in respect to the logs delivered between August 14 and October 1, 1897, as the bill explicitly avers; that the bill alleges the exact quantity of feet of logs delivered; that it alleges the payment of $7.25 per thousand, board measure, for all logs delivered between May 31 and August 14, 1897, the custom of the market as to the market price of logs, and the basis of $7 per thousand for logs averaging three logs per thousand; and that the bill alleges the items in dollars and cents, and the aggregate difference to be $4,553.90. The appellant further contends that the bill alleges facts establishing beyond the possibility of denial that the appellant exhausted in the trial of the action at law every means known to procedure to have and obtain the set-off of $4,553.90, and that the failure of obtaining such set-off was in no way attributable to the want of care, diligence, and skill on the part of the appellant or of its counsel. It contends that the demurrer admits all of these facts, and that the only question to be considered is, upon such admitted facts, do they establish an equity or right in the appellant to have the mistake corrected, and the set-off allowed as a credit on the verdict of the jury? which is the relief sought by the bill.

In Insurance Co. v. Hodgson, 11 U. Š. 332, 3 L. Ed. 362, Chief Justice Marshall said:

"Without attempting to draw any precise line to which courts of equity will advance, and which they cannot pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery. * Being capable of imposing its own terms on the party to whom it grants relief, there may be cases in which its relief ought to be extended to a person who might have defended, but has omitted to defend himself at law. Such cases, however, do not frequently occur. The equity of the applicant must be free from doubt. The judgment must be one of which it would be against conscience for the person who has obtained it to avail himself."

The case of Leggett v. Humphreys, 62 U. S. 66, 16 L. Ed. 50, is stated in the syllabus substantially as follows: There was a suit brought in the circuit court of the United States for the Southern district of Mississippi against a sheriff and his sureties upon the sheriff's official bond, in which judgment was given for the defendant. Being brought to the supreme court by writ of error, the judgment was reversed, and a mandate went down, directing the circuit court to enter judgment for the plaintiffs. 2 How. 28, 11 L. Ed. 159. While the suit was pending in the supreme court, judgment against the sheriff and his sureties was given in a state court, and execution was issued against one of the sureties, by means of which his property was sold, and the amount of the penalty of the bond collected and paid over. When the mandate of the supreme court went down, the circuit court entered judgment against the surety, who filed his bill in equity for relief. This suit also was brought up to the supreme court, who decided that the complainant was entitled to relief. 9 How. 297, 13 L. Ed. 145. Further proceedings in the case of Leggett v. Humphreys rendered it necessary for the supreme court to decide (1) that the obligation of the surety is strictissimi juris, and he cannot be called

upon to pay more than the penalty of his bond; (2) that as he was not permitted to plead puis darrein continuance, the satisfaction of the penalty of his bond, etc., he is entitled to relief in equity.

In Metcalf v. Williams, 104 U. S. 93, 26 L. Ed. 665, the circumstances on which the bill relied for setting aside a judgment below were that the complainant did not owe the money, and had made arrangement to have the claim properly litigated. The course of the proceeding is stated in the opinion of the court, showing the appearance of counsel at the term of court to which counsel had been advised it would be tried, for the purpose of trying the case, and he was informed that no plea had been entered on the record at Richmond, and the case was not on the docket for trial. Being taken by surprise, he moved the court to reinstate the cause on the docket. The judge, doubting his authority to do this, refused the motion. At the hearing the demurrer to the bill was overruled, and a decree was rendered for the complainant, on the ground that he was not personally bound by the check; in other words, that it was not his check, but the check of the corporation of which he was an officer, on which the judgment at law was given. In considering whether sufficient cause was shown in the bill for setting aside the judgment, it was said in the opinion:

"It is manifest that the judgment was a surprise upon complainant. After what passed in the court at Richmond, his counsel had a right to suppose that the cause would be tried in the ensuing term at Alexandria. The practice in Virginia as to entering pleas of general issue on the record sufficiently accounts for the omission to file a formal plea. Had not the term passed by. the district judge would undoubtedly have set aside the judgment and reinstated the cause on the docket for trial. If, as he supposed, the passage of the term deprived him of power to do this, it became a proper case for equitable interference by bill. When a party has been deprived of his right by fraud, accident, or mistake, and has no remedy at law, a court of equity will grant relief. Perhaps, in view of the equitable control over their own judgments which courts of law have assumed in modern times, the judg ment might have been set aside, on motion, for the cause set forth in the bill; but, if this were true, the remedy in equity would still be open; and the fact that the court declined to exercise the power upon motion rendered the resort to a bill necessary and proper. Formerly bills in equity were constantly filed to obtain new trials in actions at law,-a practice which still obtains in Kentucky, and perhaps in some other jurisdictions; but the firmly settled practice by which courts of law entertain motions for new trial, and the dislike of one court unnecessarily to interfere with proceedings in another, has caused an almost total disuse of that jurisdiction. Courts of equity, however, still entertain bills to set aside judgments obtained by fraud, accident, or mistake."

