delivered the opinion of the Court.
William C. Whitney and Uriah Holt demur to the plaintiff’s bill, because .several independent causes are alleged therein, in which they aver they have no interest or concern. But Whitney is charged in the bill with being concerned in all the causes assigned; and Holt is charged with having combined and confederated with the others to defraud the plaintiff, in relation to the subject matter of the controversy. How far these allegations may be sustained, is not a question upon demurrer. But if sustained, they are sufficient to justify the insertion of these defendants as parties. Relief may be had distributively, as the equity of tlie case may require, according to the gravamen made out against the defendants.
Samuel Haven and John Foster demur, because Whitney and Holt were made parties, which we hold justified for the reasons before slated; and because Bolster was not made a party. As however he was but the servant of Brown, and not otherwise interested, we think his omission cannot prejudice the defendants. They further demur, because the bill is exhibited for distinct *178causes, which have no relation to, or dependance on each other, and which concern divers and distinct persons, who have no common interest' therein. But it appears to us, that the specifications in the bill have relation to one subject matter, in which matter all the defendants are alleged to have been combined and concerned, to the prejudice of the plaintiff. We adjudge the causes of demurrer to be insufficient; and the demurrers are accordingly overruled.
Proceeding to the consideration of the bill, answers and proof, we are of opinion that the plaintiff has failed to sustain his bill against Holt; who is discharged and allowed costs.
The testimony of Holt and Whitney is objected to as witnesses, at least without the previous order of a Judge; and upon this point several authorities have been cited. As, however, their testimony does not affect the case, in the view we have taken of it, we deem it of no importance to decide upon its admissibility.
From the bill, answers and evidence before us, it may be important to determine, if we may, what tract of land Haven fy ais. through their agent Whitney, intended to sell to the plaintiff, and what tract he intended or expected to purchase. And this does not appear to us to be a question of very great difficulty, notwithstanding the conflict in the testimony, and the discrepancy between the bill, and the answer of Whitney, as to some of the facts.
He insists, that he doubted whether the hemlock tree was the true corner of the lot, and that it was marked as such, and adopted in the bond, from the assurance of the plaintiff tha$ it was so. The course thence to Hogan pond has been in controversy — a question having been raised as to the true reading of the bond, in describing this line. But as to how far- the tract was to extend in other directions, the bond is express ; and there does not appear to have been any misunderstanding between the parties ; whether they can be reconciled or not, with another part of the description.
The land was to run to Hogan pond. It was to run thence, on Samuel Brown’s line, to Simon Staples’ land. It is not pretended, nor is there any evidence, that Whitney was led into any error by the plaintiff, in this part of the description. The lot *179agreed to be sold tliem, was to run from Hogan pond to Staples’ land. It is also described, as lot number five, in the second range, according to the new survey. Both parties supposed that this would coincide with the other boundaries given. Staples’ land was one of the pigeon hill lots. The parties then must have supposed, that the line of these lots was the head line of number five in the second range. There is reason to believe, however, from the survey made by Holt, and other evidence in the case, that the head line of lot number five, in the first range, bounds on the pigeon hill lots. And Samuel Brown’s land runs through the first and second ranges.
The cause of the error, into which both parties fell, undoubtedly was, that the line between the first and second ranges, in that neighborhood, not having been marked, number five, in the second range, was supposed to run to the pigeon hill lots. Hence the lot was to run to Staples’ land, which was one of those lots. With this impression, it is very clear, that there was a mistake in selecting the hemlock tree as the north-east corner; for a southwest course thence to the pond, would pass about through the centre of number five, in the second range. It was in the line of the pigeon hill lots; but was not so far north as the side line of five, in the first range, which was an extension of the side line of five, in the second range. Where that line, namely, the north line of number five in the second range, extended, would strike the line of the pigeon hill lots, was the true north-east corner of the tract, which the one party intended to sell, and the other to purchase. For there is no doubt as to the width of number five, at the pond, and the line thence was to be continuous, running a north-east course.
The foregoing deduction, as to the intention of the parties, is not opposed to the principle settled in Elder v. Elder, 1 Fairf. 80, that parol testimony is not admissible, to vary the terms of a written contract, in equity, any more than at law. Parol testimony is admissible, to prove and locate the boundaries and monuments given in a deed, and these being proved in this case, an ambiguity, latent in the deed, became apparent; the description given not being found consistent with itself; so that the mistake *180is satisfactorily proved, by an exception to tbe rule before cited, and which is as well settled as the rule itself.
