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cuse, his negligence must be regarded as established. negligence per se, and to be so declared by the court; The excuse offered in this case is not satisfactory. The that it is nyt so important to the railroad companies evidence so overwhelmingly preponderates in favor of as to the travelling public; that the omission of this the fact that the bell was rung and the whistle sounded duty often results in collisions by which the that we cannot regard the alleged negligence of the lives of hundreds of passengers are lost; and that railroad company in these particulars as proved. But travellers should be taught that the performance of if we concede that this was a question of fact for the this duty is due, not only to themselves, but to jury, and that the court has no right to interfere with others also. their finding, still the iuference is irresistible that the In Railroad v. Crawford, 24 Ohio St. 631, the law deceased did not exercise that degree of vigilance upon this subject seems to us to be stated accurately. which the law requires, or he would have known of the It is there said that unquestionably ordinary prudence approach of the train without these signals. And if requires a person in the full enjoyment of his faculnot ignorant of its approach (which we believe to be ties, before attempting to pass over a known railroad the fact) then the relation of cause and effect between crossing, to use his faculties of hearing and seeing for the alleged negligence and the accident is wanting; the purpose of discovering and avoiding danger from and the verdict must be regarded as wrong upon tbat an approaching train; and that the omission to do so, ground. It is not enough to establish negligence and without a reasonable excuse therefor, is negligence, an accident. It must also be shown that the negli and will defeat an action to recover for an injury to gence was the cause of the accident. An omission to which such negligence contributed. ring the bell or sound the whistle could not have been In Dascomb v. Railroad, 27 Barb. 221, it is said in a the cause of the accident if the deceased had notice of case very similar to the one we are now consideri the approach of the train by other means. Our belief that when negligence is the issue, it must be a case of is that the deceased did have such notice; that he unmixed negligence; that this rule is important, salucould not have been so unobservant as to neither see tary in its effects, and should be maintained in its nor hear the approach of that train; and consequently purity; that the careless are thereby taught that if that the alleged negligence in omitting to ring the bell they sustain an injury to which their own nego or sound the whistle could not have been the cause of ligence has contributed, the law will afford them no the accident. But if he did not have such notice; if redress. he drove on to that crossing in total ignorance of tbe In Wilcox v. Railroad, 39 N. Y, 358 (a case in every approach of a train; then the conclusion seems to us essential particular like the one now under considerinevitable that he must have been exceedingly negli-ation), the court held that when one is killed in atgent in the use of his eyes and his ears. So that tempting to cross a railroad track within the limits of whichever view we take, the verdict is clearly wrong. a public highway, and at a public crossing, if it appear In the one case the want of the relation of cause that the deceased would have seen the approaching and effect invalidates it; in the other, contributory cars, in season to have avoided them, had he first negligence.

looked before attempting to cross, it is to be presumed Similar views are expressed and similar conclusiong that he did not look; ard that by omitting so plain sustained, even to those States in which it is held that and imperative a duty, he will be deemed to have been the burden of proof to show contributory negligence guilty of negligence, wbich precludes a recovery; that is on the defendant. A fortiori trey ought to prevail, in crossing a railroad track ordinary sense, prudence, where, as in this State, the burden of proof is not and capacity require a traveller to use his ears and upon the defendent to show contributory negligence, eyes so far as he has an opportunity to do so, and a but upon the party prosecuting to show the absence failure to do so is negligence sufficient to preclude a of it.

recovery for any injury he may receive, in case of acIn Railroad v. Heileman, 49 Penn. St. 60, the court cident; and that the negligence of the company in not held that the omission of a traveller when approach- ringing the bell or sounding the whistle is no excuse ing a railroad crossing to look and listen for approach for the traveller's neglect. After citing many authoring trains is negligence per se; not merely evidence of ities, Mr. Justice Miller said: The effect of the cases negligence, but negligence itself, and should be so de- cited is to sustain the principle, that where the negliclared by the court, and not submitted to the jury; gence of the party injured or killed contributes to that while it is true that what constitutes negligence produce the result, he cannot recover; and that the is generally a question of fact for the jury, it is not omission of the company to ring the bell or sound the always so; that when the law fixes the standard of whistle near the crossing of a highway does not reduty, an entire omission to perform it is not merely lieve the person who is about to pass over the high evidence of negligence to be submitted to a jury, it is way from the obligation of employing his sense of negligence itself, and should be so declared by the hearing and seeing, to ascertain whether a train is apcourt; that even on a common road, travellers must proaching. look out for the approach of other vehicles passing; Iu Railroad Co y. Houston, 95 U. S. 697, it was held that this is more necessary at railroad crossings, be- ibat the omission of the engineer in charge of a railcause movements upon a railroad are more rapid, and road train to sound its whistle or ring its bel] does not because the consequences of a collision are likely to be relieve a traveller from the necessity of ascertaining more disastrous; that precaution, looking out for dan- by other means whether or not a train is approaching; ger, is a duty imposed by law, and that to rush heed- that negligence of the employees of the company is no lessly on to a crossing over which the law allows en

