Statement of the Case.

cutions, extents, quarrels, controversies, trespasses, damages and demands whatever, both in law or equity, which the Crédit Mobilier of America then had, or might at any time thereafter have, claim, allege or demand, against said Durant, for or by reason or means of any matter, cause or thing whatever; that, afterwards, on the 27th day of October, 1881, Ames, under the said authority, and in consideration of the execution by Durant of a deed conveying the title to certain lands mentioned in the order of court authorizing the release, delivered to the latter a deed of release, of the kind. above indicated, of all sums of money then due or owing to, or thereafter to become due to, said corporation; that the above equity suit in the Supreme Court of Rhode Island was, and had been, wholly controlled by Rowland G. Hazard; that notwithstanding the delivery of the above deed to Durant, the latter suit was proceeded with, and the Supreme Court of Rhode Island rendered a decree refusing to allow him to set it up as a bar to the entering of such decree, on the ground that he was in contempt of that court for violation of one of its decrees rendered therein; and that after the delivery of the deed of release to Durant the plaintiff requested the defendants to surrender the bond of August 24, 1868, and to abstain from suing him thereon, but they refused to comply with that request. The relief asked was an injunction restraining the defendants from further proceeding in the action at law. Upon a hearing before Judges Colt and Carpenter a demurrer to the bill was sustained, and the bill dismissed, October 28, 1886, Judge Carpenter delivering the opinion of the court. 28 Fed. Rep. 597.

The bill in case No. 52 was filed June 12, 1885. It assailed the jurisdiction of the Supreme Court of Rhode Island over the subject matter of the suit in equity brought by Hazard upon the ground that before bringing it neither the plaintiff therein, Isaac P. Hazard, nor any other stockholder of the Crédit Mobilier of America, requested the managing committee of the board of directors or the stockholders of that corporation to begin legal or equitable proceedings against Durant. The cause was heard upon demurrer before Judges Colt and

Mr. Carter for Griswold.

Carpenter. The demurrer was sustained and the bill dismissed, the opinion of the Circuit Court being delivered by Judge Carpenter. 28 Fed. Rep. 578.

Mr. James C. Carter for Griswold argued Nos. 50 and 53, and submitted Nos. 51 and 52.

In No. 50 the specification of errors relied upon was as follows:

First. That the court below erred in overlooking the distinguishing feature of the case that the obligation sought to be cancelled or reformed was one of suretyship, and was entered into under circumstances well calculated to create misapprehension in the minds of the obligors as to its real character;

Second. That the court below erred by acting upon the view that in order to entitle the complainant to relief it was necessary to show that both parties to the instrument understood that it was to be a bond for the appearance only of Durant in the equity suit, and that it was not enough to show that the complainant, Griswold, supposed it to be of that character, and that the obligees took it, well knowing or having good reason to know that such was the belief under which the complainant Griswold was acting.

Third. — That the court below, even upon the view that the case was the ordinary one of an attempt to impeach a written instrument on the ground of mistake, and without reference to the points of the character of the obligation as being that of suretyship, and of the peculiar circumstances under which it was procured, erred by deciding, against the weight of evidence, that the mistake was not sufficiently proved.

The following cases were cited by Mr. Carter in this case: Barber v. Barber, 21 How. 582; Samuel v. Howarth, 3 Meriv. 272, 278; Railton v. Mathews, 10 Cl. & Fin. 935; Russell v. Asley, 5 Ves. 96; Brayton v. Smith, 6 Paige, 489; McNamara v. Dwyer, 7 Paige, 239; S. C. 32 Am. Dec. 627; Mitchell v. Bunch, 2 Paige, 605; S. C. 22 Am. Dec. 669; Johnson v. Clen

Mr. Carter for Griswold.

