sion of the court rested principally on Clinan v. Cooke, 1 Sch. & L. 22, and Elder v. Elder, supra. One justice, however, dissented. He seems to predicate his views upon a strong anxiety to preserve intact the jurisdiction of equity courts in matters of fraud, accident, and mistake, and to have been influenced by Gillespie v. Moon, (cited below), though admitting the latter case to be contrary to the preponderance of authority. But he bases his decision on grounds entirely foreign to this question.

The courts of Michigan also contribute their support to this side of the doctrine. In a decision there rendered, (Climer v. Hovey, 15 Mich. 18), it is held that equity may prune down a land contract which includes a larger subject-matter than was originally intended by the parties, but that nothing can be supplied or added, on parol evidence, to a contract too narrow, or void under the statute. The sole ground assigned is the statute itself. The principle of equitable estoppel is also recognised. The court relies upon the note to Woollman v. Hearn, cited below, and Elder v. Elder. Again, in a later case," It is not the policy of courts of equity to enlarge the exceptions to the Statute of Frauds. Where parties see fit to neglect the means it provides for putting their agreements into a form which will prevent disputes, they must usually be content to trust to each other's promises, and not ask the courts to relieve them against the consequences of their own carelessness:" Webster v. Gray, 37 Mich. 37.

In a somewhat similar case the writing produced contained no sufficient description of the land to be conveyed, but it appeared that a subsequent verbal agreement between the parties fixed it accurately. But the court refused to reform the contract, stating that courts of equity will not ordinarily compel the specific performance of a contract with variations or additions, or new terms to be made and introduced into it by parol evidence, for in such a case the attempt is to enforce a contract partly in writing and partly by parol, and courts of equity deem the writing to be higher proof of the real intentions of the parties than any parol proof can generally be, independently of the objection which arises under the Statute of Frauds :" Whiteaker v. Vanschoiack, 5 Oreg. 113.

A New York case holds that the defendant in a suit for specific performance may set up in defence, by parol evidence, that the contract does not express the true intent of the parties, through fraud, surprise, or mistake; but, by implication at least, refuses

the same privilege to a party complainant: Best v. Stow, 2 Sandf. Ch. p. *298. Other cases are cited in the note: Dennis v. Dennis, 4 Rich. Eq. (S. C.) 307; Brooks v. Wheelock, 11 Pick. 439; Miller v. Chetwood, 2 N. J. Eq. Rep. 199; Nurse v. Seymour, 13 Beav. 254; Woollam v. Hearn, 7 Ves. Jr. 211.

Finally, in the "Leading Cases in Equity" there is found a very able note to Woollam v. Hearn, by the American editor, discussing the whole subject of written instruments as varied or affected by parol, including the doctrine now under consideration. The note is too long to be more than briefly mentioned here. But it contains an elaborate review of all the authorities on the subject, approves Glass v. Hulburt, distinguishes Gillespie v. Moon, and its general trend is strongly in favor of supporting the statute: Leading Cases in Equity, Vol. II., Pt. I., p. 944 et seq. See particularly pp. 994-5-6.

But there is also an imposing array of authorities on the other side of the question. And in the first place, the case of Glass v. Hulburt has been often and seriously assailed. Pomeroy thinks that the allowance of reformation of the contract, in such cases, is not only supported by a great preponderance of judicial opinion, but is in entire accordance with the fundamental principles of equity jurisprudence; and he obviates the force of Glass v. Hulburt by showing that at the time that decision was rendered the equity jurisdiction of the Massachusetts and Maine courts was very limited, being conferred entirely by statute, and that it was the repeated declaration of those courts that they could not and would not extend their jurisdiction, thus defined, by implication : 2 Pomeroy's Equity Jurisprudence, § 866 et seq. This answer, however, is scarcely satisfactory, since the only question is, whether or not the jurisdiction of any court of equity can be large enough to work a virtual repeal of the Statute of Frauds. The leading case in favor of the equity side of the question is Gillespie v. Moon, mentioned above. The decision was rendered by Chancellor KENT in 1817. Here the premises to be conveyed were described, in the written agreement, by metes and bounds, adding the clause "200 acres, more or less," and the bounds given enclosed a tract of 250 acres. The bill was for a reformation of the contract, to make it include only the 200 acres originally intended. The chancellor says: "Whether such [parol] proof be admissible on the part of a plaintiff who seeks specific performance of an agreement in writing, and

at the same time seeks to vary it by parol proof, has been made a question." But the court firmly inclines to the opinion that it is so admissible: Gillespie v. Moon, 2 Johns. Ch. 585. But note that this case is held not inconsistent with Elder v. Elder, supra, since it limits the effect of an instrument, but does not seek to extend it beyond what its terms import.

Following this comes another decision by the same eminent jurist: Keisselbrack v. Livingston, 4 Johns. Ch. 144. After noticing the English doctrine, that parol proof is admissible, in such cases, in favor of a defendant, but not in behalf of a plaintiff seeking specific performance. "And why should not the party aggrieved by a mistake in the agreement have relief as well where he is plaintiff as where he is defendant. It cannot make any difference in the reasonableness and justice of a remedy whether the mistake was to the prejudice of one party or the other. If the court has a competent jurisdiction to correct such mistakes (and that is a point understood and settled), the agreement, when corrected and made to speak the real sense of the parties, ought to be enforced as well as any other agreement perfect in the first instance. It ought to have the same efficacy and be entitled to the same protection, when made accurate under the decree of the court, as when made accurate by the act of the parties."