excuse for negligence of the traveller; that the travelgines of fearful power to be propelled, without look- ler upon the highway is bound to listen and to look, ing and listening for a coming train, is not merely an before attempting to cross a railroad track, in order to imperfect performance of duty, it is an entire failure avoid an approaching train, and not to go carelessly of performance.

into a place of possible danger; that if he omits to And in Railroad v. Beale, 73 Penn. St. 504, Mr. Jus- look and listen, and walks thoughtlessly upon the tice Sharswood, in delivering the opinion of the court, track, or if looking and listening, he ascertains that a says that there never was a more important principle train is approaching, and instead of waitiug for it to settled than that which declares that the omission to

pass, undertakes to cross tbe track, and in either case look and listen for the approach of trains before at- receives an injury, he so far contributes to it as to detempting to cross a railroad track, is not merely evi- prive him of all remedy against the railroad company; dence of negligence to be submitted to a jury, but that if one chooses to take risks he must suffer the

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consequences; that they cannot be visited upon the the undivided half of said premises, according to the railroad company; that in such cases it would not be intention expressed in said limiting clause, alleging a error to instruct the jury peremptorily to returu a ver- mistake in the granting clause of said deed in that redict for the defendants.

spect. The respondent replied to said answer, deuyThe cases in which similar views are expressed are ing the allegations of said counter-claim, and alleging very numerous. But the soundness of the views ex- the estoppel of said appellants from setting up such pressed in the cases already cited is so self-evident, counter-claim by the former trial and judgment, and that we deem it unecessary to cite other cases to sup- that if there was such mistake in said deed, still the port them. It will be seen that it is not important to same should not be corrected, because Martin should be determine whether Dr. Pickard's negligence cousisted adjudged to have held the half of the estate so conin not ascertaining that a train was approaching, or in veyed by mistake to use of the plaintiff. knowingly attempting to cross in front of it. In To these issues the evidence was addressed. The either case it defeats a recovery. And in the latter findings of the court are mainly the history of the title case, for the further reason that it destroys the rela- to this tract of land, and only three findings of fact tion of cause and effect between the alleged negligence are necessary to be noticed in passing upon the quesof the defendants and the accident.

tions raised and so ably argued on this appeal: First, [Omitting minor point.]

that it was the opinion of Martin that he only acMotion sustained and the verdict set aside. quired, by the said sheriff's deed, the undivided onePeters, C. J., Danforth, Virgin and Libbey, JJ., cou

half of said premises conveyed to the respondent becurred.

fore, and held by it at the time of, said sale, and that

it was not his intention to convey any other iuterest MISTAKE REFORMATION OF DEED.

or estate to the respondent; second, that the mistake

of Martin in conveying to the respondent the whole of WISCONSIN SUPREME COURT, OCTOBER 14, 1884,

said tract, instead of only an undivided half thereof,

was a mistake of law, and not a mistake of fact; and GREEN BAY, ETC., CANAL Co. v. HEWITT.*

third, that if it was a mistake of fact, the deed The absolute owner of land conveyed it by deed, which after

ought not to be corrected in that respect, because it granting all his estate in the land, declared in a subse

placed the legal title of the whole tract where it bequent clause that the interest and title intended to be con

louged in equity. The counterclaim was therefore dis

missed on its merits.
veyed was only that acquired by virtue of a certain sher-
iff's deed, which was in fact an undivided one-half only.

