¶1delivered thp opinion of the court:
¶2The first ground of this motion is advocated on the broad and well established principle that parol evidence is inadmissible to add to, vary or contradict a.written instrument. But when associated with the reasons on which \t is founded, it is apparent that it -only applies to the essential and substantial parts of■ the writing, and not ta those that are merely formal. Thus, in Goddard’s case,' (2 Rep. 46. Phillips 428,) it was held that the delivery pf a deed may be shown by parol on a day different from that on which it bears date ; from which time alone, it can take effect. Qn this principle alone, in the case of Jackson, ex dem. vs. Schoomaker, (2 Johnson’s Rep. 230,) the court admitted. parol evidence to shew that a deed bearing datp in 1714, was not executed until 1717, Sind chief justice KenJ remarks that the date is no part of the substance of the deed, and not necessary to be inserted. The real date is the time of delivery.
¶3If this principle is to be regarded as operating on the date of the return, or the date of the deed, the same result will follow ; for the witness stated with certainty, that the deed was not executed until after the land was sold. If on the former, it is made to correspond with the date of the deed. But if the date of the return is incontrovertablo, it must control that of the deed which pan take effect *373only from that time, and in either case the plaintiff is entitled to recover.
¶4The same rule applies with regard to the signing of the judgment, and the lodgment of the execution. This was evidently a mere clerical mistake. The execution was not acted on for several days after, and there was no motive for lodging it before the judgment was signed.
¶5The rule of court is conclusive on the second ground. An objection to the regularity óf a resurvey must be made before the cause has gone to the jury.
¶6The motion is refused.