proved. But it is not sufficient to show that, for the same services as those stated in it, other persons have received a greater compensation, or even that such was to be paid in the particular case, for the settled account and receipt is a later contract. It is necessary to show in addition to this that the complainant acted in ignorance and mistake of his rights. Lawrence v: Schuylkill Navigation Co.,* 4 Wash., 562.

§ 114. Deeds. If in conveying a part of a mining claim the grantor makes a mistake to his own detriment as to the amount conveyed, and in the same conveyance makes another mistake, in his own favor, of a like amount as to another part of the mine, so that the grantee obtains, upon the whole, no more nor no less than was bargained and paid for, the equities being thus equal, equity will not, at the instance of the grantor, correct the mistake against him, if, taking the transaction as a whole, such correction would result to the injury of the other party. Kinney v. Consolidated Vir. Mining Co., 4 Saw., 382.

§ 115. A party who seeks to have a mistake corrected in equity must first do equity. Thus, where the complainant gave a deed of mining land without a stamp, whereas the law required deeds to be stamped, and his grantees conveyed the land to defendants by stamped deed, and the complainant alleged that the deed from his grantees to the defendants, by which the defect in his conveyance to the former was cured, was executed by mistake, held, that equity could not correct the mistake for the purpose of allowing him to avail himself of his own wrong in failing to stamp the deed, and thus destroy the effect of a sale which he had made, and for which he had received his consideration. Ibid.

§ 116. A written agreement was entered into between A. and B., by which it was agreed that land belonging to A. should be conveyed to B. "subject to" an incumbrance. Whereupon A. delivered to B. a deed of the land "subject to " the incumbrance. The deed also contained a clause, inserted by A., who was well aware of the legal difference between the two forms of expression, stating that B. assumed and agreed to pay the incumbrance. Prior to the above agreement, A., through his agent, had attempted to get B. to assume the payment of the incumbrance, but B. had refused. At the time of the delivery of the deed, B. was ill, and did not read the clause relating to the assumption of the debt; but upon discovering it afterwards promptly brought suit to have the deed corrected. Held, that the deed must be reformed as departing, through mutual mistake, from the terms of the actual agreement, and that, under the circumstances, B. was not guilty of such negligence in not examining the deed at the time of its delivery as to prevent him from obtaining relief. Elliott v. Sackett,* 2 Sup. Ct. Rep., 375.

§ 117. A., the original grantee of land in Kentucky, under a survey and warrant from Lord Dunmore, granted the land to B. by metes and bounds based upon first information. The return of the surveyor, however, which, under the laws of Virginia, is the only legal identification of land, was of another boundary. Thus the land described in the deed to B. was never owned by A. The land returned by the surveyor was confiscated and sold by the state as belonging to A. under the warrant. Held, that as the deed to B. did not specify the date of the warrant, the number of acres, nor the person to whom it was issued, the evidence of intention was insufficient to warrant a reformation of the deed to B., thus compelling the grantees of the state to reconvey, especially as forty years had elapsed since the conveyance to B. Russell v. Trustees of Transylvania University, 1 Wheat., 432.

§ 118. Where a deed conveys a certain number of acres "more or less," such qualifying words are intended to cover a reasonable excess or deficit; and if the difference between the real and the represented quantity be very great, a court of equity will correct the mistake. Thus, where the grant was of "two thousand six hundred acres, be the same more or less," an excess of one thousand acres was held to be sufficient evidence of mistake to entitle the grantor to compensation for such excess. Thomas v. Perry, Pet. C. C., 49.

§ 119. Mortgages.- Equity cannot reform a mortgage for uncertainty or misdescription unless the evidence is sufficient to identify the land intended to be conveyed. Thus, where description in mortgage was one hundred acres of land upon the O. river opposite D. island, being part of the same lands conveyed to me by B.'s heirs," and these lands consisted of several parcels, all of which were covered by liens, a bill to reform was dismissed. Turner v. Hart,* 1 Fed. R., 295.

§ 120. Where in executing a mortgage the name of the mortgagee is omitted by mistake, equity will reform the instrument by inserting the mortgagee's name. Parlin v. Stone, 1 McC.,

443.

§ 121. Where the grantee accepts of a mortgagor a deed in which a clause is inserted without his knowledge, making him personally liable to pay the incumbrances upon the premises, he cannot set up the mistake to avoid his liability on the notes, secured by the mortgage, in the hands of a bona fide purchaser before maturity, who took the notes subsequent to the conveyance from the mortgagor to the grantee. Hayden v. Drury, 3 Fed. R., 782.

