granted. In what cases the assets having been originally sufficient, but the greatest part of them, which consisted of houses, having been consumed in the fire of London.(a) It has, however, been determined, in contradiction to the first decisions upon the point,(b) that there is no equity under this head of accident in favor of the lessee of a house, who is liable to repair, with an exception of damage by fire, for an injunction against an action under the contract for non-payment of *rent upon the destruction of the house by fire; (c) and upon the principle that a purchaser becomes in equity the owner of the premises from [*17] (a) Croft v. Lindsey, 2 Freem. 1. Brown v. Quilter, ib. S. C. Amb. 619. (c) Hare v. Groves, 3 Anst. 687. Holtzappfell v. Baker, 18 Ves. 118. This subject was first discussed by Mr. Fonblanque, in a very able note to the Treatise on Equity (5th edition, vol. 1, 374.) The arguments there adduced by him, led the court of exchequer to that sound conclusion by which the determinations of Lord Northington and Lord Bathurst were overruled. but if a surety bound at law cannot be charged there for want of the instrument, of which the creditor is deprived by accident or fraud, as by a loss of the instrument, or a withholding it by the surety, equity will give relief. Graves v. McCall, 1 Call, 414. If a party resorts to a court of equity on account of the loss of a paper, where the subject-matter is not cognizable in equity, he must annex an affidavit of the loss of his bill; but if the subject be within the jurisdiction of the court of chancery, such affidavit is not required. Peart v. Taylor, 2 Bibb, 556. Equity will sustain a bill on a note lost without fault of the complainant. Fisher v. Mershon, 3 Bibb, 527. In order to sustain a bill in equity for discovery and relief, where the loss of a deed is relied on as the sole ground of chancery jurisdiction, the plaintiff, according to the English chancery practice, must file an affidavit of the loss; but this rule cannot extend to a case where a fraud, trust, or other known ground of chancery jurisdiction is relied on, and a deed is sought to be disclosed, as any other material fact is sought to be disclosed, by the answer of the defendant; and as this court is not vested with equity jurisdiction in cases of lost deeds, independently of some other ground of equity jurisdiction, the rule requiring an affidavit is not applicable. Campbell v. Seldon, 13 Pickering, 8. A court of chancery will take jurisdiction of a case upon a lost writing, but very clear proof of its execution and contents is required. Jackson v. Jackson's Adm'r. 6 Dana, 258. The loser of notes at gaming, may file his bill in equity to restrain their transfer, and the prosecution of suits upon them; and this whether the loser indorsed them, or passed them by delivery merely, or whether they remain in the hands of the winner, or have been transferred to a third person, with notice of the circumstances under which the winner acquired them. Barker v. Callihan, 5 Ala. Rep. 708. the moment of the contract, if the premises are deteriorated In what cases by fire or other accident before the contract is completed, yet granted. the loss will fall upon the purchaser.(a) The death of an occupier is not that species of accident upon which a court of equity will sustain a bill for an account of mesne profits;(6) but numerous modern decisions have established, that where several persons are jointly bound, though at law the security of the creditor is wearing out as each of the debtors dies, yet that a court of equity will permit the creditor to resort to the assets of a deceased debtor.(c)[1] (a) Paine v. Mellor, 6 Ves. 349. Minor, 11 Ves. 559. son, 1 Swanst. 85. Coles v. Trecothick, 9 Ves. 346. Ex parte Harford v. Purrier, 1 Mad. Rep. 532. Akhurst v. JohnRevell v. Hussey, 2 Ba. & Be. 287; as a purchase before the master is not complete before confirmation of the report, a loss after the report, but before confirmation, falls upon the vendor. Ex parte Minor, sup. Twigg v. Fifield, 13 Ves. 517. (b) Pulteney v. Warren, 6 Ves. 88. Lord Kenyon, in Hale v. Webb, 2 Bro. C. C. 80, appears to have thought that a court of equity might look upon bankruptcy, under certain circumstances, as a case of accident. (c) Stevens v. Praed, 2 Ves. jun. 523. Daniel v. Cross, 3 Ves. 279. Slephenson v. Chiswell, ib. 596. Gray v. Chiswell, 9 Ves. 118. Ex parte Kendal, 17 Ves. 520. 