It has been already mentioned (I) that, besides mistake avoiding an apparent contract or conveyance on the ground of want of true consent, there may be mistake in the expression of a true consent; and that in this case the agreement may generally be rectified. We will now consider this subject.

Mistake in the expression of consent.

The rectification of a written instrument (in which form, as we have seen, a contract for the sale of land is required to be made (m), on the ground of its not expressing, by reason of fraud or mistake, the true intention of all parties thereto, is a matter depending entirely on the jurisdiction of Courts of Equity now vested in the Supreme Court of Judicature (n). And we will begin by reminding the reader that the exercise of this jurisdiction forms an exception to the general rule applied equally in Courts of Law and Equity (o), that extrinsic evidence of the intention of the parties to a written instrument is not admissible to explain or vary the terms of the writing (p). In other words, the general principle is that the parties are not at liberty to prove by evidence outside the instrument that the intention expressed therein was not their intention; or more briefly, that they are bound by the words which they have used in the writing, no matter what they (the parties) meant (q). The result of this general principle is that some matters, which are really errors in the expression of consent, are dealt with by the Courts in the course of their construction or interpretation of written instruments which they are prayed to enforce. Thus the Court will correct all errors which are apparent on the face of any written instrument as a matter of the construction or interpretation of its terms and without admitting extrinsic evidence to explain them (r). So also where the terms of some agreement embodied in a written instrument are upon the face of it ambiguously or inexactly expressed, the Court will not, as a rule, admit extrinsic evidence of what the parties' intention was, but will gather their intention from the written instrument alone, and decide, on consideration of the words used therein, what interpretation shall be given to them, or whether they bear any meaning at all (.9).

Rectification of written instruments a matter of the exclusive jurisdiction of Courts of Equity.

(i) See above, p. 680.

(k) Bingham v. Bingham, 1 Ves. sen. 126; Broughton v. Hutt, 3 De G. & J.501; Cooper v. Phibbs, L. E,. 2 H. L. 149; Jones v. Clifford, 3 Ch. D.779; Hudderfield Banking Co., Ld. v. Henry Lister & Son, Ld., 1895, 2 Ch. 273, 281; Allcard v. Walker, 1896, 2 Ch. 369.

{I) Above, p. 666.

(m) Above, p. 3.

An exception to the rule that extrinsic evidence is not admissible to explain or vary written instruments.

Correction of obvious errors.

(n) Ball v. Storie, 1 Sim. & Stu. 210, 219; see Wms. Real Prop. 164, 19th ed.

(o) Parteriche v. Powlet, 2 Atk. 383, 384; Rich v. Jackson, 4 Bro. C. C. 514, 6 Ves. 334, n; Ball v. Storie, 1 Sim. & Stu. 210, 218, 219; Bradford v. Romney, 30 Beav. 431.

(p) Rutland's case, 5 Rep. 26; Preston v. Merceau, 2 W. Bl. 1249 ; Goss v. Nugent, 5 B. & Ad. 58, 64, 65; Adams v. Wordley, 1 M. & W. 374; Doe A. Norton v. Webster, 12 A. & E. 442; Barton v. Dawes, 10 C. B. 261; Abrey v. Crux, L. R. 5 C. P. 37; Evans v. Roe, L. R. 7 C. P. 138; see above, pp. 564, 565, 588.

(q) Doe d. Templeman v. Martin, 4 B. & Ad. 771, 783, 786; Doe d. Gwillim v. Gwillim, 5 B. & Ad. 122, 129; Rickman v. Carstairs, ib. 651, 663; above, p. 668.

(r) Coles v. Hulme, 8 B. & C. 568; Wilson v. Wilson, 5 H. L. C. 40, 66, 67; Sug. V. & P. 171, note (1); Re Daniel's Settlement, 1 Ch. D. 375; Greenwood v. Greenwood, 5 Ch. D. 954; Mour-mand v. Le Clair, 1903, 2 K. B. 216; Elphinstone, Norton & Clark, Interpretation of Deeds, Rule 17, p. 78.

