of his declining to engage in an enterprise in one of the vessels of Rousmaniere, to which he had at one time consented, and of the com plaints of Rousmaniere, on that account, he was induced to offer to Rousmaniere a loan of money. That an agreement was accordingly made, by which he, Hunt, was to let Rousmaniere have a certain sum on loan, and Rousmaniere was to give him a bill of sale of a certain vessel; but that afterwards, Hunt, reflecting, that if he took that security, he would have to take out papers at the custom-house, in his own name, be subject to give bonds for the vessel, and perhaps be made liable for breaches of law committed by others, he consulted with Mr. Hazard upon the subject; who told him that he could, or would, draw an irrevocable power of attorney, to sell which, would do as well, and which was accordingly done.

The cause coming on to be heard, in the court below, and that court being of opinion that the plaintiff had then no lien, or specific security upon these vessels, and no equity to 12*] have such lien or security created against the general creditors of Rousmaniere, dismissed the bill; from which decree, the cause has been brought, by appeal, to this

court.

It must be admitted that the case, as it is now presented to the court, is not materially variant from that which we formerly had to consider; except in relation to the rights of the general creditors, against the insolvent estate of a deceased debtor, in opposition to the equity which a particular creditor seeks, by this bill, to set up. The allegations of the bills, filed in this cause, which were, on the former occasion, admitted by the demurrer to be true, are now fully proved by the testimony taken

in the cause.

ނ

a substitute for the other forms of security which had been offered by Rousmaniere. The difference between these statements is not very material, since it is apparent from both of them that the proposed security, by irrevocable powers of attorney, was selected by the plaintiff, and incorporated into the agreement, by the assent of both parties. The powers of attorney do not contain, nor do they profess to contain, the agreement of the parties; but was a mere execution of that agreement, so far as it stipulated to give to the plaintiff a specific security on the two vessels, in the mode selected and approved of by the parties; to *which [*13 extent, it was a complete consummation of the agreement. Such was the opinion of this court upon the former discussion of this cause in the year 1823, and such is its present opinion. Upon this state of the case, the general question to be decided, is the same now that it formerly was, and is that which has already been stated.

There are certain principles of equity applicable to this question, which, as general principles, we hold it to be incontrovertible. The first is, that where an instrument is drawn and executed, which professes, or is intended, to carry into execution an agreement, whether in writing or by parol, previously entered into, but which, by mistake of the draftsman, either as to fact or law, does not fulfill, or which violates the manifest intention of the parties to the agreement, equity will correct the mistake, so as to produce a conformity of the instrument to the agreement. The reason is obvious: The execution of agreements, fairly and legally entered into, is one of the peculiar branches of equity jurisdiction; and if the instrument which is intended to execute the agreement, be, from any cause, insufficient for that purpose, Before proceeding to state the general ques- the agreement remains as much unexecuted as tion, to which the facts in this case give rise, if one of the parties had refused, altogether, to or the principles of equity, which apply to it, comply with his engagement; and a Court of it will be necessary, distinctly, to ascertain Equity will, in the exercise of its acknowledged what was the real agreement concluded upon jurisdiction, afford relief in the one case, as between the plaintiff and the intestate, the per- well as in the other, by compelling the delinformance of which, on the part of the latter, quent party fully to perform his agreement, was intended to be secured by the powers of at- according to the terms of it, and to the manitorney. Was it that Rousmaniere should, in fest intention of the parties. So, if the misaddition to his notes for the money agreed to take exist, not in the instrument, which is inbe loaned to him by the plaintiff, give a specific tended to give effect to the agreement, but in and available security on the Nereus and the the agreement itself, and is clearly proved to Industry, or, was the particular kind of security have been the result of ignorance of some maselected by the parties, and did it constitute a terial fact, a Court of Equity will, in general, part of the agreement? It is most obvious, grant relief, according to the nature of the from the plaintiff's own statement, in his particular case in which it is sought. Whether amended bill, as well as from the depositions these principles, or either of them, apply to the appearing in the record, that the agreement present case, must, of course, depend upon the was not closed until the interview between the real character of the agreement under consideraparties to it, with Mr. Hazard, had taken place. tion. If it has been correctly stated, it follows, The amended bill states that the specific se- that the instrument, by means of which the curity which Rousmaniere offered to give, was specific security was to be given, was selected a mortgage of the two vessels, for which ir by the parties to the agreement, or rather by revocable powers of attorney were substituted, the plaintiff; Rousmaniere having proposed to by the advice of Mr. Hazard, and for reasons give a mortgage, or bill of sale, of the vessels, which, it would seem, were approved of and which the plaintiff, after consideration and acted upon by the plaintiff. From the tes- advice of counsel, thought proper to reject, for timony of Mr. Merchant, it would appear that reasons which were entirely satisfactory to the security proposed by Rousmaniere was a himself. That the form of the instrument, so bill of sale of the vessels, which the plaintiff chosen by the plaintiff, and prepared by the declined accepting, for reasons of his own, un-person who drew it, conforms, in every respect, influenced by any suggestions of Mr. Hazard. to the one agreed upon, is not even asserted in who merely proposed the powers of attorney as the bill, or in the argument of counsel. The

