which the Plaintiffs would be bound, unless the Defendant should make out that, at the interview between him and Shedlock, any other terms were mentioned.

Then the question is whether the Defendant is entitled to resist performance of this agreement, on the ground of mistake in the first letter? It is there that it is alleged the mistake occurred. It is stated that, among the terms in that letter, the Defendant omitted to insert that a premium of £500 would be required, and that he was not conscious of having made such a mistake; that the letter was not shewn to him afterwards, and he had all along the impression that he had inserted among the terms in that letter the premium of £500.

The first question is, Has the Defendant produced sufficient evidence to prove that there was such a mistake; and, if so, has anything that has since happened deprived him of the right of resisting specific performance, on the ground of such mistake?

Looking at the letter itself, it not only specifies the terms on which the house is to be let, but the next part is very important: "Let me know if it suits you at your convenience, as I am giving all the brewers who left cards the offer in rotation."

I quite agree that it would be of the utmost danger to allow a person to escape from the consequences of his agree-[40]-ment, of which he repents, possibly thinking that he has not asked enough, upon slight parol evidence. With respect, therefore, to that part of the evidence which goes to shew that the Defendant's agent was instructed originally to ask a premium, supported as it is by the evidence of the agent, I at once say, looking to the consequences of admitting this kind of parol evidence to avoid a contract, that I could not allow the Defendant to escape merely because he himself swears that he had always intended to insert the term of the £500 premium in his letter, nor because of the oath of his agent, to the effect that the Defendant had given him accordingly instructions as to the terms of letting the house. But I find something written which, coupled with overt acts proved by the evidence of a disinterested witness, seems to bring the case up to the numerous authorities in which mistake has been permitted to be a defence to a suit for specific performance. The fact which the Defendant mentions in his first letter is that he is giving to all the brewers in rotation the offer. There is no ground for contending that the mode in which he would give them the offer in rotation would be by offering the premises to other persons than the Plaintiffs, upon different terms, for instance, excluding the £500 premium. That is a preposterous suggestion, and is not consistent with the ordinary dealings of mankind, nor with the language of the letter. The offer mentioned in the letter must be the identical offer which he thereby intended to make to the Plaintiffs. Then if I find that the Defendant had made to Elliot & Watney, who were first on the list of applicants, the offer of which he speaks in that letter, and that such offer included the term of the £500 premium, I must hold that the Defendant meant in this letter, but for the written language of it, to repeat the identical offer which he had made to Elliot & Watney, and that such offer was intended to include the term of the £500 premium as well as [41] the two sums for rent. It would scarcely make the case more certain if the Defendant had written a letter saying, "I have made an offer to Messrs. Elliot & Watney, and I now repeat the offer to you.' That would have placed the matter beyond argument; but it would have made scarcely any substantial difference in the facts. I read the letter as being in substance: "I am making to you the identical offer which I have made to those gentlemen." I think, therefore, that the Defendant's first letter was founded entirely upon mistake, and that it was the offer adverted to and accepted in the Plaintiff's subsequent letter. I believe that the Plaintiffs have acted with perfect good faith; but in accepting this they were accepting an offer which did not shew the real intention of the Defendant, not correctly representing the offer which was made to Elliot & Watney.

If so, the only question which remains is, has the Defendant prejudiced his right to resist specific performance on the ground of that mistake, because he has subsequently made an incorrect statement as to what took place at the interview between himself and Shedlock? I do not think that the case of The Duke of Beaufort v. Neeld (12 Cl. & F. 248) would be an authority for refusing him redress. That case was really not a case of specific performance, although something like it. The Commissioner was about to make an award, and the moment he had done so the rights of all parties would be fixed, and Neeld, in fact, came to the Court not merely, though he

asked that relief, for a decree that a conveyance should be made; but the principal relief he sought was an injunction to restrain making the award, because he was in possession, and the Commissioner had not then made his award. The Plaintiff there was driven into Court to get rid of what he had done, and in order that the legal consequences might not follow; and the Court said, [42] "You cannot avoid your own act in a case of negligence of this kind, many other persons being interested in the matter, solely on account of what you kept in your own breast."

That a person shall not be compelled by this Court specifically to perform an agreement which he never intended to enter into, if he has satisfied the Court that it was not his real agreement, is well established. Perhaps no case better illustrates the principle than The Marquis of Townshend v. Stangroom (6 Ves. 328), which shews both that an agreement will not be specifically performed by this Court with a parol variation; and, on the other hand, that this Court will not decree specific performance without such variation, if it be relied on as a defence.

