Aldrich & Parsons and Shurtleff, for the plaintiff; Ray & Drew, for the defendants.

FOSTER, J., delivered the opinion of the court: Every person who inflicts an injury through his own negligent or wrongful act is responsible in damages for its consequences. This rule applies to all servants and agents executing the orders or the business of their masters or principals, as well as to the masters themselves; but, as the servants or agents are often persons unable to make compensation to the parties injured by their acts, the law properly holds the master or employer responsible for the act of his servant or agent, whether the work is done by a domestic servant or day-laborer, or by a person who works by the job or piece, and contracts to do work for a specific sum; -provided, always, that the workman is an ordinary laborer, personally engaged in the execution of the work, acting under the control of the master, and not a contractor, exercising an independent employment, and selecting his own servants and workmen for the performance of the work.

The liability of any one other than the person actually doing the act from whence the injury results, proceeds on the maxim qui facit per alium facit per se. But, although a person has ordered or directed a particular thing to be done, yet if he does not employ his own servants and workmen to do it, ut intrusts the execution of the work to a person who exercises an independent employment, and has the immediate dominion and control over the workmen engaged in the work, he is not responsible for injuries done to third persons from the negligent execution of the work, unless a nuisance is thereby created and continued on his own premises. Addison on Torts (4th Eng. ed.) 411-413.

The maxim, respondeat superior, depends on the presumed control implied by the relation between the parties. It therefore does not extend to the case of an independent contractor, to whom the execution of a work is committed without any control or power of direction being reserved on the part of the employer as to the manner of executing the work. In such cases the law makes the contractor alone responsible for damage done by him in the execution of the work, the maxim respondeat superior applying only to the contractor, for the acts of his servants. But the rule which thus exempts the employer does not apply to cases where the injurious act is the very act which the contractor was employed to do, or a necessary consequence of the work committed to him. Campbell on Negligence, § 75. Moreover, if the contractor personally interferes and gives directions to the sub-contractor, or to the workmen employed by him, he will be responsible for the orders given; but he cannot be charged simply on the ground of his filling the character of the contractor. Addison on Torts (4th Eng. ed.) 415.

These general principles are illustrated by very numerous cases in the courts on both sides of the Atlantic. We need refer to but a few of them.

In Overton v. Freeman, 11 C. B. 867, the defendants had contracted to pave certain portions of the parish of St. Pancras, and entered into a sub

contract with one Warren to pave the street in question. Warren employed laborers to work under him; and certain curbstones were so placed in the pathway by these men as to obstruct the same, "and to constitute a public nuisance," in consequence of which the plaintiff fell over them and sustained an injury. Held, that Warren was responsible, and not the defendants. Maule, J., said, "The relation of master and servant has no existence in a case like this. * * I think the present case falls within the principle of those authorities which have decided that the sub-contractor, and not the person with whom he contracts, is liable, civilly as well as criminally, for any wrong done by himself or his servants in the execution of the work contracted for." Cresswell, J., concurring said, "If the act contracted to be done would itself have been a public nuisance, of course the defendants would have been responsible; but the circumstance of the materials being supplied by the defendants and brought to the spot in their carts, makes no difference"-citing Knight v. Fox, 5 Exch. 721. See, also, Reedie v. The London & Northwestern Railway Co., 4 Exch. 244; Peachey v. Rowland, 13 C. B. 182; Steel v.The Southeastern Railway Co., 16 C. B. 550; Serandat v. Saisse, L. R.. 1 C. P. 152 (affirming the judgment of the supreme court at Mauritius, on appeal to the privy council), whereby it appears that the French law, in its application of the maxim respondeat superior, is in harmony with the English law, the Code Napoleon providing,-"Les maitres et commettants sont responsables du dommage cause par leur domestiques et preposes dans les fonctions auxquelles ils les ont employes." In their interpretation of the article, the French lawyers appear to have qualified the doctrine so far as regards the commettant and prepose, by saying that to make commettant responsible for the negligence of the prepose, the latter must be acting "sous les ordres, sous la direction et la surveillance du commettant."

