CHAP. I.

ACCIDENT AND MISTAKE.

Accident.

IT is not under the very extended signification of the term Accident, before alluded to, that the subject is now intended to be treated of, but only according to its ordinary and more restrained sense.

The Jurisdiction of the Chancellor in cases of Accidents has been long established (b): they appear to have been relieved against in the reign of Henry VII. (c); and from St. Germain's Book, Doctor and Student, as well as from Sir George Cary's Reports (d), it appears, they continued to be relieved in the succeeding reign, and now, certainly, they form an acknowledged branch of Equity Relief.

Where an instrument on which a title is founded, is lost, a Court of Equity will interfere to supply the defect occasioned by such accident. As where a Mortgagee had the Mortgage Deeds stolen from him, on a bill to foreclose, an account was directed and an inquiry, what was become of the Title Deeds (e); and on a bill to redeem under the same circumstances, a similar inquiry was directed; and the Master having by his report stated the loss of part of the Title Deeds, a decree was made that the defendants, on

(b) East India Company v. Boddam, 9 Ves. 466.

(c) Pasch. 7. Hen. VII. 12

(d) P. 2.

(e) Stokoe v. Robson, 3 Ves & Bea. 54.

payment to them of what was due on the Mortgage, should re-convey and deliver up the remaining Title Deeds, &c. in their custody (f).

So also, where a Bond is lost, (except, perhaps, a voluntary Bond) (g), relief will be given in Equity (h); but no relief is given there upon a lost note (i): and the reason is, that at law the party could not recover without a profert, and giving oyer of the bond (k); but profert and oyer was not necessary to recover at law upon a lost note (1): proving of the contents being sufficient, and nothing standing in the plaintiff's way. And though Courts of Law, in the case of a lost Bond have dispensed with a profert and oyer (m), a doctrine, which when first broached seems to have startled Lord Hardwicke (n), and has excited much surprize in subsequent Judges (0); yet Courts of Equity having once had jurisdiction,

(f) Smith v. Bicknell, mentioned in note to the last-cited

case.

(g) Underwood v. Slaney, 1 Ch. Cas. 77.

(h) Lat. 24. Toulmin v. Price, 5 Ves. 235.

(i) Mossop v. Eadon, 16 Ves. 430.; and see Glynn v. Bank of England, 2 Ves. 41.; but see what is said in Toulmin v. Price, 5 Ves. 240, and Walmesley and Child, 1 Ves. 341. By 9 and 10 Wm. 3. c. 17. s. 3, relief is given at law in the case of a lost Bill of Exchange; and that seems the only course to be taken in such case. See Divis v. Dodd, 4 Taunt. 603. An express promise to pay the contents of a lost Bill of Exchange, if made without some new considera

(k) See 1 Ves. 393, and 2 Ves. 41.

(1) Walmesley v. Child, 1 Ves. 245, and see Glynn v. Bank of England, 2 Ves. 41, and Snellgrove v. Bailey, 3 Atk. 214.

(m) See Read v. Brookman, 3 T. R. 151. Hendy v. Stephenson, 10 East 55. See also, as to a burnt bond, Routledge v. Burrell, 1 H. Black. 254. Totty v. Nesbit, 3 T. R. 153. In Hendy v. Stephenson, 10 East 60, the case of Read v. Brookman seems rather shaken.

(n) See Whitfield v. Faussett, 1 Ves. 389, &c. and what he had previously said in 2 Atk. 61.

(0) See what is said ex parte Greenway, 6 Ves. 812, 813. and in East India Company v.

they still insist on retaining it, though the original ground of the Jurisdiction, the inability to recover at Law, no longer exists (p).

A Court of Equity will not only give relief against the Principal, where a bond is lost (q), burnt, or cancelled, by accident or mistake, but will also set it up against a surety in such Bond (r); and this, though the Principal be out of the Jurisdiction of the Court (s). So, where a Rent-charge is granted by deed, and the deed happens to be lost, a copy cannot be read in evidence at law; because the party must declare with a profert, as the defendant is entitled to oyer of the original; so that the plaintiff must either set up a prescriptive title to the Rent, from a constant and uninterrupted payment, or he must bring a bill to be relieved against the accident of the original's being lost (t).

The Court, however, to prevent fraud, has in cases of lost securities, prescribed conditions on which they administer relief.

If a Deed or Instrument, upon which the demand arises, is lost, and only a discovery is sought, an affidavit of the loss is unnecessary (u); for it cannot

(p) See what Lord Thurlow says in Atkinson and Leonard, 3 Bro. 224; and see East India Company v. Boddam, 9 Ves. 464, &c. Bromley v. Holland, 7 Ves. 19. Toulmin v. Price, 5 Ves. 239.