In the case of Hamburg-Bremen Fire Ins. Co. v. Pelzer Mfg. Co., 22 C. C. A. 283, 76 Fed. 479, the foreman of the jury, in announcing the verdict, had omitted by mistake one of the items which the jury had allowed, and the mistake was not discovered until it was beyond the general power of the court to disturb the judgment. On appeal for relief the court held that equity had jurisdiction to grant relief. In this case several actions upon policies of insurance were consolidated. Each suit was upon a single policy, with the exception of one, which was upon two separate policies. The jury agreed upon a verdict awarding to the plaintiff the full amount claimed, but the foreman, in announcing the verdict, for which purpose other business of the court was interrupted, omitted therefrom the amount of one of the policies

in the last-mentioned suit. An appeal was taken on matters of law only, and the judgment was affirmed. The mistake was not discovered until nearly three years afterwards, and a bill in equity was immediately filed to correct the same, on which, the proper issue joined, the court held that there was no such laches as would prevent relief.

Mr. Pomeroy, in his Equity Jurisprudence (section 824), says: "Accident is one of the oldest heads of equity jurisdiction. Its existence and exercise involve two essential requisites. The first and principal requisite is that, by the event not expected nor foreseen, one party, A., had, without fault and undesignedly, undergone some legal loss or liability, and the other party, B., has acquired a corresponding legal right, which it is contrary to good conscience for him to retain and enforce against A."

In reference to "mistake," recognizing the difficulty of formulating a definition, contrasting it with "accident," and considering its essential prerequisites, he concludes:

"Mistake, therefore, within the meaning of equity, and as the occasion of jurisdiction, is an erroneous mental condition, conception, or conviction, induced by ignorance, misapprehension, or misunderstanding of the truth, but without negligence, and resulting in some act or omission done or suffered erroneously by one or both the parties to a transaction, but without its erroneous character being intended or known at the time." Id. § 839.

Mr. Freeman, in his work on Judgments (section 500a), says: "In treating of the vacation of judgments upon motion, we considered the fact that a judgment was procured by mistake, accident, or surprise as a ground of relief therefrom. Substantially the same grounds of relief may be urged with success in equity, except when refused on the ground that an adequate remedy existed at law, and no reason is shown why it was not pursued. Mistakes of fact, whether made by the court or by one of the parties, have been successfully employed as grounds for obtaining the interposition of courts of equity, and securing the relief of the party injured by the mistake. It seems to be well established by the authorities that a mistake in calculating the amount due, by which the judgment was entered for a wrong sum, may be corrected in equity. An error in computation is not necessarily attributable to negligence, for the most careful and expert calculators sometimes make mistakes. So where a judgment is occasioned by the mistake of the judge, the party against whom it was entered may have relief in equity."

Where the defendant in an action at law has a good defense on the merits, which he is prevented by accident from setting up or making available, without any negligence or inattention on his part, and a judgment is recovered against him, equity will exercise its jurisdiction on his behalf. Pom. Eq. Jur. § 836. We quote also from Id. § 1364:

"Where the defendant in the action, having a valid legal defense on the merits, was prevented in any manner from maintaining it by fraud, mistake, or accident, and there had been no negligence, laches, or other fault on his part or on the part of his agents, then a court of equity will interfere at his suit, and restrain proceedings on the judgment, which cannot be conscientiously enforced. From the very nature of the case, this interference takes place after the judgment, and not while the action at law is pending."

Counsel for the appellant contends that the loss of the set-off which he now seeks to establish, having been duly pleaded and proved, was, in the eye of equity, an "accident" to the plaintiff here, within the accepted definition of that term; that it was unforeseen, unexpected, and that no human foresight or diligence on plaintiff's part could have ar

rested it; that it was a mistake by the trial judge, but an accident to the plaintiff. We have referred at some length to the text of standard authors, rather than review or cite the great number of reported cases which illustrate the doctrine, because the quoted texts express the settled result of the adjudged cases, and because the cases, in the present state of law literature, may readily be found by any interested inquirer. We conclude that the case stated in the bill is clearly within the sound doctrine as expressed and applied by courts of last resort, and that the circuit court erred in sustaining the demurrer submitted by the appellee, for which error the case must be reversed.

We do not deem it necessary to pass upon the defenses which the bill itself anticipates, and which it seeks to avoid by replying matter in avoidance in advance.

The decree of the circuit court is reversed, and the cause is remanded to that court, with direction to overrule the demurrer.