The general principles applicable to cases of this character, as declared in the cases already referred to, are very clearly recognized by the American courts and jurists.

Mr. Chief Justice Bigelow has suggested the distinction upon which, according to his understanding, all the cases turn: "If the person employed to do the work carries on an independent employment, and acts in pursuance of a contract with his employer, by which he has agreed to do the work on certain specific terms, in a particular manner, and for a stipulated price, then the employer is not liable; the relation of master and servant does not subsist between the parties, but only that of contractor and contractee. The power of directing and controlling the work is parted with by the employer and given to the contractor. But, on the other hand, if work is done under a general employment, and is to be performed for a reasonable compensation, or for a stipulated price, the employer remains liable, because he retains the right and power of directing and controlling the time and manner of executing the work. or of refraining from doing it if he deems it necessary or expedient." Brackett v. Lubke, 4 Allen, 138.

The Supreme Court of Michigan have undertaken to lay down some specific rules for the application of the maxim. It applies they say "1. Where the relation of master and servant, in its most familiar signification, exists. 2. Where the superior is in posession of fixed property (as real estate), upon which some service is to be performed; for in such cases the use of the property is confined by law to himself, and he should take care that that use and management works no injury to others. 3. Where, although a special contract be entered into respecting personal property, or services, which does not create the relation of master and servant, as more familiarly understood, yet the principal retains a supervising power over the execution of the contract, and the actual and constructive possession of the property remains in him." "It does not apply," they say, "to those cases where-1. Property is entrusted to the care and management of those who are not the servants of the owner, but who exercise employments on their own account, with respect to the care and management of the goods and property of any person who may choose to entrust them to them, to be dealt with according to that employment. 2. Where a contract is made with another in respect of services upon property, when no power of direction or supervision is reserved by the principal, but the entire discretion as to the mode of execution of the contract, together with control of the property, is confined to the employee. 3. In case of a like contract, the contract prescribing the mode of its execution, where possession of the property is surrendered to the employee to enable him to execute such contract. 4. Where the relation of principal contractor and sub-contractor exists, in relation to works of public improvement, conducted under a public grant, where, from considerations of public policy, and the very nature of the employment, each subcontractor is regarded as a principal, pursuing an independant calling, and responsible for the acts of those in his immediate employment." Moore v. Sanborne, 2 Mich. 519, 529.

The facts of the case last cited were very similar to those under our present consideration. It was a case of injury to the plaintiff, resulting from jams of logs occasioned by the obstruction of Pine river, a public highway. The defendants made a bargain with their employees to cut all the logs the defendants had on certain lands, and to deliver them to the defendants at the mouth of the river-the defendants having no interest in the running of the logs until they reached the point of delivery, nor rendering any assistance, pecuniary or otherwise, in the cutting or running of the logs. It was considered that the relation of master and servant did not exist, and that the employee alone was liable for any injury occasioned to others in performance of his contract.

The only distinction between that case and the present seems to be that, in the former it does not appear whether or not the dams of the defendant were used in the running of the logs.

In Cincinnati v. Stone, 5 Ohio St. 38, it was declared that the principle of respondeat superior does not apply to cases of independent contracts not

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creating the relation of principal and agent, and where the employer does not retain the control over the mode and manner of the performance of the work under the contract. To the same effect is Gwathney v. The Little Miami Railroad Co., 12 Ohio St. 92. In Corbin v. The American Mills, 27 Conn. 274, it is said: To render the employer liable, the employee must be acting at the time strictly in the place of the employer, in accordance with and representing the employer's will and not his own; and the business must be strictly that of the employer, and not in any respect the employee's." In Eaton v. European & North American Railway Co., 59 Me. 52, Appleton, C. J., said: "When the contract is to do an act in itself lawful, it is presumed it is to be done in a lawful manner. If the injury was the natural result of the work contracted to be done, and it could not be accomplished without causing the injury, the person contracting for doing it would be held responsible." In Pawlet v. The Rutland & Washington Railroad Co., 28 Vt. 297, it was said: "Though it may be assumed that a public nuisance had been committed by the servants of the sub-contractors, and a particular injury has resulted therefrom to the plaintiffs, and for which the town [of Pawlet] had been compelled to make satisfaction, yet we can not discover any privity existing between the defendants and the employees of the sub-contractor. The contract was for a lawful purpose, and in no way involved the commission of a wrong, and the employees of the sub-contractor were not the servants of the defendants, nor under their control." To the same effect is Clark v. The Vt. & Canada Railroad Co., 28 Vt. 103.

