1826. subject generally, of admitting parol evidence in a case of January, this kind, I refer to Ratcliffe v. Allison, 3 Rand. 537, not M'Mahon long since decided. The general rule is, that parol eviSpangler. dence cannot be admitted to contradict, explain, or alter, a

V.

written agreement; but, may be received to prove fraud, surprise or mistake in the execution of it. But the books all tell us, that in this latter case, the evidence must be strong and clear. The solemn acts of the parties, under their hands and seals, are not to be blown away by loose and vague conversations In the case before us, the bill asserts that the scrivener, having first written the heads of the agreement correctly, made the mistake complained of, in the copy; and that this was not perceived, until after the contract was executed. The answer is positive and direct, in contradicting this. The plaintiff, then, must make it out by satisfactory evidence, out weighing the answer. To increase the difficulty of the plaintiff's task, there are some circumstances strongly corroborating the answer. The first of these is, that the bill itself shews, that there was never any claim made by Spangler, to more than an undivided moiety of a tract supposed to contain 300 acres; and that he wished to sell only his part, never expressing any intention of selling any part of the portion which would fall to Key. Another, and a very important circumstance, as it seems to me, is, that the contract as stated by the bill, is so widely different from that expressed in the agreement executed, that it is difficult to conceive how the one could be mistaken for the other. Observe; the bill states, that Spangler sold the plaintiff 150 acres of land, with the improvements, at $17 1-3 per acre; the contract says, that he sold him his right, title, interest and claim, in and to the land, for $2600: The one a sale by the acre of a specified number of acres; the other, a sale in gross of his interest. M'Mahon does not say, that he did not read over the contract, that he was intoxicated, or in any other way deprived of the use of his reason, for the time. And can we easily imagine, how a man who had made an important

contract for 150 acres of land, at so much the acre, and 1826. had caused this contract to be reduced to writing, should January, read it over, or have it read to him, and not discover that M'Mahon it was set down as a purchase in gross of an indefinite quan- Spangler. tity of land?

Let us see now what is the evidence to convict the scrivener of mistake. George Clack says, Spangler offered to sell to him his land, which he afterwards sold to the plaintiff, stating that his undivided moiety would be 150 acres; cannot be certain, but his impression is, that he offered the part with the improvements; has heard him make the same offer to others. Thomas Clack heard a conversation after the contract, between M’Mahon and Spangler, his recollection of which (after 2 years,) is, that Spangler did not positively admit, that Bush had made a mistake in drawing the contract; but said that if he had, it should be corrected. W. E. Clark was the plaintiff's bar-keeper; heard many conversations, before the contract, between the parties; in one of which, Spangler said, there were 300 acres in the tract: that one half was his; and that he would warrant to the plaintiff 150 acres. After the survey, and the deficiency discovered, Spangler came to the plaintiff's house, and told the affiant, that he would make satisfaction to the plaintiff. Mr. Williams says, that after the contract, Spangler asked him, in presence of the plaintiff, if he had not surveyed the land, and if it would not hold out 300 acres. He answered, he thought it would be thereabouts. He understood the defendant to say, he had sold the plaintiff 150 acres. Peter Roller. Spangler offered to sell him the land; said there were 300 acres, and he owned half, 150: that he could get either part, with or without the improvements. John Roller. The land was offered to him; rather thinks at 150 acres. He said the whole tract was 300 acres, and offered his part.

This is

all the evidence upon the subject of the mistake. I mean all, but those affidavits taken after the appeal; which, though if earlier taken, they would not change my opinion, I can

V.

Spangler.

1826. not think ought to be used to impeach a decree made beJanuary. fore their existence. Now, I ask, does the evidence prove M'Mahon that the contract made, and the contract signed and sealed, were different? Not one of the witnesses pretends, that he heard the contract made. The conversations, at best, are loose and casual, related, after the lapse of two years, by persons not at all interested, in understanding or remembering them. Most of them may be explained, by adverting to the fact stated in the bill, that Key gave Spangler leave to sell either part; and if he sold the part unimproved, it would of course (on the supposition that the tract was 300 acres,) contain 150 at least. In all cases, he spoke of selling his part, his half, &c. In my opinion, if there were no other evidence in support of the contract but the answer and the circumstances, it would be unshaken by these affidavits.