Then what is the effect of this Defendant having said that he had made a mistake in his original proposal, and that subsequently he had an interview with the Plaintiff's agent and told him the real terms of the proposed lease, and that such agent perfectly understood and assented to those terms, including the £500 premium? Supposing him to fail wholly in establishing that proposition, I cannot see how that is to vary his rights. It would affect his credibility; but I need not give the least credit to his testimony on the subject. I mean that I do not find his evidence necessary. There is the written document, which he has signed, mentioning the course of rotation he he was about to pursue in making the offer of a lease; and the other evidence on which I rely is the testimony of Messrs. Elliot & Watney's agent-a disinterested person and not the evidence given by the Defendant in his own cause.

If, the Defendant's testimony being shaken upon one point, I should be inclined to doubt other evidence given [43] by him which was necessary in order to make out his case, I should have to put his evidence out of consideration altogether. But I have not regarded his evidence at all. The defence rests entirely, in my judgment, upon a written document, and the evidence of another witness in corroboration of it. I believe Shedlock's evidence entirely, and that the Defendant has fallen into a mistake of a kind which is not uncommon, when a witness, having a strong impression on his mind, is speaking from recollection of an occurrence which took place some time ago. I have recently had before me a similar instance of imperfect recollection. I believe that the Defendant has fallen into such an error in this case. He intended to stipulate for a premium of £500; and was under so strong an impression that he had mentioned the £500 in his letter that he never doubted it.

Then, at the interview, the Defendant says he mentioned the premium to Shedlock, but Shedlock, on the other hand, says that the only premium mentioned was for another public-house. I do not doubt that his version of what passed is correct. If it were a question of credibility between him and the Defendant the Defendant, having made this mistake as to his own letter, having omitted an important term in writing a letter of business, cannot complain if I give more weight to Shedlock's evidence than to his. I come to the conclusion that the Defendant has shewn considerable want of memory and inaccuracy; but to say that, because he has set up that case and failed, he is to suffer for his mistake in the original transaction, if such mistake be clearly proved to have been made, seems to me to be confusing two things which are distinct. The question is simply one of credibility.

On the other hand, I am bound to say on the Plaintiffs' part that I believe they were treating for a lease without [44] any premium, which was not unnatural, as the term was so short.

I dismiss the bill, without costs, and without prejudice to an action for damages, and to the costs of this suit being included in such action.

[44] BOND v. ENGLAND. June 28, July 24, 1855.

[24 L. J. Ch. 671; 1 Jur. (N. S.) 918; 3 W. R. 648.]

Mortgage. Exoneration. Heir. Next of Kin. Administration.

James E. mortgaged real estate, and died in 1850, intestate, leaving his father, Edward E., his heir at law and sole next of kin. Edward E. died intestate, and without having obtained letters of administration of the personal estate of James. Held, that the personal estate of James was liable, as between the heir and personal representative of Edward and James, to be applied in discharge of the mortgage debt in exoneration of the real estate.

Observations upon the conflict of authorities on the subject of exoneration.

James England died in May 1850, seised in fee-simple in possession of freehold lands, which he had acquired by purchase, and which were subject to mortgages created by him, and possessed of leasehold lands and other personal property. He died intestate, both as to his real and personal estate, leaving his father, Edward England, his heir at law and sole next of kin.

Edward England died in June 1850, also intestate both as to his real and personal estate, without having ever obtained letters of administration of James England's personal estate, and without having in any way dealt with his real estate or with the mortgages thereon.

The real estate of Edward England, including the mortgaged estates, descended upon his grandson and heir, William England, who was also heir to James England. In August 1850 letters of administration of the personal estate of Edward England were granted to his daughter, [45] Elizabeth Bond; and in September 1854 Elizabeth Bond procured a grant of letters of administration de bonis non of her brother, James England.

The mortgages not having been paid off, a special case, in which Elizabeth Bond was named as Plaintiff, and William England as Defendant, was stated for the opinion of the Court, whether the personal estate of James England was liable, as between the parties, to be applied in discharge of his mortgage debts, in exoneration of his real estate charged therewith.

Mr. Daniel, Q.C., and Mr. Hanson, for the Plaintiffs. Upon the death of James England the whole of both his real and personal estate became beneficially vested in his father, Edward England, and consequently the Defendant has no right to have the mortgage debts of James England satisfied out of his personal estate, but such personal estate ought to be considered as part of the personal estate of Edward England, and administered accordingly: Scott v. Beecher (5 Madd. 96), Lord Ilchester v. Lord Carnarvon (1 Beav. 209), Lord Clarendon v. Barham (1 Y. & C. C. C. 688), Tweddell v. Tweddell (2 Bro. 101, 152), Woods v. Huntingford (3 Ves. 128, 130), and Evans v. Smithson (not reported), cited in Lord Clarendon v. Barham.