In Schular v. The Hudson River Railroad Co., 38 Barb. 653, where D. & M. had an absolute contract with the defendants to draw the defendants' cars over a certain portion of the road, to furnish the horses and drivers for that purpose, and to assume the entire control of the work, it was held that the defendants were not liable for the negligent acts of the servants of D. & M., and that the right of the defendants to control the contractor, or to ter minate the contract if the work was not done to the satisfaction of the defendants, does not alter the liability, according to the decision of the court of appeals in Pack v. The Mayor, &c., of N. Y., 8 N. Y. 222. The fact, that the right to use an instrument not in its nature dangerous (as, in the case before us, the defendant's dams) was given, under a contract by which it is to be used in performing work for the owner upon his premises, does not change the liability. King v. N. Y. C. & H. R. R. Co., 66 N. Y. 181. See, also, Kelly v. Mayor, &c., of N. Y., 11 N. Y. 432; Blake v. Ferris. 5 N. Y. 48; Slater v. Mersereau, 64 N. Y. 138; Callahan v. B. & M. River R. R., 23 Iowa 564; Cuff v. Newark & N. Y. R. R. Co., 6 Vroom 17; Scammon v. Chicago, 25 III. 424; The Prairie, &c., Co. v. Doig, 70 Il. 52; Hale v. Johnson, 80 Ill. 185; Painter v. Mayor, &c., of Pittsburgh, 10 Wright 213; Wray v. Evans, 80 Pa. 102; Sherman & Redfield on Negligence (2d ed.) Sec. 81; Hilliard v. Richardson, 3 Gray 352.

In Lowell v. B. & L. Railroad, 23 Pick. 24, cited

by the plaintiff, an accident occurred through the negligence of a servant of a contractor employed by the defendants to build a portion of their railroad, and the court sustained the plaintiff's claim on the authority of Bush v. Steinman, 1 Bos. & Pul. 404, which was declared to be "fully sustained by the authorities, and by well established principles," although (says Judge Thomas, in Hilliard v. Richardson) the decision of Lowell v. The Railroad did not involve the correctness of the ruling in Bush v. Steinman. At considerable length, Judge Thomas considers the case of Bush v. Steinman, and the authorities upon which that case was based, and declares, as other courts pretty generally have since declared, that Bush v. Steinman does not stand well upon authority or reason, and is no longer revered in Westminster Hall,—is no longer law in England. "If ever a case can be said to have been overruled, directly and indirectly, by reasoning and by authority, this has been." Thomas, J.. in Hilliard v. Richardson, 3 Gray 349, 363. See Wright v. Holbrook, 52 N. H. 120. In Lowell v. The Railroad, the accident occurred from the negligence of a servant of the corporation, acting under their express orders. The case stands perfectly well upon its own principles, but is not applicable to the case before us. So, too, the case of Darmstaetter v. Moynahan, 27 Mich. 188, cited by the plaintiff, if applicable at all, does not sustain the plaintiff's argument. The case expressly finds that "the work was done by himself (the defendant) by means of Kehl, who was his instrument." "The arrangement neither implied nor contemplated that Kehl should be master of the possession." The defendant there employed Kehl to fill the ice-house, and an injury was sustained by Kehl's unlawfully and unnecessarily incumbering the street with the blocks of ice. The decision is governed by the rules applying to agency. Of the same character are the cases of The Chicago, St. Paul & Fond du Lac R. R. v. McCarthy, 20 Ill. 388, and Detroit v. Corey, 9 Mich. 165.

