which the Statute of Frauds requires to be in writing, and which is in writing, is not rescinded by a subsequent agreement which is invalid under the statute by reason of its not being in writing (m); and this apparently is equally true in respect of all invalid agreements.

With regard to any contract which the parties have voluntarily put into writing, the rule is, that it is competent to them "at any time before breach of it, by a new contract not in writing, either altogether to waive, dissolve, or annul the former agreement, or in any manner to add to, or subtract from, or vary, or qualify the terms of it, and thus to make a new contract, which is to be proved partly by the written agreement, and partly by the subsequent verbal terms engrafted upon what will be thus left of the written agreement" (n).

The doctrines of the courts of equity in rectifying mistakes in deeds, so as to make them accord with the real agreement between the parties, may here be alluded to as an exception to the general rule under consideration. Thus, a lease which contained a larger quantity of land than was intended to be demised has been rectified as to the overplus (o). Again, "where (2) a settlement purports to be in pursuance of articles entered into before marriage, and there is any variance, then no evidence is necessary in order to have the

(m) Noble v. Ward, L. R., 2 Ex. 135.

(n) Goss v. Lord Nugent, 5 B. & Ad. 58.

(0) Mortimer v. Shortall, 2 Dru. & War. 363; Murray v. Parker, 19 Beav. 305.

(P) Per Lord Cranworth, Bold v. Hutchinson, 5 De G., M. & G. 568.

settlement corrected; and although the settlement. contains no reference to the articles, yet if it can be shown that the settlement was intended to be in conformity with the articles, if there is clear and satisfactory evidence showing that the discrepancy had arisen from a mistake, the court will reform the settlement and make it conformable to the real intention of the parties." Even where there are no articles the court will interfere to reform a settlement so as to make it correspond with the intention of the parties (q), if there has been a mistake common to both, and if it can be proved to the satisfaction of the court in what the mistake consists. It has been said that the rectification of a settlement "is a question of evidence, and evidence alone" ("): and this applies equally to other deeds. The real agreement between the parties"must be established by evidence, whether written or parol; if there be no previous agreement in writing, parol evidence is admissible to show what the agreement really was; if there be a previous agreement in writing which is unambiguous, the deed will be reformed accordingly; if ambiguous, parol evidence may be used to explain it in the same manner as in other cases where parol evidence is admitted to explain ambiguities in a written instrument" (s). There is, however, a disinclination to act upon parol evidence alone (t), and an opinion has

(9) Marquis of Exeter v. Marchioness of Exeter, 3 M. & C. 321. (r) Per Lord Romilly, Earl of Bradford v. Earl of Romney, 30 Beav. 438.

(s) Per Lord Romilly, Murray v. Parker, 19 Beav. 308.

(t) Mortimer v. Shortall, 2 Dru. & War. 374.

been expressed that it would be dangerous to set aside a portion of a deed, which deed has, as to the rest, been acted upon for a considerable time, upon no other testimony than that of the persons who are bound by the deed, who executed the deed, and who are to benefit by the deed being altered (u). In some recent cases, however, marriage settlements have been rectified after the death of the husband on the uncorroborated evidence of the wife (x). Although extrinsic evidence is not admissible to raise a presumption, it is admissible to rebut a presumption, even if that presumption arises upon the construction of the words of a will, and therefore in a case where the question was whether the bequest in a will was in satisfaction of a covenant in a settlement, it was held that, upon the words of the will, the presumption arose that the bequest was a satisfaction, and that evidence of declaration of the testator rebutting the presumption was admissible (y). Where there is a mistake in a will caused by the inadvertence of those who prepared it, and it consequently does not carry out the testator's intentions, the court will not correct it (z).

In returning to the general question of the admissibility of extrinsic evidence to affect written instruments, it is to be observed that a written instrument not under seal may be released or avoided by evidence of an intrinsically inferior nature; but a deed

(u) Bentley v. Mackay, 10 W. R. 595.

(x) Hanley v. Pearson, L. R., 13 Ch. D. 545; Lovesy v. Smith, L. R., 15 Ch. D. 655; 48 L. J., Ch. 809; 28 W. R. 979.

(y) Tussaud v. Tussaud, L. R., 9 Ch. D. 363; 47 L. J., Ch. 849; 26 W. R. 874.

(z) Newburgh v. Newburgh, 5 Mad. 364.

must be released by deed, and cannot be avoided by parol (a). A will must be revoked with the same solemnities which are required to give it validity originally.

The completion of a contract under a written agreement may be proved by oral evidence of performance, or of discharge from performance. The payment of money, under such a contract, may be shown either by a written receipt, or oral evidence of payment. Both modes of proof are primary in their nature, and therefore, in the absence of any rule which requires written proof, are concurrently and equally admissible forms of primâ facie evidence. It is to be observed, also, that performance of a contract under seal is proveable by parol. Such evidence does not release or avoid the original contract; it merely shows that it has been satisfied, and leaves its original validity unimpeached.

Although as a general rule there is no release of a debt in equity unless released in law, and mere voluntary declarations indicating the intention of a creditor to forgive or release a debt, if they are not evidence of a release at law, do not constitute a release in equity (b); yet there may be considerations which would prevent the debt from being enforced in a court of equity, although it might be subsisting at law (c); and where a voluntary declaration by a creditor has been acted upon by the debtor, the

(a) Unumquodque ligamen dissolvitur eodem ligamine quo et ligatur. (b) Cross v. Sprigg, 6 Hare, 552.

(c) Per Turner, L. J., Taylor v. Manners, L. R., 1 Ch. 56; 33 L. J., Ch. 128.

former will be bound to make his representation good (d).

It is allowable to show that a written contract, whether under seal or not, never existed legally; or that it was formed under circumstances which rendered it void ab initio. Thus, a defendant in an action on a written contract, may plead that it was void, as being made under circumstances of fraud, duress, or for illegal consideration; and he may prove such a plea by any species of parol evidence (e). He may also show that a bill or promissory note, on which he is liable primâ facie, was obtained from him without consideration, for the purpose of being discounted by the plaintiff or by a third party, between whom and the plaintiff there is a privity; or he may show any other similar failure of consideration; but he may not give parol evidence, which goes merely to limit his liability (ƒ). As a general rule, upon all written contracts not under seal extrinsic evidence will be admissible to support a plea of failure, or want of consideration; but in a deed a consideration is, in the absence of fraud, conclusively presumed.

Where it is distinctly stated in a deed that it is made in consideration of a sum of money paid down at the time of execution, a party is estopped from showing that no money passed (g); although he may

(d) Yeomans v. Williams, L. R., 1 Eq. 184; 33 L. J., Ch. 283. (e) Robinson v. Lord Vernon, 7 C. B., N. S. 231.

(f) Abrey v. Crux, 39 L. J., C. P. 9; 18 W. R. 63. (g) Rowntree v. Jacob, 2 Taunt. 141.