The opinion
Reads, J.
Before C. C. P., if parties accounted with each other, and the debtor gave the creditor his bond for the balance due, every thing was merged in the bond; and,
at lowy
the debtor was not allowed to set up any defence of mistake or fraud in the
settlement
or in the
consideration
of the bond:, but if such mistake or fraud were alleged and proved,, he could have relief
in equitij.
Now, we administer both law and equity in the same civil action. If, therefore, there was mistake or fraud in the consideration of the bonds sued on, the defendants may show it in this action, and have the benefit of it as a consideration, or by way of having the bonds reformed so as to show the amount justly due.
His Honor seems to have recognized this principle; and
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jet lie refused to allow tlie defendants to prove the alleged5 mistake.
Eor the balance found to be due the plaintiff on the settlement, the defendants gave him, not
one bond/
for the whole amount, but
several bonds
making up the whole amount; and his Honor held, that unless the defendants could show, not only the mistake, but in which particular bond the mistake was embraced, it could not be allowed. In this wre think there was error. The amount of the1 mistake having been divided up and embraced in several bonds, may involve some calculations to see how much is to be deducted from each-That would seem to be the only difficulty. And probably there need not be that difficulty; as, if the principal and interest now due and claimed by the plaintiff are equal- in amount to the alleged mistake and interest thereon, the one may be deducted from the other. And this would approximate if it would not be exact justice between the parties. The interests-of the parties to end litigation, may induce the liberality which will secure the result.
This is said upon the supposition that there was- a mistake,, and not as intimating any opinion that there -was. That is a question of fact for the jury.
The defendant also made the point, that if there was mistake or fraud, it would avoid the bonds altogether. That is. not so. Fraud in
tlie factum,
which is not here alleged, might ■have that effect; but not fraud in the
consideration.
There is error.
Pee Cueiam.
Yenire de nov&t.