Again, "In Elder v. Elder it is said, 'a deed conveys one farm when it may be proved by parol that it should have conveyed two. Here equity cannot relieve without violating the statute.' And it is thus attempted to distinguish that case from Gillespie v. Moon, where the deed conveyed too much land. If this position rests upon the provisions of the Maine statute, it is well enough. But we cannot accede to it as the true rule of chancery jurisprudence, to be derived from the adjudged cases in England and America. In our opinion, a court of equity is competent to correct and reform any material mistake in a deed or other written agreement, whether the mistake be the omission or insertion of a material stipulation; and whether it be made out by parol testimony, or be confirmed by other more cogent proofs. And the same rule applies to contracts within the operation of the Statute of Frauds:" Tilton v. Tilton, 9 N. H. 392. Affirmed in Bellows v. Stone, 14 Id. 175.

Again, it is held that where the evidence of mistake is clear and free from doubt, there exists no reason why the court should not correct the agreement and then decree its specific performance as

Corrected: Mosby v. Wall, 23 Miss. 81. And, "there certainly can be no doubt now that it is competent to a party in a court of equity to offer parol evidence of a mistake in an agreement in writing relating to lands, to have it rectified, and then specifically executed as rectified. Cases establishing a contrary doctrine may readily be found, but these were repudiated by Chancellor KENT, who permitted the parol proof to be offered establishing the mistake, reformed the agreement according to the proof, and specifically executed it as reformed:" Philpott v. Elliott, 4 Md. Ch. 273. And again, Nothing is better settled in this state than that not only can the ambiguities of a written instrument be explained by parol, but it may, in the same manner, be varied, added to, or even contradicted where it is shown that but for the oral stipulations made at the time, the party affected would not have executed it :" Caley v. Phila. & Chester R. R. Co., 80 Pa. St. 370.

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One of the broadest and most sweeping opinions is reported from Georgia. After giving an emphatic endorsement to Gillespie v. Moon, we hold that parties, whether plaintiffs or defendants, whether seeking to set aside and cancel an agreement, or reform and enforce it, can be relieved, as well on account of mistake as fraud. It would be monstrous to suppose that the arm of the judiciary of Georgia was too short, or too weak, to reach and relieve, provided the contract variant from the true one could once be got into writing!" Rogers v. Atkinson, 1 Kelley 24-5. Affirmed in Wall v. Arrington, 13 Ga. 91.

Judge STORY gives the following views: "But the case intended to be put differs from each of these. It is where the party plaintiff seeks, not to set aside the agreement, but to enforce it when it is reformed and varied by the parol evidence. A very strong inclination of opinion has been repeatedly expressed by the English courts, not to decree a specific performance in this latter class of cases; that is to say, not to admit parol evidence to establish a mistake in a written agreement, and then to enforce it, as varied and established by that evidence. On various occasions such relief has, under such circumstances, been denied. But it is extremely to perceive the principles upon which such decisions can be supported, consistently with the acknowledged exercise of jurisdiction in the court to reform written contracts, and to decree relief thereon. In America, Chancellor KENT, after a most elaborate consideration of the subject, has not hesitated to reject the distinc

difficulty

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tion as unfounded in justice, and has decreed relief to a plaintiff standing in the precise predicament:" 1 Story's Equity Jurisprudence, § 161.

Finally, we quote from a well-known writer on equity. "The principles which underlie the theory advocated by the Massachusetts court, if carried out to their legitimate results, would work a virtual revolution in equity jurisprudence, would confine its most salutary remedial functions within very narrow limits, and would overturn doctrines which have been regarded as settled since the earliest periods of the jurisprudence. They would greatly abridge the remedy of reformation; they would prevent the court from establishing and enforcing parol contracts which the defendant's actual fraud had prevented from being put into writing; and, in fact, these principles cannot be reconciled with the doctrines upon which the jurisdiction of equity to enforce parol contracts in cases of part performance is vested. The Statute of Frauds is no real obstacle in the way of administering equitable remedies so as to promote justice and prevent wrong. Equity does not deny nor overrule the statute; but it declares that fraud or mistake creates obligations and confers remedial rights which are not within the statutory prohibition; in respect of them, the statute is uplifted:" 2 Pomeroy's Eq. Jur., § 867.

Of course it is everywhere understood that any act distinctly amounting to a part performance of the agreement takes the case out of the statute.

Saint Paul, Minn.

H. CAMPBELL BLACK.

RECENT ENGLISH DECISIONS.

High Court of Justice; Queen's Bench Division.

SHAW v. PORT PHILLIP AND COLONIAL GOLD MINING CO. The secretary of a joint-stock company issued a share certificate which purported to be signed by a director and by the secretary, and bore the seal of the company. The director's signature was forged and the seal had been improperly affixed. It was the regular and authorized duty of the secretary to have transfers registered, to procure the preparation, execution, and signature of certificates with all requisite and prescribed formalities, and to issue them. The plaintiff, to whom the shares were transferred by the person to whom the forged certificate was issued, applied to the company to have the shares registered in his name. The company refused to register them on the ground that the certificate was forged.

Held, that the company having made it the duty of their secretary and within the