(q) East India Company v. Boddam, 9 Ves. 464, the case of a lost bond; see Pickering v. Keeling, 1 Ch. Rep. 78. Bonnam V: Newcombe, Ventr. 365. Lee v. Sir Robert Henley, 1 Vern. 37.

(r) Skip v. Huey, 3 Atk.

93, the case of a burnt bond; and see 1 Cha. Cas. 77.

(s) East India Co. v. Boddam, 9 Ves. 464. This and the preceding case answer the query put in 1 Fonbl. Eqy. 41

n. w.

(t) 2 Atk. 61.

(u) Whitworth and Golding, 1 Eq. Abr. 14. S. C. 2 P. Wms. p. 541. Godfrey v. Turner, 1 Vern. 247. 1 Ch. Cas. 11. Anon. 1 Vern. 180. Prec. Ch. 536; the case contra, Vern. 59, seems a mistake.

be supposed a man would bring a Bill only for the discovery of a deed he was possessed of (x), and the expense of which discovery he must pay (y); but if relief is prayed beyond the discovery, e. g. to have payment of the debt (≈), or the profits of land under the deed (a), an affidavit of the loss must be annexed; and the want of it would be a ground of demurrer (b); for a bare suggestion in a Bill is not sufficient to support the Jurisdiction, the Court requiring a degree of proof of the circumstance on which it is sought to transfer the Jurisdiction from a Court of Common Law to a Court of Equity (c). If the deed lost concerns the title of lands, and possession is prayed to be established, such affidavit must be annexed. So, on the loss of a Bond, and a Bill filed, in consequence, to be paid the amount, a Bill of Discovery is not sufficient; the Bill should be also for relief to be paid the money thereon; and an affidavit must be annexed (d). In cases, however, of this description, a Trial at Law will be directed if the Defendant insists upon it (e).

By the 14 George II. c. 20, s. 5, a Recovery will after twenty years be effectual, though the Deed or Deeds for making the Tenant to the Præcipe should be lost, or not appear; if it appears there was a Tenant

(x) Anon. 1 Chan. Cas. 11. (3) See post, p.

(2) 1 Vern. 247. 1 Cha. Cas. 231. Whitchurch v. Golding, 2 P. Wms. 541.

(a) Ib. and see also on this subject Redesd. Tr. Pl. p. 100, 3rd Edit. and Moseley, 192, there cited.

(b) Nicholson v. Pattison, 1

see Redesd. Tr. Pl. 100, 3rd Edit.

(c) Whitworth v. Golding, 2 P. Wms. 541.

(d) Walmesley v. Child, 1 Ves. 344, 5. Teresey v. Gory, Finch 301. Anon. 2 Freem. 71.

(e) Clavering v. Clavering,

to the Writ, and that the persons joining in the Recovery had a sufficient estate and power to suffer the Recovery; and where a Lease and Release were made to create a Tenant to the præcipe in a recovery, and the Lease was lost, it was held to be a case within the relief given by the Act (ƒ).

It appears to be upon the principle of relieving against accidents by loss of deeds, that grants are, in many cases, presumed or supplied. Where, therefore, a person has been in possession for a great length of time without interruption, Equity will supply all those circumstances, or formal ceremonies, which the Law deems necessary to the operation of the original conveyance; as Livery, a Surrender (g), &c. and will not allow such possession to be disturbed (h). Where rent has been paid twenty years Equity will presume a grant (¿). And where a Common has been inclosed for thirty years, Equity will presume the Inclosure to have been with the consent of all persons interested, and will not allow it to be thrown open (k).

And where a man is entitled to a rent out of lands, as Chief Rents (1), or Quit Rents (m), and from length of time the remedy at law is lost, or become

(f) Holmes v. Ailsbie, 1 Madd. Rep. 351.

(g) Lyford v. Coward, 1 Vern. 195. (h) Ibid.

Steward v. Bridger, 2 Vern. 516.

(k) Sitway v. Compton, 1 Vern. 32.

(1) Duke of Bridgewater v. Sir Francis Edwards, 6 Bro.

P. C. 368. Tomlins' Ed. and see Eton College v. Beauchamp, 1 Ch. Cas. 121. 1 Eq. Abr. 32 (B) and 364.

(m) Holder v. Chamburgh, 3 P. Wms. 257; but see North v Earl of Stafford, 3 P. Wms. 148. Duke of Leeds against Lord Radnor, 2 Bro. C. C. 340. and 518.