ed; the objection to the relief asked for, being in both cases the same, namely, that the court can only enforce the performance of an agree ment according to its terms, and to the intention of the parties; and cannot force upon them a different agreement. That the intention of the parties, to this agreement, was frustrated, by the happening of an event, not thought of, probably, by them, or by the counsel who was consulted upon the occasion, is manifest. The kind of security which was chosen would have

ed, with a mortgage, had Rousmaniere lived until the power had been executed; and it may therefore admit of some doubt, at least, whether the loss of the intended security is to be attributed to a want of foresight, in the parties, or to a mistake of the counsel, in respect to a matter of law. The case will, however, be considered in the latter point of view.

The question, then, is, ought the court to grant the relief which is asked for, upon the ground of mistake arising from any ignorance of law? We hold the general rule to be, that a mistake of this character is not a ground for reforming a deed founded on such mistake; and whatever exceptions there may be to this rule, they are not only few in number, but they will be found to have something peculiar in their characters.

avowed object of the plaintiff was, to obtain a valid security, but in such a manner as that the legal interest in the property should re14*] main with Rousmaniere, so that the plaintiff might be under no necessity to take out papers at the custom-house, in his own name, and might not be subject to give bonds for the vessels, or to liabilities for breaches of law, committed by those who were intrusted with the management of them. That the general intention of the parties was, to provide a security, as effectual as a mortgage of the ves-been equally effectual, for the purpose intendsels would be, can admit of no doubt; and if such had been their agreement, the insufficiency of the instruments, to effect that object, which were afterwards prepared, would have furnished a ground for the interposition of a Court of Equity, which the representatives of Rousmaniere could not easily have resisted. But the plaintiff was not satisfied to leave the kind of security which he was willing to receive, undetermined; having finally made up his mind, by the advice of his counsel, not to accept of a mortgage, or bill of sale, in nature of a mortgage. He thought it safest, therefore, to designate the instrument; and, having deliberately done so, it met the view of both parties, and was as completely incorporated into their agreement, as were the notes of hand for the sum intended to be secured. In coming to this determination, it is not pretended that the plaintiff was misled by ignorance of any fact connected with the agreement which he was about to conclude. If, then, the agreement was not founded in a mistake of any material fact, and if it was executed in strict conformity with itself, we think it would be unprecedented for a Court of Equity to decree another security to be given, not only different from that which had been agreed upon, but one which had been deliberately considered and rejected by the party now asking for relief; or to treat the case as if such other security had in fact been agreed upon and executed. Had Rousmaniere, after receiving the money agreed to be loaned to him, refused to give an irrevocable power of attorney, but offered to execute a mortgage of the vessels, no Court of Equity If the decision of the court proceeded upon could have compelled the plaintiff to accept the ground that the plaintiff was ignorant of the security so offered. Or, if he had totally the fact that he was the eldest son, it was refused to execute the agreement, and the clearly a case proper for relief, upon a principlaintiff had filed his bill, praying that the de-ple which has already been considered. fendant might be compelled to execute a mort- If the mistake was of his legal rights, as heirgage instead of an irrevocable power of attor-at-law, it is not going too far to presume that ney, could that court have granted the relief specifically asked for? We think not. Equity may compel parties to perform their agreements, when fairly entered into, according to their terms; but it has no power to make agreements for parties, and then compel them to execute, the same. The former is a legitimate brauch of its jurisdiction, and in its exercise, is highly beneficial to society. The latter is without its authority, and the exercise of it would be not only an usurpation of power, but would be highly mischievous in its consequences. 15* *If the court could not have compel led the plaintiff to accept, or Rousmaniere to But if this case must be considered as an exexecute, any other instrument than the one ception from the general rule which has been which had been agreed upon between them, mentioned, the circumstances attending it do the case is in no respect altered by the death of not entitle it, were it otherwise unobjectionthe latter, and the consequent inefficiency of able, to be respected as an authority, but in the particular security which had been select-cases which it closely resembles. There is a

