directions that A should at his death distribute the same among his children and relations as he should choose, and A should die without making such distribution, a Court of Equity would interfere and make a suitable distribution; because it is not given to the devisee as a mere power, but as a trust and duty which he ought to fulfil; and his omission so to do by accident or design ought not to disappoint the objects of the bounty. It would be very different if the case were of a mere naked power, and not a power coupled with a trust.1

99. Another class of cases is where a testator cancels a former will upon the presumption that a later will made by him is duly executed, when it is not. In such a case it has been decided that the former will shall be set up against the heir in a Court of Equity, and the devisee be relieved there upon the ground of accident.2 But this class seems more properly to belong to the head of mistake, or of a conditional presumptive revocation, where the condition has failed.3

99 a. Courts of Equity will also interfere and grant relief (as we shall presently more fully see) where there has been by accident a confusion of the boundaries between two estates. (a) So they will also grant relief where by reason of such confusion of boundaries by accident the remedy by distress for a rent charged thereon is gone.5

99 b. So where by accident or mistake, upon a transfer of a bill of exchange or a promissory note, there has been an omission by the party to indorse it according to the intention of the transfer in such a case, the party, or in case of his death his executor or administrator, may be compelled in equity to make the indorsement, and if the party has since become bankrupt or his estate is insolvent, his assignees will be compelled to make it; for the transaction amounts to an equitable assignment, and a Court of Equity will clothe it with a legal effect and title.

1 Harding v. Glynn, 1 Atk. 469, and note by Saunders; Brown v. Higgs, 4 Ves. 709; 5 Ves. 495; 8 Ves. 561; 2 Chance on Powers, ch. 23, § 1.

2 Onions v. Tyrer, 1 P. Will. 343, 345; s. c. 2 Vern. 751; Prec. Ch. 459. 8 1 P. Will. 345, Cox's note; Burtenshaw v. Gilbert, Cowp. R. 49. Mitf. Eq. Pl. by Jeremy, 117; Post, § 565, §§ 615 to 622.

5 Duke of Leeds v. Powell, 1 Ves. 171; Post, § 622.

• Watkins v. Maule, 2 Jac. & Walk. 242; Chitty on Bills, ch. 6, p. 263

(a) Beatty v. Dixon, 56 Cal. 619; Wetherbee v. Dunn, 36 Cal. 255.

100. These may suffice as illustrations of the general doctrine of relief in equity in cases of accident. They all proceed upon the same common foundation that there is no adequate or complete remedy at law under all the circumstances; that the party has rights which ought to be protected and enforced; or that he will sustain some injury, loss, or detriment, which it would be inequitable to throw upon him.

101. And this leads us naturally to the consideration of those cases of accident in which no relief will be granted by Courts of Equity. In the first place, in matters of positive contract and obligation created by the party (for it is different in obligations or duties created by law),1 it is no ground for the interference of equity that the party has been prevented from fulfilling them by accident, or that he has been in no default, or that he has been prevented by accident from deriving the full benefit of the contract on his own side.2 Thus if a lessee on a demise covenants to keep the demised estate in repair, he will be bound in equity as well as in law to do so, notwithstanding any inevitable accident or necessity by which the premises are destroyed or injured; as if they are burnt by lightning or destroyed by public enemies, or by any other accident, or by overwhelming force. The reason is, that he might have provided for such contingencies by his contract if he had so chosen; and the law will presume an intentional general liability where he has made no exception.3

102. And the same rule applies in like cases where there is an express covenant (without any proper exceptions) to pay rent during the term. It must be paid, notwithstanding the premises are accidentally burnt down during the term. And this is equally true as to the rent, although the tenant has covenanted to repair except in cases of casualties by fire, and the premises are burnt down by such casualty; for, Expressio unius est (8th edit. 1833); Bayley on Bills, ch. 5, § 2, pp. 136, 137 (5th edit. 1830); Post, § 729.