The various exceptions to evidence and to the fiud-
All parties to the conveyance intended that it should em-

ings need not be specially noticed any further tban to brace such undivided one-half only,and supposed that the

say that they sufficiently raised the questions predeed was so drawn as to effectuate such intention.

sented by counsel. These questions will be disposed Held, that although the limitation of the grant was ineffect

of in their natural order: First, is the plaintiff estopual because inserted after and not in the granting clause,

ped by the former trial and judgment from setting up

a mistake in the deed and from asking its reformait was nevertheless conclusive as to the intention of the parties, and whether the mistake was one of law or of

tion? Second. Was there any mistake shown by the fact, the deed might be reformed to accord with such in

evidence, and if so, was it such a mistake as oan bo tention.

corrected in equity? Third. If so, had the respondent such an equitable interest in the undivided half of

the premises not intended to be conveyed by said The opinion states the facts.

deed, but which nevertheless was so conveyed thereby Moses Hooper, for respondent.

that the deed ought in equity to stand uncorrected, as D. S. Ordway and W. P. Lynde, for appellants.

conveying the legal title to the respondent as the party

eutitled in equity thereto, ex æquo et bono. ORTON, J. This is an action of ejectment, in which 1. As to the estoppel it may be well to see whether both parties claimed to hold the premises in dispute there is any thing in the counter-claim inconsistent under and from Morgan L. Martin, the plaintiff and re- with the defense relied upou on the former trial. The spondent, by his deed of May, 1873, aud the defendants answer was a general denial, aud the appellants relied and appellants by his deed of January, 1880. lu the upon the deed, as by its terms and effect, and its true deed to the respondent the grant was of the whole construction in reference to the subject-matter and tract, but thereinafter there was a clause which limited circumstances of its execution, conveying only an unthe grant to the interest and title acquired by said divided one-half of the premises, and insisted that the Martin, by virtue of a deed executed to him by one limitation clause thereiu had so modified the graut, Evarts, as sheriff of Outagamie county, dated Decem- and that the deed should be so construed, but by force ber 2, 1871, which clearly conveyed only an undivided of a technical rule of law that clause could not have half of said tract. In this case, reported in 55 Wis. such effect, and the deed oould not be so construed. 96; 8. C., 12 N. W. Rep. 382, it was held by this court In the counter-claim the appellant still insists that that such limiting clause is inconsistent with the such limitation clause shall have effect in equity as exgrant, and is nugatory, and that the grant must pre- pressing the intention of the parties, and that the vail. In the case as it thus stood the respondent grant should be so limited by a correction and reformrested upon that deed, in its terms, effect and con- ation of the deed, and that both parties believed, and struction, insisting that it conveyed the whole tract, were mistaken in believing, that the deed itself had and therefore the undivided half in dispute. The the legal effect of conveying only one-half of the premjudgment of the Circuit Court against the appellants ises, and they, the appellants, now ask that such muwas affirmed. Within the proper time the appellants tual mistake may be corrected. When the deed is remade application for the vacation of said judgment, formed as prayed, then it will have the precise effect and for a new trial under section 3092, Rev. Stat., and which the appellants insisted that it did have standing the judgment was vacated and a new trial was uncorrected on the former trial. Precisely the same granted.

The appellants thereupon amended their object was sought on both trials, which was that the answer, setting up an equitable counter-claim for the deed should have the effect to convey only the onereformation of said deed, so as to make it convey only halt on the first trial by the deed as it was, and ou the

last trial by the deed reformed. The maxim allegans *8. C., 21 Northwestern Reporter, 216,

APPEAL from Circuit Court, Outagamie county.

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contraria non est audiendus can scarcely apply to these recorery, and that the complaint should have been two defenses.