1 Rose, 71. Devaynes v. Noble (Sleech's case,) 1 Meriv. 539, which have overruled Lord Thurlow's determination in Hoare v. Cotencin, 1 Bro. C. C. 27. [1] Where the remedy at law is gone, chancery will not revive it in the absence of fraud, accident or mistake. Walter's rep. v. Riley's adm'r. 2 Har. & Gill, 305. But bonds and covenants which have been fairly made and are founded upon sufficient consideration, but have become defective, or unavailable at law, will be sustained in equity. Noah v. Webb, 1 Edwards, 604. As where P. purchased property at the sale of an intestate's estate, for which he gave bond and surety, subsequently, the first administrator having died, P. administered de bonis non, and the bond came into his possession and was afterward lost. Held, that the next of kin might sue the administrator and his surety, and set up and recover the bond. Aikin v. Miller, Harp. Eq. 69. But a laches of many years, in pursuing any legal demand against an obligor, in a bond, will so far protect, that this court will not aid the creditor seeking relief against the representatives of the deceased obligor, nor aid one obligor seeking to compel another to contribute. Doughty v. Bacot, 2 Desau. 546. A partnership debt is not extinguished in equity by the bond of an individual partner. Weaver v. Tapscott, 9 Leigh, 424. Equity will set up a lost bond against a surety, and upon satisfactory proof that the lost bond bound the heirs, against the heirs of the principal obligor also. Kearney's adm'rs. v. Kearney's heirs, 6 Leigh, 478. S., by fraud and deception practised on G., procures him to execute a bond to H., upon which H. brings a suit against G., and recovers judgment against him by default. G. files a bill in equity to be relieved against the judgment on *Mistake is another common head of equitable interposition;[1] as where a mistake has been made in the draw the ground of the fraud practised upon him, without assigning any reason for not having defended himself at law. Held, by the court, that as he might have defended himself at law, on a plea of non est factum, he is not relievable in equity. Haden v. Garden, 7 Leigh, 157. And if the creditor wants relief touching the personal assets of his debtor, he must show that he has taken out execution at law, and pursued it to every available extent against the property before he can resort to equity. It is not enough that he has judgment and execution. He must show that his execution cannot be enforced without the aid of equity. Sanders v. Alexander, 2 J. J. Marsh. 301. A creditor who has obtained judgment, and sued out execution and levied it on property in which the debtor has the equitable but not the legal estate, is entitled to the aid of a court of equity to make the property available in payment of his demand. Perry v. Nixon, 1 Hill, 335. The general rule is, that a creditor must first obtain judgment at law, before he can ask relief in equity; but this rule applies only where the court is called on to aid a creditor in furtherance of his legal remedy. It has no application when the court is asked to give effect to its own judgment. And, therefore, where, on a bill by an administrator against creditors to marshal the assets, &c., an injunction was obtained restraining proceedings at law, and creditors came in and established their demands, this is a judgment of a court of equity. And if the creditors afterward file their bill to set aside certain conveyances by the intestate as fraudulent, and it appears by the bill that they have no remedy at law, they will be entitled to relief in equity. Brown v. McDonald, 1 Hill, 297, 301. Where a judgment debtor dies before the judgment creditor has obtained an equitable lien upon his personal property by the filing of a creditor's bill, it cannot be reached by filing a bill of that nature against the widow and heirs of the deceased debtor. Wilber v. Collier, 3 Barb. Ch. Rep. 427. An ordinary judgment creditor's bill is not the proper remedy to reach real estate of a deceased judgment debtor, or an equitable interest in real estate, which has descended to his heirs at law. Ib. If the decedent held the legal title, so