6

1 Paradine v. Jane, Aleyn, R. 27. See also Story on Bailments, §§ 25, 35, 36.

21 Fonbl. Eq. B. 1, ch. 5, § 8, note (g). See Com. Dig. Chan. 3 F. 5; Barrisford v. Done, 1 Vern. 98.

8 Id. Dyer, R. 33 (a); Chesterfield v. Bolton, Com. R. 627; Bullock v. Dommitt, 6 T. R. 650; Brecknock, &c. Canal Company v. Pritchard, 6 T. R. 750; Paradine v. Jane, Aleyn, R. 27; Monk v. Cooper, 2 Str. R. 763; 1 Fonbl. Eq. B. 1, ch. 5, § 8, note (g), p. 374, &c.; Harrison v. Lord North, 1 Ch. Cas. 83.

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exclusio alterius.1 (a) In all cases of this sort of accidental loss by fire the rule prevails, Res perit domino;' and therefore the tenant and landlord suffer according to their proportions of interest in the property burnt; the tenant during the term, and the landlord for the residue.

103. And the like doctrine applies to other cases of contract, where the parties stand equally innocent.2 Thus for instance if there is a contract for a sale at a price to be fixed by an award during the life of the parties, and one of them dies before the award is made, the contract fails; and equity will not enforce it upon the ground of accident, for the time of making the award is expressly fixed in the contract according to the pleasure of the parties, and there is no equity to substitute a different period.3

104. So if A should covenant with B to convey an estate for two lives in a church lease to B by a certain day, and one of the lives should afterwards drop before the day appointed for the conveyance, B would be compelled to stand by his contract and to accept the conveyance; for neither party is in any fault, and B by the contract took upon himself the risk, by not providing for the accident. So if an estate should be sold by A to B for a certain sum of money and an annuity, and the agreement should be fair, equity will not grant relief, although the party should die before the payment of any annuity.5

105. In the next place Courts of Equity will not grant relief to a party upon the ground of accident, where the accident has arisen from his own gross negligence or fault; for in such a case the party has no claim to come into a court of justice to ask to be saved from his own culpable misconduct. And on this

1 Monk v. Cooper, 2 Str. 763; s. c. 2 Lord Raymond, 1477; Balfour v. Weston, 1 T. R. 310; Fowler v. Bott, 6 Mass. R. 63; Doe v. Sandham, 1 T. R. 705, 710; Hallet v. Wylie, 3 John. R. 44; Hare v. Groves, 3 Anst. 687; › Holtzapffell v. Baker, 18 Ves. 115; Pym. v. Blackburn, 3 Ves. 34, 38; 1 Fonbl. Equity, B. 1, ch. 5, § 8, note (g); Cooper, Eq. Pl. 131.

2 Com Dig. Chancery, 3 F. 5.

› Blundell v. Brettargh, 17 Ves. 232, 240

White v. Nutt, 1 P. Will. 61.

Mortimer v. Capper, 1 Bro. Ch. R. 156; Jackson v. Lever, 3 Bro. Ch. R. 605; see also 9 Ves. 246.

(a) See Wood v. Hubbell, 5 Barb. 601; s. c. 10 N. Y. 479. In Brewer v. Herbert, 30 Md. 301, a contract for the sale of a house and land was en

forced though the house had burnt down. See also McKecknie v. Sterling, 48 Barb. 330, 335. But see Smith v. McCluskey, 45 Barb. 610, 613.

account, in general, a party coming into a Court of Equity is bound to show that his title to relief is unmixed with any gross misconduct or negligence of himself or his agents.1

105 a. In the next place Courts of Equity will not interfere upon the ground of accident where the party has not a clear vested right, but his claim rests in mere expectancy and is a matter, not of trust, but of volition. Thus if a testator intending to make a will in favor of particular persons is prevented from doing so by accident, equity cannot grant relief; for it is not in the power of the court to relieve against accidents which prevent voluntary dispositions of estates; 2 and a legatee or devisee can take only by the bounty of the testator, and has no independent right until there is a title consummated by law. The same principle applies to a mere naked power, such as a power of appointment uncoupled with any trust; if it is unexecuted by accident or otherwise, a Court of Equity will not interfere and execute it as the party could or might have done.3 But if there be a trust, it will, as we have seen, be otherwise.*