Having thus adverted to the rule, to which rectification forms an exception, let us pass on to rectification itself. Courts of Equity have jurisdiction to rectify a written instrument purporting either to contain or to carry out an agreement between the parties thereto, if it be proved by clear evidence that the instrument as drawn does not embody or give effect to their real agreement (t). In order to make out a case for rectification, it must be shown that the parties have actually concluded an antecedent contract at variance in some respect with that expressed to be contained in or carried out by the written instrument, and that they intended to embody or give effect to that antecedent contract in or by the writing. In the first place, there must be an antecedent contract; no inconclusive negotiation or honourable understanding void at law is sufficient (u). Secondly, there must be a common intention of embodying or giving effect to that contract in or by the writing (x). That this is an essential condition of obtaining rectification appears from the fact that, if the parties agree to omit some term of their real contract from the written instrument, no rectification thereof can be obtained (y). It is likewise shown in the case of contracts required by the Statute of Frauds (z) to be put into writing. If the antecedent contract were one of these and there were a common intention to embody or give effect to all the terms of that contract in or by the writing, the writing may be rectified (a); and it is no defence to an action for rectification to plead that the antecedent contract was one which the Statute of Frauds (b) requires to be in writing, and that it was made by word of mouth only (c). For if made by word of mouth, the contract was not void, but only not enforceable (d); and if the parties really assented to such a contract and had also a common intention of reducing or giving effect to all the terms of that contract to or by writing, and this intention were frustrated owing to the omission or mis-statement by mistake of some material term of the contract, it would be giving countenance to fraud to allow the defendant to repel proof of the mistake under cover of the statute (e). If, however, the writing purport to contain the contract, but omit some material part thereof, and there were no common intention to put the whole contract into writing, the document cannot be rectified. If this were not so, the Statute of Frauds could never be enforced. But, as we have seen (/), a person charged upon such a contract evidenced by a written memorandum is at liberty to plead in defence that the memorandum is insufficient to satisfy the statute by reason of its not containing the parties' whole agreement; and it does not appear that this defence can be met by a claim for rectification, unless it can be shown that there was a common intention of signing a perfect memorandum and that the omitted terms were left out by mutual mistake. Thirdly, the antecedent contract and the common intention of embodying it or carrying it out by the writing must be proved by very clear evidence; for, as we have seen (g), the rule is that, when several persons have joined in embodying some legal agreement or act in writing, they are bound by the intention expressed in the writing; and the whole burthen of proof lies on the person who asserts that the writing does not express the parties' real intention (h). For this reason the Court attaches great weight to the denial by the party, against whom rectification is claimed, of any intention at variance with that expressed in the writing: though it does not allow such denial to be a bar to the relief claimed, if overcome by clear evidence to the contrary (i). And for this reason also, where it is shown that the instrument sought to be rectified was executed in pursuance of and actually carries out at all points a prior agreement in writing, extremely strong evidence is required to induce the Court to believe that a mistake has occurred in drawing up the subsequent instrument. In such circumstances it is obvious that there could have been no mistake in the subsequent instrument unless the parties had come to a new agreement after they had made the agreement in writing, or had made a mistake in the prior agreement in writing as well as in the instrument purporting to give effect to it. In the former case the plaintiff, who would scarcely be claiming rectification except to obtain the inclusion of some term in his own favour, is in this difficulty, that if the new term were gratuitously agreed to by the other party, there is for want of a consideration no contract between them to execute the subsequent instrument as alleged (k): though if there were a consideration for the new term, it appears on principle that he ought to be admitted to prove the contract so constituted. In the case of an alleged mistake, both in the antecedent agreement in writing and in the instrument giving effect to it, the plaintiff is in truth claiming the specific performance with a parol variation of the antecedent contract in writing; and in this case the authorities regarding his right to obtain relief are conflicting. These authorities it is now proposed to examine.