Carman v. The Railroad, 4 Ohio 399, also cited by the plaintiff, holds, that before a case can be made for the application of the principle of respondeat superior, not only the relation of master and servant must have existed, but it must appear that the servant, while engaged in the business of the master, has done some act or omitted some duty, neither directed nor authorized by the master, to the injury of a third person. And McCamus v. The Gas-Light Co., 40 Barb. 380, in which the defendant was charged, "goes upon the principle," says the court, "of qui facit per alium, facit per se, from which the rule of respondeat superior arises; but this rule does not apply, and the liability does not exist, where it can be shown that those engaged in executing the work, and by whose carelessness or want of skill the injury was occasioned, are not the servants or subordinates of him for whose beneft the work is being performed, but are acting under a contract or employment which leaves the contractor or employee free to exercise his own judgment as to the means and assistants to be employed in accomplishing the work, without being subject to control in these respects by the party for whom the work is being done."

If the decision in Stone v. The Cheshire Railroad, 19 N. H. 427, adopts the overruled doctrine of Bush v. Steinman, to that extent it is no longer law in this state. Wright v. Holbrook, 52 N. H. 120. But Stone v. The Railroad required no support from the doctrine of Bush v. Steinman, because, although the injury in Stone v. The Railroad was occasioned by the servants of the sub-contractors, yet Tilton, the chief engineer of the company, “had the general supervision of work done upon the road; he and the engineers under him Ilaid out the work, and saw that it was done according to the contract; and if they found anything going wrong, they attended to it, and had it corrected;" and, says Judge Gilchrist (p. 441), there was no "independent employment exercised by the contractors."

The Thurstons exercised a purely independent employment. There was no privity between the defendants and the Thurstons. Pawlet v The Railroad, before cited. The circumstance of the dams being furnished by the defendants makes no difference. They were not per se a nuisance. Overton v. Freeman, ante; and it by no means follows that because the dams were capable of being so used as to constitute a nuisance, or were capable of an improper, a negligent, or a mischievous use, therefore an injury to the plaintiff was a necessary or a natural consequence of a proper use of the dams, or that the Thurstons might not have fulfilled their contract with the defendants without detriment to the plaintiff, and without any improper management with respect of the dams; much less that the defendants, by giving the Thurstons permission to use the dams, authorized or sanctioned any improper management of them.

The plaintiff's injury was not the natural result of the work contracted to be done. A reasonable use of the dams for proper purposes, and a reasonable use of the stream for the transportation of logs, were lawful; and the authority conferred by the defendants was, to execute the contract by a proper and reasonable use of all its means and appliances. When a contract is to do an act in itself lawful, it is presumed it is to be done in a lawful manner. Eaton v. European & N. A. Railway, before cited.

In the circumstances of this case, the Thurstons may, perhaps, be responsible; but these defend

ants are not.

Exceptions overruled. Bingham, J., did not sit.

CONSTITUTIONALITY OF FEDERAL LEGISLATION AS TO TRADE-MARKS.

Judge Dyer, by means of ample authorities, demonstrates the fallacy of deducing legislative power from the paragraph of the Constitution relating to authors and inventors. His opinion on that point is clear, wellwritten and impregnable. (See 7 Cent. L. J. 405; also 7 Cent. L. J. 143, 163.) The courts have settled that doctrine by decisions, the long current of which is unbroken by a ripple, except in the Duwell case. (See 7 Cent. L. J. 81.) Judge Dyer was, therefore, right on that point, and Judge Swing wrong. If the learned

judge in Wisconsin had contented himself with stopping there, this disquisition needed not to be inflicted. It is understood by laymen, as well as lawyers, that in this age of dash, steam, electricity and long calendars, courts decide causes in the light in which they are presented. Pleaders adopt theories, and judges apply the law, accordingly. In the two cases under discussion, a false theory was adopted. If the court had merely dismissed a suit based on a false theory, counsel would have been estopped from complaining. Hence the trouble. After much and satisfactory argument, Judge Dyer approaches a point that evidently had not been considered by counsel. Let us examine something that is much like an obiter dictum. He said:

"It may be added, that the constitutionality of the trade-mark statute can not be sustained under the clause which gives to Congress the power to regulate commerce among the several states, or, in my opinion, under any provisions of the Constitution which prescribe the legislative powers to Congress." (7 Cent. L. J. 407.)