But, there is other and important evidence; the affidavit of Bush the scrivener. It was objected by the counsel for the appellant, that this ought not to be read, because it was not taken by the plaintiff. How does this appear? The affidavit bears on its face, to be regularly taken by the plaintiff, and is qualified to before a magistrate. It is in the record with the other evidence. No exception is taken to it, and we see that the Chancellor acted upon it; for he notices it in his opinion. There is, to be sure, appended to it, a note signed by Bush; but whether this be taken as evidence or not, (for it is not on oath,) I do not think it affects the affidavit. Without it, the evidence stands, like every other, unobjected to. With it, we see, that the affidavit was written at the request of M' Mahon, and that after hearing it read, he refused to have it taken at that time. But I hold, that a party cannot suppress evidence which he has had taken, because he finds that it makes against him. After the witness is examined, his evidence is in the hands of the commissioner of justice; it belongs to the cause, and ought not to be withheld. But I take it, no party can object to the reading an affidavit, in the Appellate

Court, which was read in the Court below, without objec- 1826. January. tion. It was said, that there was no necessity for the plaintiff to except to this affidavit, because it was not taken M'Mahon by the defendant; but it was an affidavit filed in the cause, Spangler. and which would of course be read, if not excepted to. The plaintiff, therefore, if he did not wish it read, ought to have excepted. If he had done so, the other party might, at once, have had it taken over again, or he might have shewn by other evidence, that it was in fact correctly taken.

I think, upon these grounds, that the affidavit is good evidence; and it is most decisive to shew, that there was no mistake. He states, that he first made a rough draft of the contract, altering it to suit the views of the parties: that then he wrote it over fair, and read it to them distinctly more than once: that they seemed perfectly satisfied, and executed it. The point was against the plaintiff, without this evidence; but this puts it beyond all question. It is but justice to this witness to say, that the counsel, I think, mistook in saying that he was contradicted, both by plaintiff and defendant, with respect to the written memorandum, from which he drew the agreement. They do not state, that they lodged with him a written memorandum to draw the contract by, but that Bush first drew the rough notes, under their direction, and then drew the contract from these; and Bush states the same substantially, in his affidavit.

With respect to the last point, that the land turning out only 269, instead of 300 acres, there ought to be a deduction; even supposing there ought, it would not disturb this decree. The whole deficiency would be 31 acres; half of this, 15 acres. These, at $173 per acre, would amount to $268 61; and there will be, after these $400, now in contest, are paid, $1100 of the purchase money still due. But, nothing is clearer than that this contract, as it is written, presents a purchase, not by the acre, but in gross. is not now necessary to pronounce the law arising on this

It

1826. aspect of the contract.

January.

There is abundance, without touch

ing it, to say that the order dissolving the injunction is M'Mahon right.

ข.

Spangler.

The other Judges concurred, and the order of dissolution was affirmed.

No person has a right to divert a water-course on his own land, so as to turn it from the land of his neighbour lower down the stream; and if he claims that right from long enjoyment of it, he must prove that he has had adverse possession for upwards of twenty years.

If the party, who is injured by such an act, restores the stream to its original
channel, Equity has not jurisdiction to grant redress, as it is a proper case
for damages at common law. The only ground of equitable jurisdiction is,
to prevent a threatened injury.

The law does not give any power to condemn land for a tail-race.
What degree of certainty is necessary, in an order for establishing a mill.

The first of these cases was an appeal from the Staunton Chancery Court; and the second, an appeal from the Superior Court of Law for Rockingham county. The subjects of the two were so connected, that they were argued and decided at the same time.

In the case of Coalter v. Hunter, the bill was filed by Hunter, Crawford, Samuel Black and James Black, setting forth the following case: That about 26 or 30 years before the filing of the bill, Samuel and James Black having erected a saw-mill on their land, situate on the south fork of Shenandoah river; but finding that the stream which gave it motion was too small to make it useful, obtained leave of James Crawford, (who owned the land immedi