the said conveyance by deeds duly executed and acknowledged, and as soon as practicable, forwarded to the said Hugh. And the said Hugh, did covenant by the said articles, upon receiving the said final and complete deed, to pay the said 100 dollars, and to execute a bond for the 800 dollars, payable in 18 months from the date, with interest after 12 of the said 18 months, &c. And the said James, in fact saith, that he did, on the 11th October, 1815, at, &c., complete and perfect the conveyaoce of the said patent right of Phares Bernard's steam still and water boiler, for the said counties, and did, as soon as practicable afterwards, viz., on the 11th October, 1815, tender the said deed, &c.; and though the plaintiff hath kept and performed all, &c. yet said defendant hath not paid the said 100 dollars, nor given the bond, for payment of the 800 dollars in 18 months from date of the deed, with interest after 12 months, &c.; and the defendant hath not kept his covenant, but hath broken the same, &c., to the plaintiff's damage, 1200 dollars.

The defendant craved oyer of the articles of agreement, which were as follows : “ This agreement between James Hays, esq. of Easton, Pennsylvania, by his agent Henry L. Clark, of the one part, and Hugh Bellas, of Sunbury, Pennsylvania, of the other part, witnesses, that the said James Hays, for the consideration of 1000 dollars, viz. 100 dollars now paid to the said agent, 100 dollars payable on receiving the final patent deed, and 800 dollars to be paid in 18 months from the delivery of the patent deed aforesaid, with interest commencing at the end of 12 of the said 18 months ; he, the said James, has granted, bargained, sold, assigned, and transferred, and does hereby grant, bargain, sell, assign, and transfer to the said Hugh, the patent right of Phares Bernard's steam still and water boiler, for the county heretofore Northumberland in Pennsylvania, now Northumberland, Union, and Columbia counties, to him the said Hugh, his heirs and assigns, for ever. And further the said James agrees to complete and perfect this conveyance by deeds duly executed and acknowledged, and as soon as practicable, forwarded to the said Hugh: and the said Hugh

covenants, upon receiving the said final and complete deed, 1819. to pay the second 100 dollars, and then to execute a good Philadelphia. and sufficient bond to the said James Hays, for payment of Bellas the residuary 800 dollars, in 18 months from the date, with H interest after 12 months, as aforesaid.

HUGH BELLAS. (seal.] Witness, H. ALWARD. HENRY L. CLARK. (seal.]

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" July 8th, 1814, the day of the execution of the preceding agreement, received from Hugh Bellas, the first payment therein mentioned, of one hundred dollars, for James Hays above mentioned.

Witness, H. ALWARD. HENRY L. CLARK.

HENA

The defendant pleaded, non est factum, covenants performed, and payment, with leave to add, alter, amend, and expunge, and leave to give the special matter in evidence. He also specially pleaded four pleas, in substance as follows:

1. That the plaintiff was not party to, or bound by the said agreement; Clark had no authority.

2. That the defendant was induced to execute the said articles by fraud of the plaintiff and his agent Clark, in asserting that they had power to convey to the defendant, the patent right of Phares Bernard, mentioned in the said articles, when they had no such power.

3. That the defendant executed the said articles by fraud of the plaintiff and his agent Clark, in asserting, that Bernard was the inventor, that the invention was new and useful, and that the right to it for Northumberland, Union, and Columbia, was vested in the plaintiff.

. That, generally, there was fraud on the part of the plaintiff and the said agent, inducing the defendant to execute the said articles : and no consideration or value was received by the defendant.

Replications—to the first pleas, concluding to the country and issue.

To the 1st special plea—that Clark had authority from Hays, and Hays was party to, and bound by the said articles; concluding to the country.

2d. That Phares Bernard, on the 17th November, 1810, obtained letters patent for a new and useful improvement;

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