amended, setting up that the contract was void for that The respondent has not been prejudiced or its rights reason, and the plaintiff should have recovered the affected one way or the other by the appellant’s having money paid upon it, and reversed the judgment and on the first trial relied upon the deed itself as not con- granted a new trial. veying the whole premises, and has not been influ. Iu Steinbach v. Insurance Co., 77 N. Y. 498, there enoed in its action either in court or in pais by the ap. was a judgment against the plaintiff in his action on pellant so insisting. There was no judgment in the the policy which had been affirmed by the Supreme action when the new defense was interposed, as it bad Court of the United States, and was placed in bar of been vacated, and the action was to be tried as if it tbe suit to reform the policy. But here there is no had never been tried, and as an original action, and the judgment in the way. The case cited by the learned two defenses, one on the deed itself as not conveying counsel of the respondent (Washburn v. Insurance Co., the whole tract, and the other for the reformation of 114 Mass. 175) illustrates this principle fully. A bill in the deed if necessary to that effect. If there had been equity was pending to reform the policy, and the no trial or judgment in the case, there cau be no doubt plaintiff brought another suit upon the policy, alleg. that both of these defenses could be interposed to the iug compliance with its terms, and after a trial aud action. There has never been a trial or judgment, so judgment against him therein, he was held to have far as the present trial is concerned. The action is waived his right to prosecute further his bill. It may fully open to be tried de novo. If the Circuit Court be observed that he was allowed to prosecute his sechad the discretion to allow such an amendment of the oud suit, notwithstanding the pendency of the first. answer, and of that we have uo doubt, it follows that it was the judgment that stood in his way, and such the answer may be proved. The amendment was made was the case of Sanger v. Wood, 3 Johns. Ch. 416, cited without objection, and issue taken upon it by a repli- by the learved counsel. The plaintiff took judgment cation. The first answer admitted nothing favorable on the contract, and afterward sought to set aside the to the respondent, nor was any proof offered under it contract on the ground of fraud. Without any disrethat placed the respondent in any more favorable posi- spect to the learned counsel, it may be said that none tion than it oocupied before.

of the authorities cited by him are in the way of allow. Mr. Bigelow, in his work on Estoppel, 604, says, in ing proof of this counter-claim. The rights of no the text: “When then no wrong would be done to the one are affected, and much less fixed and determined, court or to other parties to a cause by permitting a by the first trial and judgment, since such judgment is change of position, a change should in principle, and vacated and a new trial granted. The authorities cited will in fact, be allowed. Thus where a party has given are not applicable to such a case, and the doctrine of notice of appeal by mistake to a particular court, estoppel is misapplied. Cunningham v. Milwaukee, 13 when the appeal should have been made to another Wis. 120, does uot bear ou this question. The second or court, and has discovered his mistake before any step new trial in ejectment, under the statute, must of has been taken by others in consequence, he may at course be ou the same cause of action. That cannot will correct himself, but only upon the footing that no be changed by amendment so as to make another prejudice is done to others. In Favill v. Roberts, cause of action in any case or at any stage of the pro50 N. Y. 222, the plaintiff brought an action for the ceeding, but that does not imply that the answer may purpose of procuring title to a farm which he had pur- not be amended and other defenses interposed, alchased of the executor of John Roberts, of whom the though inconsistent. defendants were heirs. The laud had been sold and 2. Was there any mistake shown by the evidence, paid for under an order of court, and improvements and if so, was it such as may be corrected in equity? had been made by the plaintiff, when it was discovered We are eutirely satisfied that there was a mistake in that the court had no authority to grant the order for drawing the deed. The mistake was in not limiting the conveyance of the land. The plaintiff now bought the grant to one undivided balf of the tract, by apt to enforce a remedy against the heirs at law, and to words in the granting clause of the deed, instead of compel a conveyance, ou the ground that the executor undertaking to so limit the grant by this independent acted with the consent and approbation of the heirs, clause thereinafter inserted. Both parties unquesand that they encouraged the sale. It was held that tionably understood and intended that the deed the plaintiff was entitled to his remedy." Bigelow should be a conveyance of only one-half, and both Estop. 595. Those two causes of action were far more parties supposed that it was so drawn. The evidence inconsistent than the two defenses in this case.

is overwhelming that both parties intended that the “The grantee of land conveyed by an intestate with conveyance should be made for only one-half. Nothintent to defraud his creditors is not estopped by taking else had ever been spoken of. Martin held the lien ing under the deed and acting upon it to object, as one of his judgment against a portion of the canal and of the creditors of the estate, that the deed was fraud- works, and this undivided one-half of this hydraulio ulent." Norton y. Norton, 5 Cush. 524.

