§ 500. An important question, having a near relation to the point we are now considering, has received the attention of Mr. Baron Alderson, namely, whether a court of equity, upon a bill filed for that purpose, will first reform a written agreement for real estate, so as to embrace or exclude certain property, and then enforce it as reformed, the mistake being admitted by the answer. In the case before him, the answer did not admit the mistake, and the learned Baron thought it clear that he could not decree a performance, after reforming the agreement by parol evidence admitted for that purpose. But upon the hypothesis of the answer's admitting the mistake, he says: "The case might have fallen within the principle of those cases at law where there is a declaration on an agreement not [?] within the statute, and no issue taken upon the agreement by the plea; because in such a case it would seem as if, the agreement of the parties being admitted by the record, the case would no longer be within the statute. I should then have taken time to consider whether, according to the dicta of many venerable judges, I should not have been authorized to reform an executory agreement for the conveyance of an estate, when it was admitted to have been the intention of both parties that a portion of the estate was not to pass."1

1 Newton v. Swazey, 8 N. H. 9. See James v. Rice, Kay, Ch. 231; Esmay v. Groton, 18 111. 483; Angel v. Simpson, 85 Ala. 53.

2 Spurrier v. Fitzgerald, 6 Ves. 548. 3 Patterson v. Ware, 10 Ala. 444.

4 Attorney-General v. Day, 1 Ves. Sr. 218; Laconr. Mertins, 3 Atk. 1.

§ 501. The general rule is undoubtedly clear, that in order to entitle the plaintiff to the benefit of the agreement admitted by the answer, it must appear to be, in all its essential terms, the same with that charged in the bill;2 although an immaterial variation would not be regarded, and although, in certain cases, a plaintiff may be allowed to amend his bill after answer, in order to avail himself of the agreement admitted by it, or at least, may have his bill dismissed, without prejudice to his filing a new bill adapted to such admitted agreement.3 And it has been held by Sir William Grant, at the Rolls, that the rule denying to the plaintiff a decree for the execution of a different sort of agreement, an agreement of a different import or tendency from that laid, was not infringed by allowing the plaintiff, who alleged a written agreement, the benefit of the defendant's admission that such an agreement was made, though by parol; remarking that the difference between a written and a parol agreement consisted in the mode in which they were evidenced, an objection which did not at all depend on the Statute of

1 Attorney-General v. Sitwell, 1 Younge & C. 583. That a Court of Equity may reform a deed of land, and compel the conveyance of the land agreed upon, though only by parol, see Johnson v. Johnson, 8 Baxter (Tenn.) 261.

2 Legal v. Miller, 2 Ves. Sr. 299; Legh v. Haverfield, 5 Ves. 452; Willis v. Evans, 2 Ball & B. 225; Lindsay v. Lynch, 2 Schoales & L. 1; Harris v. Knickerbacker, 5 Wend. (N. Y.) 638.

3 Lindsay v. Lynch, 2 Schoales & L. 1; Harris v. Knickerbacker, 5 Wend. (N. Y.) 638; Willis v. Evans, 2 Ball & B. 225; Deniston v. Little, 2 Schoales & L. 11, note; Pleasonton v. Raughley, 3 Del. Ch. 124.

Frauds.1 It may be a question whether proof of acts of part-performance in the case makes it an exception to the general rule above referred to. In Mortimer v. Orchard, where the bill stated a certain agreement, the complainant's witness proved a different one, and the two defendants by their answer set up an agreement which differed from both, Lord Loughborough thought the bill should in strictness be dismissed, but, as there had been a part execution of some agreement between the parties, and there were two defendants who proved the agreement set up by their answer, he decreed a specific performance of the agreement confessed by the answers, and required the plaintiff to pay the costs.2 His Lordship, it would seem, did not come to that conclusion altogether without difficulty, and the doctrine of the case appears to conflict with the established rule in regard to part-performance, that it must appear to be in pursuance of the contract upon which relief is to be granted.

§ 502. The authority of this case would seem to be somewhat shaken by the decision of Lord Redesdale, in Lindsay v. Lynch.3 There, the plaintiff, having been previously in possession of certain premises, alleged a parol agreement by the lessor to give him a further lease for three lives. The lessor defendant, by his answer admitted an agreement to give him a further lease for one life, whereupon the plaintiff amended his bill, claiming still the lease for three lives, but praying, in the alternative, that if that was not decreed, he might have the lease for one life. The plaintiff showed payment of rent after the agreement made, as an act of part-performance. Lord Redesdale said, that if there had been acts of considerable expenditure, he could do no more than was done in the case before Lord Loughborough, just referred to. He then observed that as the payment of rent was an act which might be in part execution of a lease for one life, as well as of a lease for three, there was no ground for admitting parol evidence of the latter, the agreement charged in the bill; and he refused, in view of the course the plaintiff had taken in pleading, to allow him to amend so as to obtain a decreee for a lease for one life, but dismissed the bill without prejudice to his filing a new one for that purpose. Although Lord Loughborough's decision is not in terms questioned by Lord Redesdale, yet he seems to speak of it with some uncertainty as to its correctness; and it will be observed that the payment of rent was admitted here to be an act in part execution of some agreement, as in the case before Lord Loughborough.

1 Spurrier v. Fitzgerald, 6 Ves. 548.

2 Mortimer v. Orchard, 2 Ves. Jr. 243. 3 Lindsay v. Lynch, 2 Schoales & L. 1.