The strongest case which was cited and relied upon by the appellant's counsel, was that of Landsdown v. Landsdown, reported in Moseley. Admitting, for the present, the authority of this case, it is most apparent, from the face of it, that the decision of the court might well be supported upon a principle not involved in the question we are examining. The subject which the court had to decide, arose out of a dispute between an heir-at-law and a younger member of the family, who was entitled to an estate descended; and this question, the parties agreed to submit to arbitration. The award being against the heir-at-law, he executed a deed in compliance with it, but was relieved against it on the principle that he was ignorant of his title.

the opinion of the court *may have been [*16 founded upon the belief that the heir-at-law was imposed upon by some unfair representations of his better informed opponent; or that his ignorance of a legal principle, so universally understood by all, where the right of primogeniture forms a part of the law of descents, demonstrated a degree of mental imbecility, which might well entitle him to relief. He acted, besides, under the pressure of an award, which was manifestly repugnant to law, and for aught that is stated in this case, this may have appeared upon the face of it.

If the court would not interfere in such a case, generally, much less would it do so in favor of one creditor, against the general creditors of an insolvent estate, whose equity is, at least, equal to that of the party seeking to obtain a preference, and who, in point of law. stand upon the same ground with himself. This is not a bill asking for a specific performance of an agreement to execute a valid deed for securing a debt; in which case, the party asking relief would be entitled to a specific lien; and the court would consider the debtor as a trustee, for the creditor, of the property on which the security was agreed to be given. The agreement has been fully executed, and the only complaint is, that the agreement itself was founded upon a misapprehension of the law, and the prayer is to be relieved against the consequences of such mistake. If all other difficulties were out of the way, the equity of the general creditors to be paid their debts equally with the plaintiff, would, we think, be sufficient to induce the court to leave the parties where the law has placed them. The decree is to be affirmed, with costs.

class of cases which it has been supposed forms | have been effected, by the instrument which an exception from this general rule, but which was finally agreed upon. will be found, upon examination, to come within the one which was first stated. The cases alluded to, are those in which equity has afforded relief against the representatives of a deceased obligor, in a joint bond, given for money, lent to both the obligors, although such representatives were discharged at law. The principle upon which these cases manifestly proceed, is, that the money being lent to both, the law raises a promise in both to pay, and equity considers the security of the bond as being intended, by the parties, to be co-extensive with this implied contract by both to pay the debt. To effect this intention, the bond should have been made joint and several; and the mistake in the form, by which it is made joint, is not in the agreement of the parties, but in the execution of it by the draftsman. The cases in which the general rule has been adhered to, are, many of them, of a character which strongly test the principle upon which the rule itself is founded. Two or three only need be referred to. If the obligee, in a joint bond, by two or more, agree with one of the obligors, to relieve him from his obligation, and does accordingly execute a release, by which all the obligors are discharged at law, equity will not afford relief against this legal consequence, although the release was given under a manifest misapprehension of the legal effect of it, in relation to the other obligors. So, in the case of Worral v. Jacob (3 Merv., 271), where a person having a power of appointment and revocation, and, under a mistaken supposition, that *DANIEL CARROLL, of Dudington, [*18 a deed might be altered or revoked, although no power of revocation had been reserved, executed the power of appointment without reserving a power of revocation, the court refused to relieve against the mistake.