§ 122. Where a mortgage conveyance contains an erroneous description of the premises, a

court of equity will correct the instrument so as to make it conform to the intention of the parties, where the rights of intervening bona fide purchasers will not be prejudiced thereby. Reeves v. Vinacke, 1 McC., 213.

§ 123. Delay. Unless a party, desiring relief in equity, acts promptly after the mistake is discovered, he will be deemed to have waived all objection to the contract on account of such mistake, especially where the subject of the contract is property of a speculative character, such as mining claims, subject to constant fluctuations in value. Kinney v. Consolidated Vir. Mining Co., 4 Saw., 382.

§ 124. Miscellaneous. Where property seized in admiralty is delivered over to the claimant upon his furnishing bond with sureties, the fact that the adverse party was ignorant that the property was owned by several partners is no ground, in the absence of fraud or mistake, for relief in equity against parties other than those against whom judgment has been rendered, although the latter prove to be insolvent. United States v. Ames, 9 Otto, 35.

§ 125. In suit for goods sold and delivered plaintiff claimed $1.37 per dozen for handles delivered between certain dates. The defendant objected that there were items of those dates carried out in the bill of particulars at $1.25 per dozen. The plaintiff claiming that the bill of particulars contained a mistake in that respect, the court charged the jury that while the plaintiff could not recover for any more handles than his bill of particulars set forth, he was not bound by a mistake in carrying out the rate or price, but could show what he was actually to have. Held, no error. Ames v. Quimby, 16 Otto, 342.

§ 126. A. imported a quantity of merchandise in his own vessel, consigned to B., who received the goods, and gave bonds for the duties to the United States, with C. and D. as sureties. The invoice and bill of lading showed the goods to be the property of A., but the bond was executed by B., without calling himself the agent of A., as the law required in case he was such agent. Held, that the sureties could not recover of A. the amount of the bonds paid by them, on the theory that it was by mistake that the agency of B. did not appear; that the bond was properly given by the consignee of the goods, and therefore there was no mistake; and if there were a mistake, it could not be rectified at law, and in equity the plaintiffs would be told that equality is equity, and that a court of equity will not rectify a mistake in order to violate one of its favorite maxims. Childs v. Shoemaker, 1 Wash., 494.

§ 127. Where a bottomry bond is given upon vessel and freight only, but in a recital in the bond it is stated that the master was necessitated to take the sum loaned on the "vessel, cargo and freight," if the word "cargo" is omitted from the hypothecating part of the bond by mistake, and this fact is stated in the libel, it seems the bond may be reformed. The Schooner Zephyr, 3 Mason, 341.

128. A. purchased from a settler ninety-nine one-hundredths of a tract of land of one hundred acres, belonging to the state. The remaining acre was granted by the settler to B. Afterwards the state commissioners, in pursuance of legislative enactment to the effect that each bona fide settler, or his assignees, should receive one hundred acres upon the payment of a small consideration, granted to A., as assignee of the settler, the whole tract, including the one acre already assigned to B. Held, that B. was entitled in equity to have the one acre conveyed to him by reason of the mistake of the commissioners in considering A. as assignee of the whole tract. Dunlap v. Stetson, 4 Mason, 349.

§ 129. A license given by W. to C. to use patented machines in a certain county, and sell therein plank and lumber dressed by such machines, provided that C. should not use more than six machines there," nor use any such machines, nor sell and dispose of any plank or other thing dressed and prepared in such machines, anywhere else within the United States." It concluded as follows: "It is understood that C. has all the rights I (W.) have in said county, under said patent, to use six machines, and no more." Where it appeared that the actual understanding between W. and C., at the time, was that C. was not to be restricted as to place in selling the dressed plank, and that the last clause was inserted for that purpose, held, that equity would reform the instrument by the insertion of a clause to the effect claimed; and that the matter entitling the licensee to such reformation was a good defense to a proceeding to enforce a specific performance of the contract, where the clause omitted through mistake would, if found in the instrument, constitute a good defense. Woodworth v. Cook, 2 Blatch.,

151.

§ 130. Where one partner, having committed frauds on the firm, makes an assignment of all the partnership effects to indemnify the injured partner for “ all errors and misentries in keeping the books of the firm," the evident intention of the parties being to indemnify the defrauded partner for all injuries sustained in the partnership business, the court will, on the ground of mistake, reform the agreement and assignment so as to indemnify for goods taken by the defrauding partner himself, or money received from customers and not accounted for, if such reformation be necessary to furnish such indemnity. Askew v. Odenheimer, Bald., 380. VOL. XXII - 48

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§ 131. Where an administrator, not having previously given the proper bond with sureties, approved by the judge of probate, sold certain real estate, it was held that the sale was void, the bond not having been given; that whether the omission was accidental or not, it could not be treated as a mistake or accident remediable in a court of equity. Bright v. Boyd, 1 Story, 478.