The only authority in favour of the Defendants is that of Lord Belvedere v. Rochfort (5 Bro. P. C. 299, Toml. ed.), a case which had escaped attention, until it was brought to light in Lord Clarendon v. Barham, and which cannot stand consistently with the subsequent decisions, the ground of those decisions being [46] that the mere circumstance of the real and personal estate of the deceased mortgagor having become united in his heir or devisee is sufficient to discharge the personal estate from its primary liability. The contest is, in truth, between the real and personal representatives of Edward, not James; and though the Defendant, claiming as heir, must trace his descent back to James, who was the last purchaser, yet he must trace that descent through Edward, and take as standing in his place and representing him: Paterson v. Mills (15 Jur. 1).

Mr. Rolt, Q.C., and Mr. Peck, for the Defendant. After the death of James England, Edward England, as his sole next of kin, became entitled to the residue only of the personal estate of James, after payment of all his debts, including the mortgage debts; and Edward, never having taken out letters of administration of the personal estate of James, never took any further or other interest therein: conse

quently such personal estate never ceased to be, and still is, the fund primarily liable to the payment of the mortgage debts.

It is impossible to say that there was ever in this case the union of interests in Edward England, on which the Plaintiff relies. On the death of James his real estate vested in Edward, but his personal estate did not. A right to administration, and a right to a beneficial interest in the residue after payment of James's debts, vested in Edward on James's death. But in no other sense did the personalty ever vest in Edward; and the argument founded upon a union of interests fails.

THE VICE-CHANCELLOR. The only question for reply [47] will be whether the absence of administration made any difference as to the real and personal estate being at home in Edward.

Administration is the conse

Mr. Daniel, in reply. We submit that it did not. quence of a right to the beneficial interest in the personal estate, and not the converse. If a son dies intestate, or a wife, the husband of such wife and the father of such son are entitled to the whole of their personal estate, and to administration; and if such husband or father dies before administration granted to them, yet the personal estate of their intestate was an interest vested in them, and shall be part of their personal estate, and administration shall be granted to the representative of such husband or father; for the Spiritual Court regards the property in granting administration: Viner's Abridgment, tit. "Executors," and Bacon v. Bryant there cited; In the Goods of Gill (1 Hagg. 341), Fielder v. Hanger (3 Hagg. 769); and see Williams' Executors, 338, 339.

Judgment reserved.

July 24. THE VICE-CHANCELLOR Sir W. PAGE WOOD. The question I have to consider is whether, under the circumstances of this case, William England, the heir of James England, who originally created a mortgage of certain real estate, is entitled to have that mortgage paid off out of the personal estate of James England, not yet administered, but as to which he left his father, who was his heir, his sole next of kin, and therefore the person who had the right to take out administration.

[48] The difficulty is created by the doctrine of the Court on this subject having been completely reversed by the decisions of late years. According to the earlier authorities, beginning with Chief Baron Gilbert's treatise, if a fund was invested on mortgage of real estate, as between the heirs of the party making the mortgage and those who claimed his residuary personalty, subject to the payment of his debts and legacies, the real estate was considered to be merely a security, and the personalty was the fund primarily liable to pay the mortgage debt. That doctrine was followed to such an extent that, according to Chief Baron Gilbert, (1) if a deceased mortgagor had left his heir also his executor, and that executor had converted to his own use assets of his testator, equivalent to the mortgage debt, then, on his death, his heir would have been entitled to come upon his executors to exonerate the mortgage out of his personal estate. That is an extreme view, because it can hardly be supposed that the executor took that money with any other intent than that of appropriating it for his benefit out of the assets. This doctrine, however, seems to be supported by the decision in Lord Effingham v. Napier (5 Bro. P. C. 221), and by [49] what fell from the Court in Evelyn v. Evelyn (2 P. Wms. 664) with reference to that decision. In Lord Effingham v. Napier the facts were these:-Sir John Napier, the grandfather,

(1) "If the grandfather mortgages his lands, and covenants to pay the mortgage money, and the land descends to the father, and the father dies leaving a personal estate of his own, it shall not go in exoneration of the mortgage of those lands descended to the grandson, because the personal estate of the father was not liable to the grandfather's debt, and there is no equity that any part of the personal fortune of one should be applied in exoneration of such debt. Whence it seems that, if the father had been executor to the grandfather, and the grandfather had left assets to the value of the debt, and the father had converted them to his own use, then so much of the father's personal estate had been liable to the payment of the grandfather's debts; and the grandson could in such case have come upon the father's executors to exonerate the mortgage out of the father's personal estate:" Gilbert's Lex Præt. And see Treat. on Eq. vol. ii. p. 289.

