#### Ralph Howell, *Executor of*Robert Crawford, *v.*Philip Hooks *Adm’r. of*Arthur Crawford.

The terms of a written agreement, cannot be varied by parol proof in equity more than at law, unless upon an admission by the defendant; or unless the provision sought to be established, was a substantive part of the agreement, and omitted through fraud or mistake: as where an absolute bond was given to indemnify bail, and the proof was of admissions by the obli-gee of the intent, but nothing to show fraud or mistake, or that a condition was omitted: It was held to be single.

The bill charged, that *Arthur Crawford,*the intestate of the defendant, at the request of his father *Robert,*the *259testator of the plaintiff, became the bail of one of his brothers in a criminal prosecution, and that the father agreed to indemnify him, and to give him a bond to that effect; that the defendant’s intestate drew the bond, and taking advantage of the age, infirmities and confidence of his father, wrote a bond for g 500, payable absolutely to himself, at the death of the father, which was executed by the latter, and delivered to the obligee. It was expressly charged, that the omission of the condition of indemnity, was by the fraudulent design of the obligee *;*or if not, that it was the condition and sole purpose of the delivery. *Arthur*never suffered by his engagement for his brother. The bond, upon the death of both parties, which happened soon after the transaction, was put in suit by the defendant. The prayer was for a discovery, and a perpetual injunction.

The defendant in his answer stated, that he found the bond among the valuable papers of his intestate, arid being absolute on its face, he considered it his duty to collect it; that he knew nothing of the execution, nor the consideration of tiie bond, nor of any condition on which it was delivered.

A replication was filed and proofs taken, which are stated in the opinion of Judge Rueein.

*W. C. Stanly,*for the plaintiff.

*J. H. Bryan*and *Mordecai,*for the defendant.

Rueein Judge.'

There is no proof of the age, infirmities or mental capacity of the father, nor of an undue influence of *Arthur*over *him;*nor any evidence as to the terms in which the instrument w-as directed to be drawn, nor of those in which it was represented to the father to bo drawn ; nothing to show, that in its structure it was different from what it was then thought and intended by both parties to be. But scveral dcpositions, which were read *de bene esse,*contain full proof of declarations by *Arthur*shortly after the date of the bond, and subsequently, that his father gave him the bond as an indemnity ; and that it was to be paid, if he suffered, otherwise destroyed.

*260The question is upon the admissibility of the evidence to establish the alleged condition. The case of *Mease*v. *Mease*(Cowp. 47.) is an authority at law upon the very point, that such evidence cannot he heard. The rule of evidence is generally the same in both courts, In equity, there is the advantage of the defendant’s answer ; but if that .fails to confess or to open the case, and it is to be made out entirely by proof, the terms of an agreement in writing can be no more varied here than at law j unless it appear by clear proof that the provision sought to be established, was a substantive part of the contract, and intended to be inserted in the instrument itself, but was not through fraud or mistake. To these points there is no proof here; nothing as to what passed in coming to an agreement, or as to drawing it up, or to show that the father did not know it was absolute in its terms, or did not intend it to be. The evidence is, as to tiie manner in which the son should use the bond upon certain Contingencies, and that drawn from his verbal declarations. To act upon it would be to insert a condition inconsistent with the legal operation, and contradicting the express terms of the instrument *;*which would break down all distinctions as to degrees of evidence, and destroy the confidence that ought justly to be reposed in solemn contracts. *(Fordyce*v. *Willis,*3 *Bro, C. C.*577.) This is altogether distinguishable from evidence impeaching a contract upon a consideration which renders it void by the words of a statute, or a rule of the common law, or a principle of equity. There the terms are not varied ; and I believe no case can be found in which a court of equity, more than a court of law, has received parol evidence of the agreement directly in the teeth of the contract as reduced to writing. This is as strong a case as could he, for the moral honesty is doubtless, if there be reliance in-the party’s words, and the witnesses’ oaths, on the side of the plaintiff; and there might be very probably such a confidence between father and son. But the relation cannot be allowed to set aside the rule of *law;*for there is no point at which we could say the relation of the par*261ties should operate, and beyond which .it should not; whether it should take in or exclude brothers, very intimate friends, and the like. •*

It scorns, that an executor who has been charged with assets in respect to a judgment which is enjoined, is entitled to relief; but whether at law o>' inequity. *Qu?*

A defendant whose judgment has, pending a suit in equity, became dormant, is not, upon a dis mission of the bill *262Se<f for Ms debt unless an injunction has issued,

*261The court cannot therefore take notice oí...the evidence, and the bill must be dismissed with costs.

Per Curiam. — Birr dismissed.

While the case above stated, pended in the court below, and after the proofs were taken, the defendant, fearing that the plaintiff would obtain a perpetual injunction, filed a bill against the plaintiff and one *Edwards,*in which he charged, that upon the faith of the, judgment he had obtained at law, ho had been fixed by the defendant *Edwards*with its amount as assets, and praying that the defendants might interplead, and that he might be protected in the final disposition that might be made of the cause.

*W. C. Stanly,*for *Edwards.*

Ruffin, Judge.

It is not now necessary to decide the questions made for live defendant *Edwards,*against the equity claimed by the plaintiff, upon the score of the pendency of the original suit against him, upon the bill of the, other defendant. That suit is now decided in favor of the defendant therein; so that the sum recovered by him, upon the bond of *Robert Crawford,*is now found to be properly applicable to the debt to *Edwards,*as lias already been decided at law. Whether *Hooks*could have any remedy against *Edwards,*after the judgment at law, or whether the present be the proper remedy, especially at the period it was resorted to, cannot now be material, and are therefore not decided ; though upon the former point, there seems at least strong justice on the side of an administrator for relief in some way, had the suit of *Howell*against him, resulted differently. I11 the event which has happened, this bill must bo dismissed with costs to *Edwards,*

A motion was made on behalf of *Edwants,*for a decree .here for the sum due him, upon the ground that hisjudg-*262mcnt was dormant. This might he under the statute, if an injunction had been granted and a bond taken ; but ..... . . . i no injunction has ever been awarded, nor does it appear that the judgment at law is dormant, or even not satis-fieil !)J a Je'T of tl)0 Ba,oneJ' — consequently, the motion must be refused, and *Edwards*left to proceed on his j(idgmeirt at law, if it be yet unpaid.

Pee Curiam. — De ciare accordingey.