132. Certain parties executed a contract for the sale of potatoes to the government, in “such quantities (not exceeding three thousand bushels per week) as may be required," under the belief that they were entering into a contract for the sale of nine thousand bushels of potatoes to be delivered as required. The contract, which was held by the claimants two weeks before it was executed, accorded with the terms of the advertisement instead of the claimants' bid. Held, that the claimants' long possession of the contract before its execution precluded them from imputing fraud or mistake. Clark v. United States,* 1 Ct. Cl., 243.

§ 133. A., owner of a promissory note made by B., placed the same in the hands of a broker, who sold it to C., after 11 o'clock in the forenoon, C. paying the money to the brokers. On the same day, at half-past 10 o'clock, an attachment was issued against B., and all his property seized, and his place of business closed. Four days thereafter his notes went to protest. The brokers having paid the money into court, held, that C. was entitled to the money thus deposited, on the ground of mutual mistake as to the solvency of B. and the value of his paper. Harris v. Hanover National Bank,* 15 Rep., 390.

§ 134. A. purchased land, B. signing his notes for the purchase price as surety, the grantor giving bond to convey upon payment of the price. Upon default by A. judgment was recovered against B. as surety. Whereupon the grantor delivered up the first bond and executed a new bond to convey to B. Prior to the execution of this second bond, and unbeknown to the grantor, A. had allowed the land to be sold for taxes. Upon bill by B. to rescind the contract and enjoin the judgment, the grantor now being unable to convey a good title, held, that the loss was B.'s, and that the bond should be reformed so as to substitute B. for A., according to the real agreement of the parties. Bradford v. Union Bank of Tennessee, 13 How., 57.

MONEY.

[Bills of Credit, see CONSTITUTION AND LAWs. See BANKS; BILLS AND NOTES.]

I. IN GENERAL, SS 1-48.

II. UNITED STATES TREASURY NOTES, §§ 49-125.

I. IN GENERAL.

·Contract made in one country and sued on in another, § 1.—Sterling debt, § 2.— Notes issued by a city, § 3.

§ 1. Where a contract is made in one country for a sum of money payable in the currency of that country, and a suit is brought in another country for the money, the amount to be recovered is such sum in the currency of the country where the suit is brought as is equivalent to the amount contracted to be paid in the currency of the contract computed at the then rate of exchange. Hargrave v. Creighton, § 4.

§ 2. In an action in 1868, on a debt of £849 6s., the evidence showed that at the time of the breach the pound sterling was worth $11 in United States currency, and at the time of the hearing $6.64. The court was of opinion that the only safe rule was to compare the pound and the dollar, in a case of this kind, upon a gold basis, and that the measure of damages would be the amount of the claim computed in our money at the real par of exchange at the time of the hearing, which was $4.86. The question whether the plaintiff could lawfully refuse a tender of notes on the ground of the unconstitutionality of the legal tender acts, left undecided. Reiser v. Parker, §§ 5, 6.

§ 3. A provision in the charter of a municipal corporation that it shall have power to contract and be contracted with, with "all the rights, franchises, capacities and powers appertaining to municipal corporations," is not such an express grant of power as to enable such corporation to issue small bills to circulate as currency, when it is against the public policy and express law of the state for a person or corporation so to do. Nor is charter power to borrow money and give municipal bonds such an express grant of power. And where bills are thus illegally issued by a public corporation, the holder cannot recover back the consideration given therefor, for he is charged with notice of the wrong, and in pari delicto with the officers

so wrongfully issuing them. Nor will a law, passed in aid of the rebellion, requiring their redemption, validate such notes. But where notes or bills are illegally issued by a private corporation, the holder who is not in pari delicto may recover back the consideration given for them, as money had and received. Thomas v. City of Richmond, §§ 7-10. [NOTES.-See SS 11-48.]

HARGRAVE v. CREIGHTON.

(Circuit Court for Georgia: 1 Woods, 489-493. 1873.)

Opinion by WOODS, J.

STATEMENT OF FACTS.- This action is founded on several bills of exchange. The following is a copy of one of them:

"£166. 13. 4.

MANCHESTER, May 2, 1870.

"Nine months after date, pay to our order one hundred and sixty-six pounds, thirteen shillings and four pence, for value received.

"GEO. J. HARGRAVE & Co.

"To Messrs. HUGH CREIGHTON & Co., 883 Belfast. "Payable in London."