SHELBY, Circuit Judge (dissenting). I. The unusual purpose of this bill in equity is to correct a mistake alleged to have been made by a United States circuit court, in a case at law, in an order refusing to grant a motion for a new trial, and to correct an error made by the judge in his instructions to the jury; the correction of these mistakes to result in reducing the amount of the verdict and judgment. The facts alleged in the bill are sufficiently stated in the majority opinion to show the main question involved. No reference, however, is made to the judgments and opinions of this court which are incidentally the subject of the bill, as shown by its averments and exhibits. It is necessary to supply this omission by briefly stating that part of the

case:

The Atlantic Lumber Company sued the L. Bucki & Son Lumber Company in the circuit court of the United States for the Northern district of Florida in two actions at law, for sums amounting, in the aggregate, to more than $80,000, for breach of contract. These cases were consolidated and tried as one case. Verdict and judgment were had for the Atlantic Lumber Company for $8,988.37. The Atlantic Company brought the case on error to this court. The case was affirmed, this court holding that the circuit court had properly construed the contract sued on. 35 C. C. A. 59, 92 Fed. 864. On the trial the Bucki Company reserved a bill of exceptions, and sued out a cross writ of error. In trying the cross writ of error, this court said:

"We are of opinion that no error has been committed prejudicial to either party, and that justice will be awarded either by the affirmance of the judgment on the cross writ of error, or by its dismissal."

The writ was dismissed for reasons given, and on authorities cited. 35 C. C. A. 590, 93 Fed. 765. An application was made by the Bucki Company to the supreme court for the writ of certiorari, which was denied. 175 U. S. 724, 20 Sup. Ct. 1021, 44 L. Ed. 337. After the verdict had been rendered, and before the writs of error had been sued out, the Bucki Company moved for a new trial, and on that motion the circuit court made this order:

"This cause coming on to be heard upon a motion for a new trial, and having been fully heard and considered, and it appearing that possibly an

error was committed in instructing the jury that payments and settlements had between the parties for the logs up to the 15th of August, 1897, was final, although it might appear that the size of the logs for that time was smaller than the average guarantied, and that, according to a custom of the market, the price of such logs in the market, on account of such smaller size. was $583.07 less than the amount paid. It is ordered that, upon the remitting of said sum of $583.07 from said judgment by the plaintiff, said motion for a new trial be denied."

The Atlantic Company reduced the judgment by the amount indicated in the order, and a new trial was denied. The gravamen of the bill is that the circuit court erred in requiring a remittitur of $583.07; that it should have required a remittitur of $4,553.90. This is the construction placed on the bill by the learned counsel for the appellant. They say in their brief:

"The specific ground for relief in equity is a mistake of fact by the trial judge in the calculation of the amount of a remittitur ordered on a motion for a new trial in said common-law action. * The central point in

this case is that, on the motion for a new trial in the action at law, the court, in calculating the amount to be remitted from the verdict, upon the undisputed evidence, by mistake ordered too small [an] amount to be remitted, by some $4,000."

The purpose of the bill is to have a decree now entered reducing the judgment. If the circuit court had suggested so large a reduction as is now claimed, the Atlantic Company could, and probably would, have declined to allow it. The result of its refusal to allow the reduction suggested by the court would have been a new trial. It is not now proposed to have a new trial. The bill seeks to have the Bucki Company's damages-pleaded as set-off in the law court-allowed in chancery, contrary to the jury's verdict, and without submitting the question to another jury. The circuit court had no power to do this when it passed on the motion for a new trial. The extent of its power was to grant or refuse a new trial. If the parties do not consent, the court, on motion, cannot reduce the verdict and judgment. It can only grant a new trial, and have the matter again submitted to a jury. Kennon v. Gilmer, 131 U. S. 22, 9 Sup. Ct. 696, 33 L. Ed. 110. If the circuit court had made a plain order overruling the motion for a new trial, it would have been acting within its discretion, and its ruling. would not have been subject to review on error, and certainly not by bill in equity. The Atlantic Company remitted $583.07, on the suggestion of the court, to avoid a second trial. Did that act open the case to an equitable investigation to see if the reduction ought not to have been $4.553.90? If no reduction had been made, the verdict. and judgment would have been unassailable in equity on account of the court's order on the motion. Is it made vulnerable by acceding to the suggestion of the trial judge that there "was possibly" an excess in the verdict of $583.07? The supreme court has distinctly held that it is in the discretion of the circuit court, not open to review on error, to overrule a motion for a new trial when the plaintiff, with leave of the court, has remitted a part of the verdict. Cattle Co. v. Mann, 130 U. S. 69, 75, 9 Sup. Ct. 458, 32 L. Ed. 854.

2. It is probably conceded that the bill in equity to grant a new trial at law has become obsolete (3 Pom. Eq. Jur. § 1365); for the claim here is that the bill lies, not to grant a new trial, but to change the