The lot, as located by Holt, differs most essentially from the boundaries, given in the bond. The latter bounds upon Samuel Brown's lot, along his whole north line, to Staples' land. The former extends upon that line but about half the distance. The one runs to Staples' land, the other stops one hundred rods short of it. The one is bounded on Hogan pond, the other runs over and beyond it.
So strong was the impression that number five, in the second range, extended to Staples' land, that it was entertained, oven after Bradbury made his survey, by order of the Court; and it was not discovered that it did not, until Holt had extensively explored the lines and surveys in that part of the country. It is then very apparent to us, that when the plaintiff agreed by his counsel, that Holt should locate, mark, and establish lot number five, in the second range, according to the new survey, and that the lot so established, should be taken as the lot mentioned in the bond of Haven als. to him, he acted under a misapprehension, which has led to a result unexpected by both parties; and which does not accord with the justice of the case.
We are satisfied that the land agreed to be sold, as the parties intended, was to bound, the width of number five, in the second range, on Hogan pond, and to run thence, within the side lines of that lot extended, to the line of the pigeon hill lots, the whole being supposed to be five in the second range, the line between the first and second ranges not having been there marked, and neither party being aware that the new' survey would result in a different location of that lot. The plaintiff in equity insists in his bill, as he did before in the trial at law, and when he claimed a deed of the other contracting party, that by the condition of the bond, the line of his purchase ran from the hemlock tree, a north-west, instead of a south-west course to Hogan pond ; but we are of opinion, that south-west is the true reading of that course, in the condition of the bond ; and there is, in our judgment, no satisfactory proof, that north-west was the course intended.
*181Whitney, the agent of Haven Sf ah., states that he considered himself bound to resist this assumption, which we deem unwarrantable, but that he was always ready to correct any mistake, and to do what is equitable and proper; and he has in their behalf expressed a desire, that the Court would intimate what, in their opinion, the equity of the case requires them to do, and they would conform to it. To meet this liberal proposition, which is all the plaintiff in equity can expect, or is entitled to, we do not hesitate to give the intimation desired, not as an order or decree in the case, but by way of recommendation, with a view to an arrangement between the parties. We are of opinion then, that the plaintiff in equity ought to pay to Haven Sf ah. whatever remains unpaid of the sum of eight hundred dollars, which he agreed to pay, with interest, and that Haven Sf als. should thereupon convey to him, by a good and sufficient deed of warranty, all the land from Hogan pond to the line of the pigeon hill lots, which would be embraced by an extension of the side lines of number five, in the second range, eastward to the line of those lots. That it then be left to Mr. Holt, to determine, whether the plaintiff in equity, or any one under him, did before the action of trespass against him, cut any timber from the lands of Haven Sf ah. without the bounds of the land last described, and if he did, to ascertain its value. That, thereupon, Brown and Bolster become defaulted in that action ; and that judgment be rendered against them, for the amount thus ascertained, with costs. But if Holt find that no timber was thus cut, without the bounds described, that Haven Sf ah. the plaintiffs in that action, become nonsuit, and the defendants he allowed their costs. That Whitney, as the agent of Haven Sf ah. should have made himself better acquainted with the true description of the land he undertook to sell; and therefore, although not interested in the cause, is not entitled to receive costs.
The plaintiff in equity has made out a case calling for relief, yet having pertinaciously insisted upon more than he was entitled to, and having thus set up a claim, which the adverse party was constrained to resist, it does not present a case, in which costs upon this bill ought to be adjudged in his favor. If Haven Sf *182als. are ready to adjust the controversy upon these terms, it is all the relief the plaintiff in equity can justly claim.
If they decline it, the Court are of opinion, that the plaintiff in equity is entitled to relief, upon the foregoing facts, by way of defence to any action brought against him ; and will enjoin Haven Sf als. to consent to discharge the agreement, to refer to Holt; and if, at a further trial, of the action at law, it should be proved that their agent gave a license to Brown, the plaintiff in equity, to cut timber from the land they agreed to sell him, will enjoin them from prosecuting him, or Bolster, who acted under him, as trespassers, for cutting on the land, between the side lines of number five, in the second range, extended easterly, from Hogan pond to the line of the pigeon hill lots.