*

Issue is joined thereon. Now for proofs. An able jurist, another federal judge, who has given this subject much attention, has several times passed upon this question. Judge Giles, of Baltimore, Md., in the case of United States against Watson Rider, tried October 7, 1878, on an indictment for counterfeiting a trademark, held, as he had done before then, that the stat ute in question is constitutional. That came up on demurrer. He declined to hear the argument of the prisoner's counsel, saying, substantially, that it was too late a day to assert the contrary; and that the same statute had frequently been drawn in question, not only in the United States Circuit Court, but also in the Supreme Court of the United States, and in all instances it was held to be constitutional. Whence does Congress derive its power to legislate on trade-marks? Answer: Under the paragraph of Article I, to regulate commerce among the several states. As Chief Justice Marshall said, commerce is undoubtedly traffic, but it is something more. It describes the commercial intercourse between nations and parts of nations in all its branches, and is regulated by prescribing rules for carrying on that intercourse. In that case and later cases the Supreme Court held that commerce includes navigation, embargoes, and all other necessary incidents of commerce. A trade-mark is an incident of commerce. Its very name implies that. Our treaties and conventions on the subject with foreign nations describe and treat of it as such. So do treaties of European nations with one another. So do statutes of all countries. The statute in question purports to be for the protection of commercial rights, and nothing else. The very existence of a trade-mark depends on commerce. The device- whatever it may be-a seal, a letter, a cipher, a monogram, a fanciful name, in short, any arbitrary symbol, has no legal vitality until affixed to merchandise, and it ceases to exist the instant that it is dissociated therefrom, On the strength of a glance at it, as an index of good faith and fair dealing, goods to the value of millions of dollars change ownership. It applies to all kinds of goods, wares and merchandise; whether steel rails enough to reach across the continent, or a paper of camoric needles; a costly bale of silk, or a spool of thread; a magnificent pianoforte, or a toy whistle; a barrel of flour or an oyster-cracker; a pipe of wine or a pint bottle of the same. They all bear the commercial signature called a trade-mark. The mark is an essential element to the value of merchandise. The framers of the commercial paragraph supposed that they had made it perfectly plain and intelligible, yet men have long glided over its surface without divining its full scope and contents. The language which grants the power as to one description or incident of commerce grants it as to all. The

purposes of commerce would be to a great degree defeated if authenticating marks-called by an eminent French political ecomomist "the honorable source of confidence and of commercial prosperity "-could not be fully protected. Justice Johnson said: "Commerce, in its simplest signification, means an exchange of goods; but in the advancement of society, labor, transportation, intelligence, care, and various mediums of exchange, become commodities, and enter into commerce; the subject, the vehicle, the agent, and their various operations, become the subject of commercial regulations." It is difficult to comprehend how commerce can be fully protected, if its inseparable and trusty hand-maiden and symbol, its flag-the trademark-is to be left a prey to pirates. *

The power "to regulate commerce " is exclusively in Congress, and in its terms unlimited, and includes all means appropriate to the end, and all means that have usually been exerted under the powers. The lack of that power, says the Supreme Court, was one of the principal defects of the confederation, and probably as much as any cause conduced to the establishment of the Constitution. The power to regulate commerce is exclusively in Congress, for the individual states are unknown to foreign nations. Said Chief Justice Marshall: "The genius and character of the whole government seem to be that its action is to be applied to all external concerns which affect the states generally; but not to those which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the govern. ment." The Leidersdorf case (7 Cent. L. J. 405.) is not one of mere internal commerce. The packages of tobacco that bear the marks, true and simulated, belong to inter-state commerce. If it had been made to appear that the goods were intended exclu-ively for consumption within the State of Wisconsin, as in case of mineral water dipped from a spring to be quaffed on the spot, or refreshments sold at a bar or an inn, then the case would be different.