The other bills are similar, save in amount and time of payment. The bills show that the contracts were made and were to be performed in England. It is admitted that the verdict must go for the plaintiff. The only question controverted is, What ought to be the amount of the verdict? Upon this point plaintiff has introduced the testimony of a witness, who swears that it would require the sum of $6,053.49 to purchase a bill of exchange on London for £1,078 168. 9d. This is twenty-six and one-fourth per cent. more than the face value of the bills sued on, and is made up partly in exchange and partly in the premium on gold. The plaintiff claims that he is entitled to this twentysix and one-fourth per cent., and the defendant denies it.

§ 4. When a contract is made in one country for a sum of money payable in the currency of that country, and a suit is brought in another country for the money, the amount to be recovered is such sum as will be equivalent to the amount contracted to be paid in the currency of the contract.

The question whether, in a case similar to this, the plaintiff would be entitled to exchange, has been decided adversely to the claim in the courts of New York. Thus in Scofield v. Day, 20 Johns., 102, where a promissory note was drawn at Montreal, in the British Province of Lower Canada, payable to parties residing in England, it was held that in a judgment obtained on a note in a court of the state of New York, the plaintiffs were not entitled to any allowance for the current rate of exchange in England at the time of the judgment.

So in Marvin v. Franklin, 4 Johns., 124, it was held that when a person in New York purchases goods in England, and is sued here, the creditor can recover the amount at the par of exchange only, and is not entitled to any allowance for the rate of exchange, or for the price of bills on England. The court said, "the debt is to be paid according to the par and not the rate of exchange. It is recoverable and payable here to the plaintiffs or their agent, and the courts are not to inquire into the disposition of the debt after it reaches the hands of the agent." The same doctrine was held in Adams v. Cordis, 8 Pick., 260, as the proper rule in all cases, except bills of exchange. On the other hand, Mr. Justice Story says (Confl. of Laws, secs. 308, 309, 310): "When a contract is made in one country and is payable in the currency of that country, and a suit is afterwards brought in another country to

recover for the breach of the contract, a question often arises as to the manner in which the amount of the debt is to be ascertained, whether at the nominal or established par value of the two currencies, or according to the rate of exchange at the particular time existing between them. The proper rule would seem to be, in all cases, to allow that sum in the currency of the country where the suit is brought which should approximate most nearly to the amount to which the party is entitled in the country where the debt is payable, calculated by the real par and not the nominal par of exchange. In all cases we are to take into consideration the place where the money is, by the original contract, payable; for, wheresoever the creditor may sue for it, he is entitled to have an amount equal to what he must pay in order to remit it to that country. Thus, if a note were given in England for £100, payable in England, or, what is the same thing, payable generally, then, in a suit in Massachusetts, the party would be entitled to recover, in addition to the $444.44, the rate of exchange between Massachusetts and England, which is ordinarily from eight to ten per cent. above par. If the exchange were below par, a proportionate reduction should be made, so that the party would have his money replaced in England at exactly the same amount he would be entitled to receive in a suit there."

In Cash v. Kennion, 11 Ves., 314, Lord Eldon held that if a man in a foreign country agrees to pay £100 in London upon a given day, he ought to have that sum there on that day, and if he fails in that contract, wherever the creditor sues him, the law of that country ought to give him just as much. as he would have had if the contract had been performed. Mr. Justice Washington, in the case of Smith v. Shaw, 2 Wash., 167, in a suit brought by an English merchant on account for goods shipped to the defendant's testator, where the money was doubtless to be paid in England, and the question was made, whether, it being a sterling debt, it should be turned into currency at the par of exchange, or at the then rate of exchange, held that the debt was payable at the then rate of exchange. See, also, Grant v. Healy, 3 Sumner, 523; Dungannon v. Hackett, 1 Eq. Cas. Abr., 288; Ekins v. East India Co., 1 P. Wms., 395.

It seems to me, not only that the weight of authority, but the weight of reason, is with the plaintiff on this question. The defendants agree to pay their debt to the plaintiffs on a day certain, in London. They break their contract and remove to America, where the plaintiffs are compelled to follow them. Is not the plaintiff entitled to the same fruits of his contract at the hands of a court of justice as if the contract had been kept? And ought the defendants to be allowed, by breaking their contract, to make it any the less valuable to the plaintiff, and ought they to derive benefit from their own wrong in violating their promise by being allowed to pay their debt in a cheaper currency than would have been required had they kept their contract? These questions, it seems to me, should be answered in the negative.

The legal tender act cannot affect this question. The point is, What is due from the defendants to the plaintiff on their contract? When that is ascertained, the amount is solvable in currency. Let the verdict be for $6,053.49, the amount claimed by plaintiffs.

756