left real estates subject to considerable mortgage debts. He left also other real estate and some leaseholds and other personal estate; and, by an Act of Parliament, the latter were vested in trustees, in trust to pay the debts of the grandfather, and, subject thereto, in trust for his son, Sir Theophilus, who became entitled to the mortgaged estates; so that he was the person entitled to the surplus of the fund set apart for payment of the debts, and also the person entitled to have those debts paid off. Sir Theophilus appropriated the fund; and his personal estate having been augmented by that fund, the House of Lords held that his nephew and heir had a right to have the mortgaged estate exonerated out of his assets. That is the ground on which the decision in Lord Effingham v. Napier was put in Evelyn v. Evelyn (2 P. Wms. 664), where the Lord Chancellor (who, with the concurrence of Lord Chief Justice Raymond and the Master of the Rolls, delivered the resolution of the Court) said that Evelyn v. Evelyn "was not like the case of Sir John Napier, where part of the estate of Sir John, the mortgagor, was after his death settled by a Private Act of Parliament in trustees, as a fund to pay all his debts; and Sir Theophilus, the son and heir of Sir John, disposing of that fund, was consequently answerable for the debts, having had the benefit of the fund set apart for them; for which reason it was but just that, upon his death, his personal estate should be answerable for the debts of his father." And yet he was the person who was entitled under the Act to the mortgaged estates, and also to the surplus of the fund appropriated for payment of the mortgage debts.

That, therefore, seems to have been the old doctrine: the [50] Court was to consider how far the personal estate had been increased by the circumstances of the debt having been allowed to remain a charge upon the real estate; and it is in accordance with Lord Belvedere v. Rochfort (5 Bro. P. C. 299 (Toml. ed.)) and the other cases referred to by Lord Justice Knight Bruce in Lord Clarendon v. Barham. In Lord Belvedere v. Rochfort, which was an extremely strong case, the devisee of the mortgaged estate was also executor and residuary legatee under his father's will, and had for years been in possession of the whole property, both real and personal; and his son, to whom he had devised the mortgaged estate, was held entitled to have the mortgage debt paid off, as being the grandfather's debt, out of personal estate of his grandfather in the Appellant's hands as executor of his father.

The case of Lord Belvedere v. Rochfort seems to have been overruled on both points. It was overruled on one point in Tweddell v. Tweddell (2 Bro. C. C. 101) by Lord Thurlow, who directed his attention to the question whether the debt was to be treated as the grandfather's debt at all. He had purchased the estate subject to a mortgage, and Lord Thurlow's objections were pointed to a formal error in the decree, in which the debt was treated as a charge created by the grandfather. Lord Justice Knight Bruce adverts to his judgment in Lord Clarendon v. Barham (1 Y. & C. 711). Lord Thurlow having, in Tweddell v. Tweddell (2 Bro. C. C. 101), overruled the first part of the decision in Lord Belvedere v. Rochfort, and Tweddell v. Tweddell having been since followed, the remarkable fate of Lord Belvedere v. Rochfort was that the other point which it decided was distinctly overruled by Sir J. Leach in Scott v. Beecher (5 Madd. 96), a case which was followed by Lord Langdale in Lord Ilchester v. Lord Carnarvon (1 Beav. 209), and again by Lord Lyndhurst in Evans [51] v. Smithson (cited 1 Y. & C. 701). Lord Justice Knight Bruce, in Lord Clarendon v. Barham (1 Y. & C. 688), came to the conclusion that it was so overruled, and very reluctantly decided that case against what would otherwise have been his own view.

Upon the whole, therefore, the result has been that where the same person has been executor and residuary legatee of a mortgagor, as well as heir or devisee of the mortgaged estate, upon the death of such person his personal estate has been held not liable to repay the mortgage debt; and it has been so held on the ground on which it is put by Sir John Leach in his judgment in Scott v. Beecher (5 Mad. 96), where, passing by the old question whether the personal estate had been benefited (in which case it ought, according to the earlier authorities, to have been applied in payment of the debt), he says the personal estate became the personal estate of the devisee of the mortgaged estate, but the mortgage debt was not the debt of the devisee, the devisee took the real estate with the equity to have the personalty applied in its exoneration, but she took it charged with the mortgage, and therefore the party claiming as her heir claimed the estate charged with a debt not created by his