denin, 5 Gill & J. 463; Hamilton v. Watson, 12 Cl. & Fin. 109, 119; Franklin Bank v. Cooper, 36 Maine, 179, 197; Williams v. Bayley, L. R. 1 H. L. 200; Davies v. Lond. Prov. Mar. Ins. Co., 8 Ch. D. 469; Wythes v. Labouchere, 3 De G. & J. 593; Phillips v. Foxall, L. R. 7 Q. B. 666; Meadows v. Meadows, 16 Beav. 401; Millar v. Craig, 6 Beav. 433; Cocking v. Pratt, 1 Ves. Sen. 400; Brown v. Lamphear, 35 Vermont, 252; Paget v. Marshall, 28 Ch. Div. 255; Garrard v. Frankel, 30 Beav. 445; Small v. Currie, 2 Drewry, 102, 114; Wauters v. Van Vorst, 28 N. J. Eq. 103; Slocomb v. Robert, 16 La. 173; Lloyd v. McTeer, 33 Georgia, 37.

In No. 53 Mr. Carter's specification of errors relied on was as follows:

First.That the court below erred in sustaining the demurrer to the second original plea.

Second. That the court below erred in sustaining the demurrer to the third original plea.

Third. That the court erred in striking out the third plea as amended.

Fourth. That the court erred in sustaining the demurrer to the fourth original plea.

Fifth. That the court erred in striking out the fourth plea as amended.

Sixth. That the court erred in sustaining the demurrer to the fifth original plea.

Seventh. That the court erred in striking out the fifth plea as amended.

Eighth. That the court below erred in not granting at the trial the motion of the plaintiff in error for judgment on his eighth plea.

Ninth. That the court below erred in not granting at the trial the motion of the plaintiff in error for judgment on his ninth plea.

He cited Railton v. Mathews, 10 Cl. & Fin. 935; Williams v. Bayley, L. R. 1 H. L. 200, 219; Brandt on Suretyship, §§ 365, 366; Baylies on Sureties, p. 293; Lee v. Jones, 17 C. B.

Citations for Hazard.

(N. S.) 482; Franklin Bank v. Cooper, 36 Maine, 179; Pidcock v. Bishop, 3 B. & C. 605; The Cumberland Coal Co. v. The Hoffman Steam Coal Co., 30 Barb. 159, 171; Howell v. Chicago & Northwestern Railroad, 51 Barb. 378; Strong v. Grannis, 26 Barb. 122; Osborn v. Robbins, 36 N. Y. 365; Ingersoll v. Roe, 65 Barb. 346; State v. Brantley, 27 Alabama, 44; Griffith v. Sitgreaves, 90 Penn. St. 161.

Mr. Elias Merwin and Mr. Samuel Maddox submitted all the cases on their briefs.

In No. 50 they cited: Wallingford v. Mutual Society, 5 App. Cas. 685; Griswold, Petitioner, 13 R. I. 125; Hazard v. Durant, 9 R. I. 602, 606, Potter, J.; Dick v. Swinton, 1 Ves. & Bea. 371; Stewart v. Graham, 19 Ves. 312; Hearn v. Insurance Co., 20 Wail. 490; Snell v. Insurance Co., 98 U. S. 85; Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45; S. C. 107 Mass. 290, 316; Harrison v. Hartford Insurance Co., 30 Fed. Rep. 862; IIunt v. Rousmaniere, 1 Pet. 1, 15; Upton Assignee v. Tribilcock, 91 U. S. 45; United States v. Ames, 99 U. S. 35, 46; Railroad Company v. Souther, 13 Wall. 517, 524; Hart v. Hart, 18 Ch. D. 670; Irnham v. Child, 1 Brown Ch. 92; Allen v. Galloway, 30 Fed. Rep. 466; Rashdall v. Ford, L. R. 2 Eq. 750, 754; Blackburn's Case, 8 De G. McN. & G. 177, 180; Germ. Am. Ins. Co. v. Davis, 131 Mass. 316; Oliver v. Insurance Co., 2 Curtis, 277, 296.