tract, which belonged to the canal company. The A case in point is that of N. W. U. P. Co. v. Shaw, United States, through proper officers, refused to pay 37 Wis. 655. The company purchased from Shaw a the award until this incumbrance was removed. In quantity of wheat, to be delivered, and paid down the meantime Mr. Martin had this interest sold under upon it $1,000. Shaw failed to deliver the wheat, and execution, and bought it in and received the sheriff's the company brought suit upon the contract, and deed, which covered nominally the whole tract, but claimed – First, the $1,000; secondly, damages for the conveyed only the interest that the caval company had breach of the contract; and thirdly, damages for the in it, which was only one-half. It was the business of value of the use of a barge detained for the carriage of Mr. Stevens, on behalf of the company, to obtain this the wheat. On the trial the Circuit Court held that title from Mr. Martin. the contract was ultra vires and void, the company The United States government was only interested having no power to make such a contract for the pur- in having a clear title to the canal and works which it chase of wheat, it being a common carrier only, had bought of the canal company, but Mr. Martin and judgment was rendered for the defendant. On ap- wished to have his whole claim paid, and to convey the peal to this conrt is was held that the Circuit Court interest which he held by the sheriff's deed. It was properly decided to contract to be ultra vires and void; not contemplated that he should convey only his inbut that was no ground for defeating a recovery of the terest in the canal, and retain his interest in the by $1,000 paid upon it, but rather good ground for such draulic tract. It was one transaction, which embraced

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his whole interest as the purchaser under his execu- non excusat, and courts sometimes have struggled in
tion. The consideration be was to receive was for this, clear cases of mistake of law to make it, if possible, a
and this only. Martin deeded to the United States his mistake of mixed law and fact, in order to administer
interest in the canal acquired by that sale, and was to equitable relief. It may be said in this case that the
convey to the canal company his interest in the hy. parties knew the contents of this deed, and just where
draulic tract acquired by that sale. It is insisted by the limitation clause was placed in it; but they clearly
the learned counsel of the respondent that there was did not know that it was inserted in the wrong place.
no bargain or contract to this effect shown by the evi. They may have depended and relied upon their coun-
dence. But such a contract was clearly implied by sel, and especially upon the attorney who drew the
the whole transaction from the beginning to the end deed, to insert the limitation in the proper place, and
of it. It had no other purpose, meaning or signifi- supposed he had done so. He was mistaken, and so
cance, solution or explanation, than that Martin were they. Was this a mistake of facr ?
should execute these deeds for such consideration. As we have seen, there was a clear and explicit
Martin held no other interest in this tract or canal agreement aud understanding that this deed should be
that the United States was interested in obtaining given to convey only the interest which Mr. Martin
from him than this, upon which his judgment was a held in the tract by virtue of his sheriff's deed. Mr.
lien, and this was all that was ever considered in the C. N. Gregory was employed to draw up such a deed,
negotiations of the parties or contemplated by them. but in drawing it he made the mistake of so drawing
To execute and carry out this understanding aud agree. it that it conveyed the whole tract, instead of the one-
ment, so far as this tract was concerned, the deed in half covered by the sheriff's deed. Does not this case
question was drawn and executed. The sole object, meet in every respect the admission of the learned
purpose or design of all the parties concerned, or of counsel of the respondent in his brief, as follows: "A
their agents or counsel, was to relieve this tract from middle ground is being built up. It is, where there is
the lien or incumbrance of Martin's judgment, which a complete precedent coutract, or agreement not exe-
stood in the way of the consummation of the sale by | cuted – not correctly expressed in the written agree-
the canal company to the United States. According ment- a court of equity will decree a specifio per-
to the evidence Martin so understood it; Stevens, act- formance of the precedent oontract. This, for con-
ing for the canal company, and at the same time for venience, is done by directing reformation of the
the United States, so understood it; and so it was un- written instrument. The authorities to sustain this
derstood by the legal adviser, Mr. J. C. Gregory, and exception to the rule are numerous and strong." And
by Charles Noble Gregory, the attorney who drew the the learned counsel cites Petesch v. Hambach, 48 Wis.

and they all unquestionably supposed that the 443; 8. C., 4 N. W. Rep. 565; Conrad v. Schwamb, 53 deed was so drawn and executed. It was drawn to Wis. 372; S. C., 10 N. W. Rep. 395; James v. Cutler, 54 express this intention and such a limitation of the Wis. 172; S. C., 10 N. W. Rep. 147; and numerous grant.

