(a) Accident and Negligence. cident means happening; and its consequences therefore, falling upon one who seeks relief from them, fall there without that one's intention. On this ground the absence of intention on the part of the plaintiff — relief is granted. Some forfeiture or some final loss is about to transpire, without the intention of the sufferer, in consequence of what has merely happened.

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See

Jurisdiction of the courts may indeed be cut off by force of the terms of a contract; as where a promise to pay rent is absolute, or a promise to do something on a certain day or within a certain time is made in such terms as to show that the understanding was, that performance on that particular day or within that time was the very thing, or one of the very things, agreed upon. That is, in common language, such performance is of the essence of the contract. e. g. Brown v. Vandergrift, 80 Penn. St. 142; Gregory v. Wilson, 9 Hare, 683. True, the result-the non-performance may have happened without the party's intention; but accident is excluded from consideration, because the parties have agreed that nothing of the sort shall be taken into the account. The case may still be one for equitable interference against the agreed result; but where that is the fact, it will be found that interference is based, not on the ground of accident, but of some other consideration, such as the fact that a forfeiture provided is named by way of penalty, and not of liquidated damages. infra, §§ 1314-1318.

See

Negligence consists in failing to exercise due care, prudence, or diligence

the care,

in the particular situation, prudence, or diligence, that is to say, which a good citizen would there exercise. Will negligence have the effect to bar one of relief from the consequences of accident? Clearly it will, if it shows that the particular fact came about by the intention of the party seeking relief; clearly not, in principle, if it does not substantially show that.

Now it is often said, and for certain purposes it is well enough to say, that a man is held to intend the natural consequences of his conduct. But that rule has only a particular application. It does not express the whole conception of negligence even when applied to that subject. It merely means that for the purpose of punishment or damages, or of saving another from harm and injustice, the act or omission may be deemed to have had its natural result, and the result treated as if it had been foreseen, as it ought to have been. The party must for such purpose be deemed to have intended what be should have expected. But a man does not, broadly speaking, lose his rights by mere negligence. Negligence cannot e. g. work a gift. The rule that a man intends the natural consequences of his conduct cannot be pressed into service to deprive a man arbitrarily of his property; the rule is applied only where the position of an innocent person has been influenced and changed by such conduct.

But relief from the consequences of accident is never granted where the equities of the defendant are equal — as in the case just put — to those of the plaintiff. If however the defendant stands in no position deserving the sup

A chancellor is, it is true, apt to be impatient with a party who seeks relief based even in part on his own negligence; but it is submitted that this ought never to go to the extent of refusing justice where there are no adverse interests deserving attention. It is well-settled law in England that negligence in the payment of money will not bar the payer from recovering it back if the payment was made under mistake; and this has been declared to be good law by chancellors as well as by common-law judges. Willmott v. Barber, 15 Ch. D. 96; Kelly v. Solari, 9 Mees. & W. 54; Bell v. Gardiner, 4 Man. & G. 11; Dails v. Lloyd, 12 Q. B. 531; Townsend v. Crowdy, 8 C. B. N. s. 477. The authorities are not so clear in this country, but it is apprehended that the rule stated is the true one. See Kilmer v. Smith, 77 N. Y. 226; Monroe v. Skelton, 36 Ind. 302; post, note to § 140. Now the situation of the defendant in such a case is generally more deserving of consideration than that of a defendant in a case of accident; besides, there has been actual intention in the case of mistake, though the intention would have been different, probably, — who can say certainly? had the situation been understood. And the plaintiff is in the same predicament in both cases; he has been guilty of negligence.

The question of the effect of negligence may be forcibly brought out

by considering the case of the loss of a negotiable instrument, in which case equity, generally speaking, grants relief upon a suitable tender of indemnity to the defendant. Can it be that the plaintiff will be barred of relief on the ground that the loss of the instrument was due to his own negligence?. What if the result was the natural effect of the plaintiff's want of care? The defendant is no worse off for that than if the instrument had been lost without negligence; and the plaintiff did not intend to give up his right.

Take the case of pay-day passed, involving a certain proper forfeiture. If payment on the very day is of the essence of the contract, it must be made then; if not, payment on a subsequent day, within a reasonable time, will be good, in equity at least, by necessary consequence. See Hearst v. Pujol, 44 Cal. 230; Beecher v. Beecher, 43 Conn. 556. The parties have not fixed a day absolute. Tender within a reasonable time after the day named will save the forfeiture for the strongest reason, if the failure to pay on the day was due to accident; and the case cannot be different though the accident was due to negligence, or, to put the case directly, though the failure was due to negligence, if the neglect to pay was not wilful. So long as the other party's position has not been changed to his detriment, and there is no binding agreement for a forfeiture absolute, a forfeiture ought not to be decreed for negligence per se in the face of the tender. There has been no gift or abandonment of rights.

In the case of wilful neglect with foresight of the specific result, and with no obstacle entirely preventing performance of an obligation, no doubt equity will refuse its aid to prevent consequences made a dis

tinct and proper part of the contract, though there may still be something short of actual intention to confer a gift. Hancock v. Carlton, 6 Gray, 39, 52, 57. There is something like an abandonment of a right in such a case. It will be noticed that the author usually speaks of gross misconduct,' gross negligence,' or 'rashness,' as barring relief. Supra, §78; post, § 105. He speaks very cautiously of mere negligence. That perhaps may induce a Court of Equity to withhold its assistance;' § 90, at end. It might have that effect where attended with forecast of the result, if no sufficient obstacle prevented action; otherwise it is apprehended it would not necessarily. (Of course knowledge alone of e. g. the time of performance would not bar relief from the effect of accident. Bargent v. Thompson, 4 Giff. 473, where prompt performance was prevented by the weather, time not being of the essence of the contract.)