that the judgment was a lien upon the land, the judgment creditor's proper course is to revive the judgment against the heirs or devisees of the decedent, and then to have the property sold upon execution. But if the decedent's interest in the real estate was a mere equitable interest, under a contract to purchase, or otherwise, which cannot be sold on execution, the judgment creditor, after exhausting his remedy against the personal representatives of the decedent, or, ascertaining that they have no assets to pay his debt, should apply to the surrogate, and compel them to sell the equitable interest of the testator or intestate for the payment of his debts; as authorized by the Revised Statutes. Ib. (See Waterman's Am. Ch. Dig., title DEBTOR AND CREDITOR.) [1] Mr. Jeremy (Eq. Juris. p. 385,) defines mistake to be "that result of ignorance of law, or of fact, which has led a person to commit that which, if he had not been in error, he would not have done." This definition is very well, as far as it goes; but it does not comprehend cases of omission or neglect. There is a marked distinction between ignorance of law and ignorance of fact. It is a settled maxim that the former does not excuse; the law only aiding those who are negligent, and not those who slumber over their rights. ing, engrossing, or cancellation of an instrument(a)[2] in an In what cases Sims v. Barry, (a) Crosby v. Middleton, 3 Ch. Rep. 55. Pr. Can, 309. Finch, 413. 2 Freem. 16. Hunburn v. Curtis, Fitzg. 118. Onions v. Tyrer, 1 P. W. 345. Henkle v. Royal Exchange Company, 1 Ves. 118. Jalabert v. Duke of Chandos, 1 Eden, 372. East India Company v. Neave, 5 Ves. 173. But no person can be supposed acquainted with all matters of fact; neither is it possible by any degree of diligence, in all cases to obtain that knowledge. Consequently ignorance of a fact does not imply culpable negligence. And it seems, if a party has forgotten facts, he will be held excusable, because, under such circumstances, he acts under the like mistake, as if he had never known the facts. 1 Story's Eq. Juris. 140; 9 Mees. & Wels. 54, 58, cited. To entitle the party to relief on the ground of ignorance or mistake of facts, the facts must be material to the act or contract. For though there may be an accidental ignorance or mistake of a fact, yet if the act or contract is not materially affected by it, the party claiming relief will be denied it. Hence, if A. were to sell an estate to B., whose location was well known to each, and they mutually believed it to contain twenty acres, and in point of fact, it only contained nineteen acres and three-fourths of an acre, and the difference would not have varied the purchase in the view of either party; and in such a case the mistake would not be a ground to rescind the contract. Ib. sec. 141; Smith v. Evans, 1 Binn. Rep. 102; Mason v. Pearson, 2 John. Rep. 37. Nor is the ground of relief, in such cases, the mistake, or ignorance of material facts alone; but the unconscientious advantage taken of the party by the concealment of them. If, therefore, A., knowing that there is a mine in the land of B., of which he knows that B. is ignorant, should buy the land without disclosing the fact to B. for a price, in which the mine is not taken into consideration, B. would not be entitled to relief from the contract, because A., as the purchaser, is not bound, from the nature of the contract, to make the discovery. To set aside such a transaction, there must be some legal obligation in the party to make the discovery. The contract will not be corrected merely because a man of nice morals and honor would not have entered into it. It must fall within some definition of fraud or surprise. "It would appear," says Kent, (2 Kent's Com. p. 490, 491,) "that human laws are not so perfect as the dictates of conscience; and that the sphere of morality is more enlarged than the limits of civil jurisdiction. There are many duties that belong to the class of imperfect obligations which are binding on conscience, but which human laws do not and cannot undertake, directly to enforce. But when the aid of a court of equity is sought to carry into execution such a contract, then the principles of ethics have a more extensive sway. It is a rule in equity, that all the material facts