other authorities, to sustain the admitted proposition. The mistake was in placing such limitation in the In one of these cases (Iron Co. v. Iron Co., 107 Mass deed after the grant instead of in the grant itself. But | 290) it is said by Judge Wells: “It will be seen that this limitation clause, even where it was inserted in there is a question thus presented by both branehes of the deed, is potent and conclusive as to the real agree

the issue, when taken together, which is not merely of ment and understanding and intention of the parties. a mistake of law as to the construction and effect of It may not have technically limited the grant to one- the deed, but whether by reason of such mental mistake, half of the tract; but does it not estop the parties to the deed, contrary to the real intention of both parthe deed and their privies from afterward disputing ties, failed to be a full and complete execution of the the intention expressed by it, at least in equity, when previons contract of purchase and sale. Such a misthe correction of the mistake is sought? Speculation take, if there are no legal objections to the enforceas to what kind of a mistake this was, whether of fact meut of the oral agreement, will furnish sufficient or of law, and as to what it should be named or how ground for the interference of a court of equity to reclassified, is idle and fruitless. Things and the sub- quire a rectification of the deed." In that case the misstance of things, and the established principles of rea

take was in the legal effect of a reservation or excepson and equity, should be considered in such a case,

tion in the deed, and was the mistake of the person rather than mere names which may mislead, and if

who drew the deed, the parties supposing that it exthis mistake was mutual and of all of the parties con

pressed properly the reservation or exception acoordcerned, which was substantially admitted by them, ing to their previous agreement. ought it not in fairness and equity to be corrected, and

In the last edition of Kerr on Frauds, 468, 469, in the deed reformed in this respect? Should the court

view of established authority on this question, and be restrained from applying an equitable remedy in quoting from authority, it it said: “ Private right of such a case by a decision here and there that a similar ownership is a matter of fact; it may also be the remistake was of law, and therefore could not be cor

sult of a matter of law; but if parties contract under a rected; or of fact, and therefore remediless. I mutual mistake and misapprehension as to their relashall not cite many authorities or comment at any

tive and respective rights, the result is that the agreelength upon those cited to extend this opinion need

ment is liable to be set aside as having proceeded on a lessly. The decisions are very conflicting, and in common mistake." “ Iguorance of a matter of law,” much confusion on this question, and abound in nice

said Lord Chelmsford in Lord Beauchamp y. Winn, and critical distinctions. If in cases substantially like

L. R., 6 E. & I. App. Cas. 234, " arising upon the this in principle, a reformation of the deed has been doubtful construction of a grant, is very different from allowed, they may be referred to, to support and sanc- ignorance of a rule of law. Therefore although when tiou the very strong first impression we have that this a certain construction has been put by a court of law deed ought to be reformed.

upon a deed, it must be taken that the legal construcThis question was very fully argued by counsel, and tion was clear; yet the ignorance before the decision Fery fully and ably treated and considered by Chief

of what was the true construction cannot be pressed Justice Dixon in Hurd v. Hall, 12 Wis. 125, in respect

to the extent of depriving a person of relief on the to a mistake of fact, and the distinction between such ground that he was bouud himself to have known bea mistake and one of law. As a matter of course we

forehand how the grant must be construed. When have no right to violate the maxim, ignorantia juris

therefore a man, through misapprehension or mistake

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of the law, parts with or gives up a private right of extent on the question may justify this consideration property, or assumes obligations upon grounds upon of it. It follows from the above that there was a conwhich he would not have acted but for such misappre- tract between the parties for a conveyance of only heusion, a court of equity may grant relief, if under one-half of the tract, and by mistake the deed was a the general circumstances of the case it is satisfied that conveyance of the whole, aud that such mistake may the party benefited by the mistake cannot in con- and ought to be corrected by reformation of the deed science retain the benefit or advantages so acquired.” | accordingly. I have quoted largely from that authority because this The remaining question will be disposed of briefly. case is exactly described. The cases in this court Had the canal company any equitable title or interest above cited are in accordance with this principle, al- in the half of said tract not intended to be conveyed though the mistake in those cases was in the descrip- | by the deed so as to prevent its correction? One tion of the premises conveyed.

George W. Lawe owned and conveyed this undivided In Savings Bank v. Insurance Co., 31 Conn. 517, the half to Mr. Martin in 1851 in consideration of $1. Marmistake was by the agent in drawing the appli- tin gave Lawe a bood conditioned that he should in cation for the policy to cover the property itself, in- effect fulfill his contract with the State in the constead of the mortgagee's interest in it. The court said: struction of the improvement, and save Lawe harm“There was a mistake as to the proper mode of filling less from the State. The State was bound to discharge out the papers on both sides. The application was the trust it had assumed by accepting the grant for made out in the wrong name, and the policy was made that purpose to construct and complete the contemto the wrong person; but there was no fraud or mis- plated works for the improvement of the Fox aud representation. The papers would have been made Wisconsin rivers. This was all the interest the State out right if they had kuown how to do it; and it is had in it, and all it could have under her Coustitution. immaterial whether the mistake was one of fact or of She had no right to construct hydraulic works for any law.” Citing Stedwell v. Anderson, 21 Comu. 139. other purpose, or purchase or condemn the lands of