Indeed it may be that wilful negligence with forecast of the specific result will bar relief, though a preventing obstacle existed, if that preventing obstacle would not have been in the way but for the plaintiff's negligence. In the case of Bargent v. Thompson, just cited, it is probable that the party would not have been relieved had the performance of his contract (to make repairs) been delayed by his negligence till the bad weather at last set in and prevented the completion of what might well have been done notwithstanding the weather. But that would be because of wilful negligence, -negligence with forecast, not because of negligence as such, or negligence that another of better judgment might have seen would end in the particular loss. That is, there is something, if not equivalent

to a gift, at all events capable of being treated as an abandonment.

There is a similar distinction with reference to negligence after the day of performance (not of the essence of the contract) has passed with knowledge on the part of the obligor. Neglect of tender in such a case will be evidence, more or less cogent according to circumstances, of acquiescence; and acquiescence with knowledge may no doubt make decisive that which otherwise would be indecisive.

There is also a case with regard to which a settled and sound public policy applies, touching accident resulting from negligence, and that is the conduct of causes. Courts are of small use if they cannot put a stop to litigation. 'Interest reipublicæ ut litium finis sit;' and if litigants were allowed to upset decisions on grounds of their own negligence, causes might never be at an end. This is the case to which the rule applies, that the courts aid vigilantibus non dormientibus; ' and this is the case of the decisions referred to by the author. Penny v. Martin, 4 Johns. Ch. 566; Marine Ins. Co. v. Hodgson, 7 Cranch, 532, 536. See also Sargeant v. Bigelow, 24 Minn. 370; Wilder v. Lee, 64 N. Car. 50; Miller v. Morse, 23 Mich. 365; George v. Alexander, 6 Cold. 641.

Aside from this class of cases it is apprehended that the courts have nothing to do with the mere negligence of a plaintiff asking for relief from the consequences of accident. The question of rights is the only one legitimately before the court.

The following may be enumerated among recent specific cases of relief:

Death of a sheriff before making conveyance, but after having duly made sale, received the purchasemoney, and made return of his acts. Stewart v. Stokes, 33 Ala. 494. De

struction of the records of the court ordering a sale in a particular case. Garrett v. Lynch, 45 Ala. 205. Destruction of the whole record of a cause. Sproles v. Powell, 10 Heisk. 693. But it is held that equity cannot restore the lost records of another court. Keen v. Jordan, 13 Fla. 327. Loss of a mortgage deed on land to secure personal support. Lawrence v. Lawrence, 42 N. H. 109. Loss of a deed containing an error reformable in equity, with decree of a new and correct deed. Hudspeth v. Thomason, 46 Ala. 470. Loss of sealed instrument. Patton v. Campbell, 70 Ill. 72. Lost negotiable paper. Hopkins v. Adams, 20 Vt. 407; Adams v. Edmunds, 55 Vt. 352; Chewning v. Singleton, 2 Hill, Ch. (S. Car.) 371. Further as to the loss of negotiable paper, see Fales v. Russell, 16 Pick. 315; Almy v. Reed, 10 Cush. 421; Boston Lead Co. v. McGuirk, 15 Gray, 87; Tower v. Appleton Bank, 3 Allen, 387; Tuttle v. Standish, 4 Allen, 481; Smith v. Rockwell, 2 Hill, 482; Bridgeford v. Masonville Manuf. Co., 34 Conn. 546; Savannah Bank v. Haskins, 101 Mass. 370; McGregory v. McGregory, 107 Mass. 543; Wright v. Maidstone, 1 Kay & J. 701. The last-named case shows that when the paper, though negotiable, has been destroyed, the jurisdiction is at law and not in equity. And where, as in some

States is deemed to be the case, adequate indemnity can be required at law, the Courts of Law will entertain suits on lost as well as on destroyed negotiable instruments. Bridgeford v. Masonville Manuf. Co., supra; Tuttle v. Standish, supra; McGregory v. McGregory, supra. But it is held in Tuttle v. Standish that where the suit is against an indorser, a mere bond of indemnity may not afford adequate protection to the defendant, since he may need the instrument for the purpose of suit against a prior party. And in Savannah Bank v. Haskins, supra, it was held that such a bond would not sufficiently serve an acceptor of a bill, since he may need the paper as a voucher in settling his accounts with the drawer. But as to the maker of a note it was considered to be settled law in Massachusetts that tender of a suitable bond would justify the Law Courts in entertaining the indorsee's action. In any event however jurisdiction will exist in equity unless it is clear that it has been taken away by statute. Labadie v. Hewitt, 85 Ill. 341; Lee v. Lee, 55 Ala. 590, 598; Hinchley v. Greany, 118 Mass. 595; Clouston v. Shearer, 99 Mass. 209; Sweeny v. Williams, 36 N. J. Eq. There, it seems, all the parties to the paper can be brought before the court, and their respective rights adjusted. Compare § 28, supra.