In considering the question, whether Congress has any authority to legislate on the subject of trademarks, it is not irrelevant to refer to treaties and equiv. alent national acts for trade-mark protection. Equally with itself, the Constitution says that "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." By the "Additional Article to the Treaty of Navigation and Commerce," between our country and Russia, of 1832-which article was concluded and signed January 27, 1868-it was provided that, to secure complete and efficient protection, the trade-mark of Russian subjects must be lodged exclusively at our patent office. So also, by the terms of the trade-mark convention of April 16, 1869, with France. And, again, the same, by the "Additional Article to the Treaty of Commerce and Navigation," with Belgium, proclaimed July 30, 1869. The validity of those treaty stipulations has not been disputed. It is an axiom that the powers to make treaties and statutes are commensurate. The subsequent registration act embraces rights guaranteed "by treaty or convention." The act is intended in part to effectuate those treaties. If a treaty is valid, so must be a statute passed in accordance with it. Conceding the proposition that our government can and must protect foreigners in their rights to use their trademarks, how can beneficent protection to the same extent be denied to our own citizens? A government without power to judicially protect its own incidents of commerce, when it can protect those of strangers and aliens, is an inconceivable anomaly. If the statute is void, so must be the treaties mentioned. The declaration (a treaty by anotuer name) between the United States and Great Britain, proclaimed July 17, 1878, says that it is for the protection of "everything pertaining

to property in trade-marks and trade-labels. It is understood that any person who desires to obtain the aforesaid protection must fulfill the formalities required by the laws of the respective countries." The "formalities" referred to are those that are required by the registration statutes then and now in force in each country. Why was the solemn declaration made?

It was in order to secure the advantages offered through registration. It is a corollary from the foregoing, that, if the statute is unconstitutional, treaties, conventions, and declarations, on the same subjectmatter, are mockeries and costly delusions. The preamble to the Constitution declares that it was ordained to" establish justice," and "promote the general welfare." The framers of that instrument no doubt intended the power "to regulate commerce" to be as ample as any other power conferred.

Conclusions: Congress has full power to legislate on the subject of trade-marks. The power is derived from the constitutional authority "to regulate commerce." The registration statute of July 8, 1870 (Revised Statutes, sections 4937-4947), is consequently valid.-WM. HENRY BROWNE, in the New York Tribune.

DIGEST OF DECISIONS OF THE SUPREME COURT OF THE UNITED STATES.

October Term, 1878.

INSUR

was

MISTAKE-REFORMATION OF CONTRACT ANCE POLICY.-This wao a suit in equity instituted by the firm of Snell, Taylor & Co., to reform a certain policy of insurance for the sum of $8,000 on 220 bales of cotton. The insurance was effected by one K, a member of the firm. The defendant's agents with knowledge or informatiou, that the cotton owned by Snell, Taylor & Co., and not by Keith individually, intended to insure, and, by direct statements, induced him to believe that they were giving insurance in his name upon the interest of the firm. He assented to the insurance being so taken in his name, because of the distinct representation and agreement that the interest of the firm in the cotton would be thereby fully protected against loss by fire. But, according to the technical import of the words emploved in the policy which the company subsequently issued and delivered, only Keith's interest in the cotton was insured. Held, that equity would grart relief by reforming the policy so as to cover the firm interest. "We have before us a contract from which, by mistake, material stipulations have been omitted, whereby the true intent and meaning of the parties are not fully or accurately expressed. There was a definite, concluded agreement as to insurance, which, in point of time, preceded the preparation and delivery of the policy, and this is demonstrated by legal and exact evidence, which removes all doubt as to the sense and understanding of the parties. In the attempt to embody the contract in a written agreement, there has been a mutual mistake, caused chiefly by that contracting party who now seeks to limit the insurance to an interest in the property less than that agreed to be insured. The written agreement did not affect that which the parties intended. That a court of equity can afford relief, in such a case, is, we think, well settled by the authorities. In Simpson v. Vaughn, 2 Atk. 33, Lord Hardwicke said that a mistake was ‘a head of equity on which the court always relieves.' In Henkle v. Royal Exchange, 1 Ves. Sr. 318, the bill sought to reform a written policy after loss had actually happened, on the ground that it did not express the intent of the contracting parties. Lord Hardwicke said: No,