In Hunt v. Rousmanier, 8 Wheat. 174, the legal coun- private owuers for hydraulic purposes. Martin bad no sel of the parties advised that a power of attorney such relations to the State or the improvement, nor should be drawn and executed, instead of a mortgage, could have lawfully had, by which bis purchase of onefor certain security, which the power failed to give. half of this tract would inure to the State. All deeds Chief Justice Marshall said: “In this case the fact of which have since been made by Martin have expressly mistake is placed beyond controversy.

We reserved and accepted this interest or been made subfind no case which we think precisely in point, and are ject to this deed. The State and its successors in this unwilling, when the effect of the instrument is ac- improvement have always recognized and have vever knowledged to have been entirely misunderstood by claimed this interest of Martin, and of those holding both parties, to say that a court of equity is incapable it under him, in this balf of the tract he purchased of affording relief.” A bond was drawn joint by the from Lawe. There is no evidence whatever of any mistake of the person who drew it, when it should equitable title in the canal company to this half of the have been joint and several; and it was corrected in tract which can prevent the reformation of the deed equity. Simpson v. Vaughan, 2 Atk. 33; Underhill v. in question as prayed in the counter-claim. Horwood, 10 Ves. 209. The cases are numerous of the The judgment of the Circuit Court is reversed, and correction of the mistake of the parties in reducing the cause remauded, with direction to render judg. their agreement to writing. In some it is called a ment in the case according to this opiniou. mistake of fact, and in others of law; and it made no difference which it was called, the relief was granted in all such cases. Pitcher v. Hennessey, 48 N. Y. 416; CARRIER-CONNECTING-FIRE IN WAREHOUSE and Muher v. Insurance Co., 67 id. 283, are in point.

- LIABILITY. It is a little singular that there should have been any conflict of decisions on this question, when as early as

MICHIGAN SUPREME COURT, NOVEMBER 19, 1884. 1730 it was decided by the old English Court of Chancery that when of four brothers the second died, and

CONDON V. MARQUETTE, H. & (). R. Co.* the eldest entered into possession of his land as heir,

Where a carrier receives goods to be transported over a conand the youngest brother claimed it, and they went to

necting line to their final destination, its liability as a coma school-master who sometimes acted as an attorney,

mon carrier continues until the goods are delivered to the and consulted him as to their rights, and he having ad

other carrier, and if they are destroyed by fire while in the vised them that lands desceud to heirs, and not as.

warehouse of the first carrier, it will be liable for their cend, and therefore the youngest was entitled to the estate of his deceased brother; and on that advice pa

loss, notwithstanding a custom that the connecting car

rier shall inspect the books in which goods are entered as pers were drawn and executed by the oldest brother,

received, and take possession of and transport over its giving the youngest brother an interest in the land to

line goods intended to be so transported. save litigation--the lord chancellor decreed that all

'RROR to Houghton. such papers should be delivered up to the plaintiff as having been obtained by mistake, eto. Landsdown v. Landsdown, Mos. 364.

Chandler, Grant & Gray, for plaintiff. A promissory pote was assigned unqualifiedly, when

W. P. Healey, for defendant and appellant. according to contract it ought to have been without It was reformed in equity according to the

COOLEY, C. J. The plaintiff shipped goods from intention of the parties. Stafford v. Fetters, 55 Iowa,

New York by the New York Central & Hudsou River 484; S. C., 8 N. W. Rep. 3:22. But this opinion on this

Railroad Company, directed to himself at Hancock, question bas been already extended too long. The Michigan, and they were carried in succession by conlearned and candid counsel of the respondent virtually

necting carriers until they were delivered by the Chiadmitted the law to be as above stated, and the ques

cago & Northwestern Railway Company to defendant tion might have rested on such admission; but it being

at Negaunee on March 12, 1883. The goods were carinvolved in the case by the finding of the court, and in

ried by defendant over its road to L'Anse, where they respect to such a case a new question in this court, and arrived March.13, 1883, and were placed in defendant's there being a conflict of decisions elsewhere to some

*S. C., 21 N. W. Rep. 821.

ERROR

recourse.

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