106. In the next place no relief will be granted on account of accident, where the other party stands upon an equal equity and is entitled to equal protection. Upon this ground also equity will not interfere to give effect to an imperfect will against an innocent heir at law; for as heir he is entitled to protection, whatever might have been the intent of the testator, unless his title is taken away according to the rules of law.5

107. So if a tenant for life or in tail have a power to raise money, and he raises money by mortgage without any reference to the power, and not in conformity to it, the mortgage will not bind the heir in tail. So if a tenant in tail conveys the estate

1 Marine Insurance Company v. Hodgson, 7 Cranch, 336. See Penny v. Martin, 4 John. Ch. R. 569; 1 Fonbl. Eq. B. 1, ch. 3, § 3; Ex parte Greenway, 6 Ves. 812. See also 7 Ves. 19, 20; 9 Ves. 467, 468.

2 Whitton v. Russell, 1 Atk. 448; 1 Madd. Ch. Pr. 46.

8 Brown v. Higgs, 8 Ves. 559, 561; Pierson v. Garnet, 2 Brown, Ch. R. 38, 226; Duke of Marlborough v. Godolphin, 2 Ves. 61, and Belt's Supplement, 277, 278; Harding v. Glyn, 1 Atk. 469, and Saunders's note; Tollet v. Tollet, 2 P. Will. 489; 1 Fonbl. B. 1, ch. 4, § 25, note (h); Id. note (k); 1 Madd. Ch. Pr. 46. 4 Ante, § 98.

5 See Com. Dig. Chancery, 3 F. 6, 7, 8; 1 Fonbl. Eq. B. 1, ch. 4, § 25, notes (k), (n); Grounds and Rudim. of the Law, M. 167, p. 128 (edit. 1751).

Jenkins v. Kemis, 1 Cas. Ch. 103; s. c. cited 2 P. Will. 667; 1 Fonbl. Eq. B. 1, ch. 4, § 25, notes (1), (n).

by bargain and sale, or enters into a contract of sale, and covenants to suffer a fine and recovery, and he dies before the fine or recovery is consummated, the heir in tail or remainder-man is not bound; for he is deemed a purchaser under the donor, and entitled to protection as such; and a Court of Equity will not, further than a Court of Law, carry into effect against him any act of a former tenant in tail.1

108. And generally against a bona fide purchaser for a valuable consideration without notice a Court of Equity will not interfere on the ground of accident; for in the view of a Court of Equity such a purchaser has as high a claim to assistance and protection as any other person can have.2 Principles of an analogous nature seem to have governed in many of the cases in which the want of a surrender of copyholds has been supplied by Courts of Equity.3

109. Perhaps upon a general survey of the grounds of equitable jurisdiction in cases of accident it will be found that they resolve themselves into the following: that the party seeking relief has a clear right which cannot otherwise be enforced in a suitable manner; or that he will be subjected to an unjustifiable loss without any blame or misconduct on his own part; or that he has a superior equity to the party from whom he seeks the relief.1

1 1 Fonbl Eq. B. 1, ch. 1, § 7, and note; Id. ch. 4, § 19, and note; Weal v. Lower, 1 Eq. Abridg. 266; Powell v. Powell, Prec. Ch. 278.

2 Mitford, Eq. Pl. by Jeremy, 274, X.; Cooper, Eq. Pl. 281 to 285; 2 Fonbl. Eq. B. 2, ch. 6, § 2, and notes; Malden v. Merrill, 2 Atk. 8; Newl. on Contr. ch. 19, p. 342; Ante, § 64 c.; Post, §§ 154, 165, 381, §§ 409 to 411, 416, 434, 436.

1 Fonbl. Eq. B. 1, ch. 1, § 7, and note (v).

4 Many of the cases on this subject will be found collected in 1 Madd. Ch. Pr. ch. 2, § 2, p. 41, &c., Jeremy on Equity Jurid. ch. 1, p. 359, &c., and 2 Swift's Digest, ch. 6, p. 92, &c.