Aff'g, 3 Mason, 294; See S. C., 2 Mason, 244, 352:

Rev'd by 8 Wheat., 174.

Otto, 185; 9 Otto, 46; 1 Wall., Jr., 185; 2 Wall.. Jr., Cited 12 Pet., 55: 9 How., 92, 97-99, 102, 104; 7 253; 4 Cliff., 196, 580.

Plaintiff in Error,

D.

JOSHUA PEAKE, Defendant in Error.

Evidence-practice-pleading.

When a party to an agreement, signed by the other contracting party, had delivered to such party a copy of the agreement in his own handwriting, but not signed by him, and from the nature of the instrument, it was to be fairly presumed, the original was in his custody, notice to produce the original paper, in order to give the copy in evidence, is not the party by whom the same was made, and who, necessary. Such a copy, when offered to charge by the tenor of the agreement, was to perform certain acts therein stated, may be considered, not as a copy, but as an original, in relation to the obligations of the party giving the copy, and be so given in evidence. Ri

Where letters, à part of the evidence in the court

below, have become lost or mislaid, everything is to be presumed to have been contained in them, to support the opinion of the court, in relation to their contents; and the party who denies that the letters authorized the decision of the court upon them, must show, by evidence, their contents. ^ [22]

The case of Lord Irnham v. Child (1 Bro. C. C., 92) is a very strong one in support of 17*] the general rule, and closely resembles the present, in most of the material circumstances attending it. The object of the suit was to set up a clause containing a power of redemption, in a deed granting an annuity, which, it was said, had been agreed upon by the parties, but which, after deliberation, was excluded by consent, from a mistaken opinion that it would render the contracts usurious. The court, notwithstanding the omission, manifestly proceeded upon a misapprehension of the parties as to the law, refused to relieve by establishing the rejected clause. It is not the intention of the court, in the case now under consideration, to lay it down, that there may not be cases in which a Court of Equity will relieve against a plain mistake, arising from ig. norance of law. But we mean to say, that In a declaration upon an agreement, by way of lease, by which the lessor stipulated to let a farm where the parties, upon deliberation and ad- from the 1st of January, 1820, to remove the former vice, reject one species of security, and agree tenant, and that the lessor should have the tenancy to select another, under a misapprehension of and occupation of the farm from that day, free from all hindrance; the assignment of breaches the law as to the nature of the security so se- was, that, although specially requested on the said lected, a Court of Equity will not, on the 1st of January, the defendant refused, and neglectground of such misapprehension, and the in-ed to turn out the former tenant, who then was, or sufficiency of such security, in consequence of a subsequent event, not foreseen, perhaps, or thought of, direct a new security, of a different character, to be given, or decree that to be done which the parties supposed would

Surplusage in pleading does not, in any case, vitiate after verdict. [23]

had been, in the possession and occupancy of the iff; this assignment is sufficient. (2)

land, and to deliver possession thereof to the plaint

It is sufficient, that the averment should state the

plaintiff's readiness and offer, and his request on the first day of January generally, and not at the last convenient hour of that day; and if an aver

ment of a personal demand is made, it need not | Washington, and the property described in the have been on the land. [24]

Witness my hand this 11th day of December,

1819.

It is agreed, that the taxes shall be paid by Joshua Peake, and the said Carroll will allow the same, on the tax bill, receipted, out of the JOSHUA PEAKE.

21*] six hundred dollars ($600), and to pay | the defendant's handwriting. From the nature all taxes on the same, independent of the above of the transaction, he was entitled to, and must rent; and also, oblige myself to keep the prem- be presumed to have, the custody of the origises in good repair, and not to commit, nor sufinal. The copy, made out by himself, must be fer to be committed, any waste on the said presumed to have come to the plaintiff's possespremises. sion by the defendant's own act; and, by making and delivering it to the plaintiff, the defendant consents that it shall be considered genuine and true. We think that, under such circumstances, this case forms a just exception to the general rule; and that it is not competent for the defendant below to allege against his own acts and admissions that this paper does not, or may not, contain all the verity and certainty of the original. So far we have considered this paper as if it ought to be regarded in the light of a copy. But, we think that is not its true character, as it was presented to the court and jury. We think that, under the circumstances, and to the purposes for which it was offered, it may fairly be regarded as an original.

rent.

