"According to the well-settled principles of equity jurisprudence applicable to such a subject, we must rescind the contract and sale entered into and arranged by mistake in a substantial particular, and which, if suffered to remain, will work a fraud upon the plaintiff, unless the same be confronted to the truth and fact in the particular complained of."

SECTION 41. MISTAKES OF THIRD PERSONS.

Where the parties to a contract come to an agreement which is reduced to writing by a third person, who makes a mistake in so doing, relief may be obtained in equity. Mutuality of mistake is necessary here as elsewhere; that is, the contract as written must fail to express the intention of either party to the contract." If, however, the written instrument failed to express the agreement of the parties, the right to relief will not be defeated because one party discovered the mistake before signing, and failed to disclose it to the other.R

SECTION 42. MISTAKES OF LAW.

Equity will not relieve against mistakes of law. There are probably no real exceptions to this rule." There are, however, three apparent exceptions, as follows:

(a) Mistakes as to private statutes.

' Dinian vs. Railroad Co., 5 R. I.,

137.

• Razzell vs. Razzell, 109 Ind., 354; 10 N. E., 114.

"But there is a long line of specific authorities, most of them undoubtedly correct, in which relief for mistake of law has either been granted or admitted to be a proper head of equity jurisdiction. All of these cases will, upon examination, be found to rest, not upon the con

sideration of a mere mistake of law, stripped of all other circumstances, but upon an admixture of other ingredients going to establish misrepresentation, imposition, abuse of confidence, undue influence, mental imbecility, or that sort of surprise which equity uniformly regards as a just foundation for relief." Eaton on Equity,

Sec. 112.

(b) Mistakes as to foreign laws.

(Both of these mistakes are considered as being mistakes of fact, it being necessary to prove both private statutes and foreign laws as facts.)

(c) Where a mistake of law occasions a mistake of fact, and the action from which relief is sought is induced by such mistake of fact. The most common illustrations of this last class are fond in mistakes as to ownership which are occasioned by mistakes of law. A mistake as to ownership, however occasioned, is a mistake of fact.

Mistake by a party as to the legal effect of an agreement which he executes, or as to the legal results of an act which he performs, is no ground for either defensive or affirmative relief.10 Thus, a deed conveying land to the grantee for life, "and upon his death unto his heirs and their assigns forever," has been held to pass a fee to the grantee, even though it also recites an intention to convey the land to the grantee "to hold only during his natural life, and upon (his death) to be held in fee simple by his heirs." The fact that the word "heirs" was inserted in such deed instead of "children," by mistake as to the legal effect

10 "If there were no elements of

fraud, concealment, misrepre-
sentation, undue influence, vio-
lation of confidence reposed, or
of other inequitable conduct
in the transaction, the party
who knew, or had an oppor-
tunity to know, the contents
of an agreement or other in-
strument cannot defeat its
performance or obtain its can-
cellation or reformation be-
cause he mistook the legal
meaning and effect of the
whole or of any portion of its
provisions. Where the parties,
with knowledge of the facts,

and without any equitable incidents, have made an agreement or other instrument as they intended it should be, and the writing expresses the transaction as it was understood and designed to be made, then the above rule uniformly applies; equity will not allow a defense, or grant a reformation or rescission, although one of the parties and as many cases hold, both of them-may have mistaken or misconceived its legal meaning, scope and effect." Pomeroy on Equity Jurisprudence, Sec. 843.

of the word, being held no ground for reforming the deed.11

SECTION 43. FORMS OF RELIEF GRANTED BY EQUITY IN CASES OF MISTAKE.

The two great equitable remedies in the case of mistake are the concellation and the correction of the contract, deed or other instrument. Which will be granted in each particular case will depend upon the circumstances of the case and the prayer in the bill of complaint. Mistake can also be set up as a defense to a bill for the specific performance of the contract, or other equitable suit.

"Fowler vs. Black, 136 Ill., 363; 26 N. E., 596.

ACCIDENT.

SECTION 44. DEFINITION.

Of all the definitions of accident, as the term is used in equity, the best and most accurate, is undoubtedly that of Pomeroy,' which is as follows: "Accident is an unforeseen and unexpected event, occurring external to the party affected by it, and of which his own agency is not the proximate cause, whereby contrary to his own intention and wish, he loses some legal right or becomes subject to some legal liability, and another person acquires a corresponding legal right, which it would be a violation of good conscience for the latter person, in the circumstances, to retain."

SECTION 45. DISTINCTION BETWEEN ACCIDENT AND

MISTAKE.

Two great distinctions are to be noticed between accident and mistake. In the first place mistake is subjective, while accident is objective. Mistake is in the minds of the parties, while accident is external thereto. Secondly, mistakes take place at the time the contract is entered into, while accident happens after the contract has been made or the right acquired which suffers injury by the accident.

SECTION 46. LOST INSTRUMENTS.

One of the most important class of accidents against which equity will grant relief is found in the 1 Equity Jurisprudence, Sec. 79.