doubt but this court has jurisdiction to relieve in respect of a plain mistake in contracts in writing as well as against frauds in contracts, so that if reduced to writing contrary to the intent of the parties, on proper proof, would be rectified.' In Gillespie v. Moon, 2 Johns. Ch. 594, Chancellor Kent examined the question both upon principle and authority, and said: 'I have looked into most, if not all of the cases in this branch of equity jurisdiction, and it appears to me established, and on great and essential grounds of justice, that relief can be had against any deed or contract in writing founded in mistake or fraud. The mistake may be shown by parol proof, and the relief granted to the injured party, whether he sets up the mistake, affirmatively by bill, or as a defense.' In the same case he said: 'It appears to be the steady language of the English chancery for the last seventy years, and of all the compilers of the doctrine of the court, that a party may be admitted to show, by parol proof, a mistake, as well as fraud, in the execution of a deed or other writing.' And such is the settled law of this court. Graves v. Boston Mar. Ins. Co., 2 Cr. 443; Insurance Co. v. Wilkenson, 13 Wall. 231; Bradford v. Union Bank, 13 How. 66; Hearne v. Marine Insurance Co., 20 Wall. 490, 496. It would be a serious defect in the jurisdiction of courts of equity if they did not have the power to grant relief against mutual mistakes or fraud in the execution of written instruments. Of course parol proof in all such cases is to be received with great caution, and where the mistake is denied, should never be made the foundation of a decree, variant from the written contract, except it be of the clearest and most satisfactory character. Nor should relief be granted where the party seeking it has unreasonably delayed application for redress, or where the circumstances raise the presumption that he acquiesced in the written agreement, after becoming aware of the mistake. Hence, in Graves v. Boston Mar. Ins. Co., 2 Cranch, 419, this court declined to grant relief against an alleged mistake in the execution of a policy, partly because the plaintiff's agent had possession of the policy long enough to ascertain its contents, and retained it several months before alleging any mistake in its reduction to writing. But no such state of case exists here. The policy in question was retained for Keith by the insurance agents. It was not surrendered to him, and he did not see it until after the loss happened. Immediately upon being advised by his attorney that the policy as written did not cover the interest of the firm in the cotton, but only his individual interest, Keith promptly avowed the mistake, and asked that the policy be corrected in conformity with the original agreement. There was no such acceptance by him of the written policy as would justify the inference that he had waived any rights existing under the original agreement, or had conceded that instrument to be a correct statement of the contract of insurance. It may be said that the mistake made out was a mistake of law, and, therefore, not reformable in equity. It was said in Hunt v. Rousmanier, 1 Pet, 15, to be the gener al rule that a mistake of law is not a ground for reforming a deed founded on such mistake, and that the exceptions to the rule were not only few in number, but had something peculiar in their character. The chief justice, however, was careful in that case to say, that it was not the intention of the court to lay down that there may not be cases in which a court of equity will relieve against a plain mistake, arising from ignorance of law.' He said that he had found no case in the books in which it has been decided that a plain and acknowledged mistake in law was beyond the reach of equity. In 1 Story Eq. Jurisprudence, sec. 138, e and f (Redfield's edition), the author, after stating certain qualifications to be observed in granting relief upon the ground of mistake of law, says that