CHAPTER IV. CONCURRENT JURISDICTION. ACCIDENT. 1. WHAT SUBJECTS EMBRACED BY THE CONCURRENT JURISDICTION OF EQUITY. WHAT IS ACCIDENT, AND WHEN IT ENTITLES A PARTY TO RELIEF. 2. 3. 1. What subjects are embraced under the Concurrent Jurisdiction of Equity? This branch of Equity Jurisdiction is that, which is of the greatest extent, and most familiar occurrence in practice. It embraces two classes of cases: First, those in which a simple judgment for plaintiff or defendant, such as a Court of Law can render, would not answer the full ends of justice, and in which the interposition of Equity is necessary to adjust, by a comprehensive decree, conflicting equities and complicated interests; and, second, those in which the specific relief that is wanted, can only be obtained by the peculiar processes and powers of a Court of Equity. Under the former class are included Accident, Mistake, Fraud, Account, Administration, Legacies, Confusion of Boundaries, Dower, Marshalling of Securities, Partition, Partnership, Rent. In the latter, Discovery where relief is sought as an incident, Cancellation and Delivery of Instruments, Specific Performance, Compensation and Damages, Interpleader, Bills Quia Timet, Bills of Peace, and Injunctions. 2. What is an accident, and when will it entitle a party to relief in Equity? By accident is intended, not merely inevitable casualty, or the act of Providence, or irresistible force, but such unforeseen events, misfortunes, losses, acts, or omissions, as are not the result of any negligence or misconduct in the party. Courts of Equity will relieve in cases of accident, where a party would thereby be deprived of a clear right, or subjected to an unjustifiable loss; provided, no adequate remedy is afforded by the Courts of Law, and the person seeking relief possesses a superior Equity to the person from whom the relief is sought. It must be observed, that no relief will be afforded, where the accident is in any degree owing, to the negligence or fault of the suffering party; nor where his claim rested in mere expectancy, as where a testator was prevented by accident, from making his will in favor of a particular person; nor where the person from whom relief is sought, is entitled to equal protection, as in the case of a bona fide purchaser for a valuable consideration, without 1 Jeremy defines Accident to be "an occurrence in relation to a contract, which was not anticipated by the parties, when the same was entered into, and which gives an undue advantage to one of them, over the other, in a Court of Law." Judge Story points out the inaccuracy of this definition, in confining accident to matters of contract. His own definition seems, however, still more imperfect. Courts of Equity do not consider every unforseen event, which is not the result of negligence or misconduct, as an accident. It must be attended with undue loss, to the innocent person. Perhaps accident, as a ground of equitable jurisdiction, may be more completely defined as any occurrence, which would subject a party to an undue loss, not arising from his own negligence, or misconduct. notice, or an heir, against whom it is attempted to establish an imperfect will. 3. What are the cases of most common occurrence, comprehended under the first class of accidents, or those which would deprive a party of some clear right? First. Where a party has lost a bond, negotiable note, or other written instrument, evidencing his right, Courts of Equity will grant relief, on clear proof of its execution and contents.1 Although this rule has been abandoned at law, wherever a deed has been lost, or destroyed by time or accident, that circumstance does, in no degree, impair the jurisdiction of Equity. Indeed, it may be maintained, on a distinct consideration, viz. the incompetency of a Court of Law to require from the plaintiff, a suitable bond of indemnity to the obligor, against any future claims which may be made, in case the security should be thereafter found. It is upon that ground, Courts of Equity relieve against the loss of a negotiable instrument, of which, profert was never required at law. The maker of a note, or acceptor of a bill, which was lost, even after maturity, has a right to such a bond of indemnity; because according to the custom of merchants, he is entitled to the possession of the paper, as a voucher for its payment, and from the extreme inconvenience to which he might be subjected, if compelled to prove its loss, in a suit by another person as holder. In the case of unsealed instruments, which are not negotiable, the jurisdiction has been greatly questioned, as the assignee of such instrument would be affected by all the equities of the original parties. The same reasons, however, exist to sustain the jurisdiction in this case, as the difficulty and expense of proving these equities, after a considerable lapse of time, entitle the party to a bond of indemnity. Second. Where a party has been in the possession and exercise of a right over property, for a length of time, and is unable to produce any evidence to sustain it, there, a Court of Equity will infer his title, on the strength of the presumption arising from A Court of Equity will not charge a surety farther than he is bound at law; but if he cannot be charged there, in consequence of a loss of the instrument by the creditor, through accident or fraud of the obligors, Equity will give relief. 