must be known to both parties, to render the agreement fair and just in all its parts; and it is against all the principles of equity, that one party knowing a material ingredient, in an agreement should be permitted to suppress it, and still call for a specific performance." "The general grounds," says Story, (1 Story's Eq. Juris. sec. 151,) “upon which all these distinctions proceed, is that mistake or ignorance of facts in parties, is a proper subject of relief only when it constitutes a material ingre [2] At law an agreement must be strictly and literally performed. But courts of equity will, in cases of accident, surprise, fraud, or ignorance, under certain granted. In what cases account, (a) by a testator in *the calculation of a legacy,(b) or granted. (a) Rodney v. Hare, Mose, 296. Roberts v. Kuffin, 2 Atk. 113. Earl Pomfret v. Lord Windsor, 2 Ves. 482. Brownwell v. Brownwell, 2 Bro. C. C. 82. Taylor v. Haylin, ib. 210. 1 Cox, 435. Johnson v. Curtis, 3 Bro. C. C. 266. Lewis v. Morgan, 3 Anst, 769. Walker v. Consett, For. Ex. Rep. 157. Grey v. Minnithorpe, 3 Ves. 103. Chambers v. Goldwin, 5 Ves. 834, on Appeal, 9 Ves. 254. Twogood v. Swanston, 6 Ves. 485. Kinsman v. Barker, 14 Ves. 579. Power, 1 Sch. and Lef. 192. Drew v. (b) Milner v. Milner, 1 Ves. 106. Brackenbury v. Brackenbury, 2 Eden, 275, Amb. 474. Danvers v. Manning, 2 Bro. C. C. 18. 1 Cox, 203. Williams v. Williams, 2 Bro. C. C. 87. Phipps v. Lord Mulgrave, 2 Ves. 613. dient in the contract of the parties, and disappoints their intention by a natural error; or where it is inconsistent with good faith, and proceeds from a violation of the obligations which are imposed by law upon the conscience of either party. But where each party is equally innocent, and there is no concealment of facts, which the other party has a right to know, and no surprise or imposition exists, the mistake or ignorance, whether mutual or unilateral, is treated as laying no foundation for equitable interference. It is strictly damnum absque injuria." circumstances, give relief. Very often by dispensing with formalities, or presuming that they have been complied with, chancery will relieve a party from responsibility, where accident would render the application of rules of law injurious or oppressive. So, if a writing has been executed with a view of obtaining a particular object, and by mistake it has been so drawn as not to have the contemplated operation at law, chancery will, in many cases, put such a construction upon it as will fulfil the intention of the parties. Where a party in executing an instrument, omits certain formalities required at law, chancery will sometimes supply the defect, or give such relief as appears consistent with the intention of the party, and the justice of the case. Agreements actually executed, although not founded on prior written agreements, will sometimes be reformed by courts of equity, on the ground of mistake. Where there is a written agreement, it is presumed to embrace the whole sense of the parties; and it is against the policy of the common law, to add to or vary the terms of such an agreement. Courts of equity, however, will grant relief, upon clear proof of a mistake, notwithstanding the mistake is to be made out by parol evidence. There is certainly great danger in setting aside the solemn engagements of parties, when reduced to writing by the introduction of parol evidence, substituting other material terms and stipulations. But courts of equity have not hesitated to entertain jurisdiction to reform all contracts where a fraudulent suppression, omission, or insertion of a material stipulation exists, notwithstanding it, to some extent, breaks in upon the uniformity of the rule as to the exclusion of parol evidence, to vary or control writ. ten contracts, deeming such cases to be proper exceptions to the general rule. The following are the principal American decisions on this subject: Chancery will relieve against mistakes in drawing deeds or other writings. Cook v. Preston, 2 Root, 78. Elmore v. Austin, 2 Root, 415. Parsons v. Hosmer, 2 Root, 1. Sanford v. Washburn, 2 Root, 499, Chapmen v. Allen, Kirby, 399 Lemaster v. Burckhart, 2 Bibb, 29. Coyers' ex'rs. v. M' Gee, 2 Bibb, 321 M'Curdy v. Brerthitt, 5 Monroe. Inskoe v. Proctor, 6 Monroe, 316. Parcels v. |