In this case the contract was,that notes to a certain amount should be delivered to the plaintiff at the time the deed was executed. No credit was given, and both parties believed that the contrac! was executed. When the plaintiff discovered that there had been a mistake made in the calculation of the notes, he made it known to the defendant’s intestate; he agreed to rectify it; his failure to do so, is the foundation of this action. It is objected that the plaintiff shall not be heard to prove a mistake in that respect, because the deed sets forth that the Consideration had been received, and Brocket v. Foscue is relied upon. In that case a receipt in the deed for the consideration money was given, when it was known to the parties that the money was not paid: that is not this case. It was believed that notes to a certain amount were delivered. Suppose, according to the case of Hargrove v. Dusenbury,, (2 Hawks 326.) bank notes had been given instead of notes on individuals, and some or all of them had been discovered to be counterfeit; I think a receipt given for them would not stand in the way of recovery. It would not be denied but that the note had been received inpayment, and a receipt given, as both parties intended; but the goodness or badness of tiie notes would be the question. So it is when fraud or accident respecting the thing *473delivered appears to have happened; it may be examin-cd: so may a mistake as to the quantum of the thing delivered, whether it happened through accident or design. In all these cases, there can be no dispute about the truth of the receipt; it is admitted, and the thing it expresses was intended to be done; but it is an accident or a fraud dehors the receipt that is examinable. In action lor a deceit, a bill of sale given for property is no objection; the delivery is not disputed, as the bill of sale sets it forth. But the question relates to the quality of the thing delivered. In this case, the question does not .relate to the quality, but to the quantity of the thing delivered. The transition from the one to the other is natural, and, I think, founded in reason. Let the rule be discharged.
This may be taken either as a receipt or a release; and the fact of a mistake in the count,, ing of the notes or money, may be shown by parol evidence. either in a court of law or a court of equity. For such proof is let in, without impugning the rule that written evidence is better than parol; for it is not controverted that the written evidence speaks the truth. As all mortals must of necessity speak what is according to their knowledge, and that knowledge being limited, and liable to misconception, the mistake, when discovered, may he shown. And-the nature of the relief determines the forum to which application shall be made. If equity only can afford relief, application must be made there; and if a court of law can afford relief, application may be made there; but the rules of evidence are the same in each court. But if application should be made to a court of law, and the mistake when proven affords no ground of relief, the proofs are rejected; for why prove a fact upon which the court cannot act? Few are the mistakes which a court of law can grant relief on; for few mistakes require more than modification and apportionment. They do not require the entire destruction of the writing. *474It is not so with regard to fraud; that vitiates the whole writing. Hence the opinion that a mistake in a writing can be relieved against in a court of equity only. But for a frau(j jn a writing, courts of law and equity have concurrentjurisdiction. The mistake, if there was one, afforded a good consideration for the promise charged in the declaration; and the fact whether such promise was made, was fairly left to a jury; and if there was, as the jury have, found, .such a mistake and such a promise as charged, I think it affords a proper ground for relief in a court of law. Let the rule for a new trial be discharged.
The rest of the Court concurring,
Judgment was affirmed.