1 Call., 414; 6 Leigh., 478; 9 Vesey, 464. possession, and give him relief. Thus, where a rent had been paid for a long time, a right was presumed in Equity, although no instrument could be adduced to establish it. Third. Where a party, upon the transfer of a promissory note, or bill of exchange, is prevented by accident, from endorsing, it, there the transaction amounts to an equitable assignment, and a Court of Equity will clothe it with legal effect, by compelling the party, or, in case of his death, his representatives, to endorse the paper, and consummates the original intention. Fourth. Of a similar nature, is that very large class of cases, in which a trust, or a power coupled with a trust, or in the nature of a trust, fails of execution by reason of casualty, or accident. The trustee in such a case is invested with no discretion, whether he will exercise the trust or not, it being conferred upon him, not as a mere power, but as a duty, which he ought to fulfil; and a Court of Equity will not permit his negligence, accident, or other circumstances, to frustrate the intentions of the donor, and disappoint the objects of his bounty. 4. What are the most usual cases, occurring under the second class of accidents, or those which would subject a party to an unjustifiable loss?1 First. Where the obligor of a bond secured by a penalty, fails through accident, to pay it at the appointed day, a Court of Equity will prevent the obligee from recovering the penalty, if an offer of full indemnity is tendered by the obligor. Second. Where an executor has paid debts or legacies in full confidence, that the assets will prove sufficient for all purposes, and it turns out otherwise, from some inevitable casualty or unexpected occurrence, if the transaction has been attended with no negligence or misconduct on his part, a Court of Equity will relieve him from loss; although, according to the weight of authority, he would be liable for a devastavit at law. Third. Where a revolution or an act of Parliament would subject a party to an undue loss, it will be treated as an accident, against which Equity will relieve. Thus, where a will directs 1 In this connection it may be stated, that where a party is prevented by accident, from making a defence to a suit at law, Equity will relieve him. Vide., 2 Henn and Mun., 10; 7 Porter 159, and chapter 23d of this volume. an annuity to be secured by public stock, and an investment is accordingly made, which afterwards proves insufficient, by reason of an act of Parliament reducing the stock, a Court of Equity will decree the deficiency to be made up by the residuary legatees. Fourth. Where the perfect execution of a mere power, created by private parties, is prevented by accident, as if the prescribed witnesses are sent abroad by government, and cannot be obtained, a Court of Equity will grant relief; if the defect does not enter into the very essence or substance of the power. The rule, however does not apply to the non-execution of a power;1 nor in favor of all persons; but only of those entitled in a moral point of view to the peculiar consideration of Equity; such as purchasers, creditors, a wife, a child, or charity; nor where there are opposing equities on the other side; nor where the power is created by statute, and the prescribed formalities are a part of its apparent policy. 5. Where a party has entered into a positive contract or obligation, which he is prevented from fulfiling, or of the benefit of which he is deprived, by accident, wi!l Equity relieve ?2 1 This distinction between the non-execntion of a power, and its defective execution, has been frequently assailed as inconsistent, and resting on no sound principle. It is defended by Judge Story, on the ground, that to relieve against the non-execution of a power, would defeat the intentions of the donor, by depriving the donee of the discretion with which he was invested, but to aid its imperfect execution is to carry those intentions into effect. It is obvious, however, that this reasoning does not apply to a case, where the donee has determined to execute a power, and is prevented by accident. 2 The doctrine on this subject was carried very far in the case of Ross vs. Overton, which occurred in Virginia, 3 Call., 309, 2 Henn and Mun., 408. A tenant leased a mill, covenanting to keep the same in repair. In consequence of a freshet, in James River, it was entirely demolished and carried away by ice. Mr. Madison, Judges Tazewell and Jones, who were chosen arbitrators by the parties, decided that the tenant was bound to rebuild. The Court of Appeals, on two occasions, refused to interfere with this decision, professing to be governed by the well settled principle, that an award should not be disturbed, although the arbitrators committed an error in a doubtful point, yet inclining to the opinion, that the law of the case was correctly decided. Judge Tucker, |