In No. 53 they cited: Slack v. McLagan, 15 Illinois, 242; Capuro v. Builders' Ins. Co., 39 California, 123; Murphy v. Byrd, Hemp. 221; Cole v. Joliet Opera Co., 79 Illinois, 96; Service v. Heermance, 2 Johns. 96; Hale v. W. Va. Oil &c. Co., 11 W. Va. 229, 235; Jones v. Albee, 70 Illinois, 34; Sterling v. Mercantile Ins. Co., 32 Penn. St. 75; S. C. 72 Am. Dec. 773; Darnell v. Rowland, 30 Indiana, 342; J'Anson v. Stuart, 1 T. R. 748; Hynson v. Dunn, 5 Arkansas, 395; Hopkins v. Woodward, 75 Illinois, 62, 65; Abraham v. Gray, 14 Arkansas, 301; Thoroughgood's Case, 2 Rep. 9; Ilawkins v. Ilawkins, 50 California, 558; Rogers v. Place, 29 Indiana, 577; Seeright v. Fletcher, 6 Blackford, 380; Insurance Co. v. Hodgkins, 66 Maine, 109; Miller v. Elliott, 1 Indiana, 267; S. C. 50 Am.

VOL. CXLI-18

Opinion of the Court.

Dec. 475; Starr v. Bennett, 5 Hill, 303; Clem v. Newcastle & Danville Railroad, 9 Indiana, 488; S. C. 68 Am. Dec. 653; Blackburn's Case, 8 DeG. M. & G. 176; Rashdall v. Ford, L. R. 2 Eq. 750; McDonald v. Trafton, 15 Maine, 225; Zehner v. Kepler, 16 Indiana, 290; Moss v. Riddle, 5 Cranch, 351, 357; Hazard v. Durant, 11 R. I. 195; Harvey v. Taylor, 2 Wall. 328; Cooper v. Reynolds, 10 Wall. 308; Cornett v. Williams, 20 Wall. 226; Jesup v. Hill, 7 Paige, 95; Hazard v. Durant, 9 R. I. 602, 606; People v. Norton, 5 Selden, 176; Bassett v. Crafts, 129 Mass. 513; Huscombe v. Standing, Cro. Jac. 187; Mantell v. Gibbs, Brownl. & Gold. 64; Plummer v. The People, 16 Illinois, 358; Robinson v. Gould, 11 Cush. 55; Fay v. Oatley, 6 Wisconsin, 42; McClintick v. Cummins, 3 McLean, 158; Thompson v. Lockwood, 15 Johns. 256; Fisher v. Shattuck, 17 Pick. 252; Bowman v. Heller, 130 Mass. 153; Harris v. Carmody, 131 Mass. 51; Griffith v. Sitgreaves, 90 Penn. St. 161; Peck v. Jenness, 7 How. 612; Hutchinson v. Green, 2 McCrary, 471; Atwood v. Merryweather, L. R. 5 Eq. 464; Tracy v. First Nat. Bk., 37 N. Y. 523; Booth v. Clark, 17 How. 322; United States v. Buford, 3 Pet. 12, 31, 32; Ex parte Bradstreet, 7 Pet. 634, 647; Chiruc v. Reinicker, 11 Wheat. 280, 302.

In No. 51 they cited: Insurance Co. v. Bailey, 13 Wall. 616, 621; Balance v. Forsyth, 24 How. 183; Lee v. Lancashire &c. Railway, 6 Ch. Ap. 527; Fuller v. Cadwell, 6 Allen, 503; Anthony v. Valentine, 130 Mass. 119; McElmoyle v. Cohen, 13 Pet. 326; Mills v. Duryea, 7 Cranch, 481; United States v. Throckmorton, 98 U. S. 61, 65, 66; White v. Crow, 110 U. S. 183, 189; Cooper v. Reynolds, 10 Wall. 308, 316, 317; Cornett v. Williams, 20 Wall. 308, 316, 317; Bateman v. Willoe, 1 Sch. & Lef. 201, 204, 205, 206; Castrique v. Imrie, L. R. 4 H. L. 414; Godard v. Gray, L. R. 6 Q. B. 139.

In No. 52 they cited: Peck v. Jenness, 7 How. 612, 625; Cooper v. Reynolds, 10 Wall. 316; Jesup v. Hill, 7 Paige, 95; Griswold, Petitioner, 13 R. I. 125.

MR. JUSTICE HARLAN, after making the above statement, delivered the opinion of the court.