Witness,

WILLIAM DUDLEY DIGGES."

Which paper was so offered in evidence, in connection with three letters from defendant to the plaintiff, as a component part of the sum of evidence relied on, to prove the contract as laid in the declaration; which letters are in these words and figures, following, &c. [The letters were mislaid.]

To the reading of which paper, the defendant, by his counsel, objected, as not being competent and legal evidence, to charge the defendant in this case; but the court permitted the said paper to be read in evidence to the jury, &c., to which opinion of the court, the defend ant, by his counsel, excepted, &c. The plaint iff, then, further to support the issue on his part, offered in evidence to the jury, the said letters, from defendant to plaintiff. and admitted to be in the handwriting of the defendant; as component parts, in connection with the said paper before admitted, of the evidence of the agreement on which this action is founded; to the admission of said letters, as part of said agreement, the defendant, by his counsel, objected; but the court overruled said objection, and permitted said letters to be read to the jury, as part of said agreement; to which opinion of the court, the defendant, by his counsel, excepted.

It is insisted by the counsel for the plaintiff in error, that these opinions are erroneous; and that the judgment of the Circuit Court should, for that cause, be reversed.

The bill of exceptions does not put the objection to the paper offered in evidence, distinctly, upon the ground that, being a copy, it could not be used, without timely notice to produce the original. Although some doubt exists, whether the objection ought not to have been placed on that ground, in the court below, in order to make it available here; yet, as the whole argument in this court has proceeded up on the assumption, that the question is suffi- | ciently raised upon the bill of exceptions, we will so consider it. The principle relied upon is, that a copy cannot be given in evidence, if the original be in the possession of the adverse 22*] party; unless timely *previous notice has been given him to produce it at the trial. This is certainly true, as a general rule. But in examining the numerous adjudged cases to be found in the books, in which this general rule has been asserted and applied, we have been able to find no case like this. They are all cases where the copy offered, had not been made by the party, against whom it was attempted to be used. This is a case in which the execution of the original is distinctly admitted; and the paper called a copy is admitted to be wholly in

As relates to Peake's contract to pay rent. &c., it was a copy; but was it a copy as respects Carroll's agreement to let the farm? If so, it was a copy, without an original-for the original paper was not signed by Carroll, and contained no contract, on his part. The paper was offered in evidence, in connection with the three letters from the defendant to the plaintiff, as a component part of the evidence, to prove the defendant's agreement to let the farm to the plaintiff, and the terms of that agreement.

The clerk certifies that the letters referred to are not on file in the cause, and they are not transcribed into the record. In their absence, if there be a supposable case, in which they, and the paper called a copy, were legitimate evidence, regarding that paper, as an original, and not as a mere copy, it must be so regarded. We are bound to presume everything in favor of the correctness of the decision of the court below, until the contrary appears.

Let

If the letters, which are admitted to be in the defendant's handwriting, were relevant to the matter in controversy-and, in their absence, that must be presumed-no doubt can exist of their being competent and legitimate evidence, to prove the contract sued on, so far as they spoke on that subject. It has been already remarked, that the paper called a copy was admitted to be in the defendant's [*23 handwriting, and that it must have come to the plaintiff's hands by the defendant's act. it be supposed, then, that having copied in his own hand, Peake's agreement to pay rent, &c., he had inclosed that paper in one of those letters, and referring to it. The letter here stated, that he (Carroll) agreed to let and lease the farm to Peake, upon terms expressed in the inclosed paper. It is plain that, in the case supposed, the inclosed paper, although it might be a mere copy, as respected Peake's part of the contract, yet, as respected the contract on Carroll's part, would be truly an original document, by adoption and incorporation with the letter, as much as the letter itself. It would be a part of the letter. We do not say, the paper was thus inclosed, and referred to, in the letters, or either of them; but it might have been, for aught that appears, and that is enough.

Upon the principle assumed as correct, that the opinion of the court below must be regard