dissenting, in No. 50.
I should have no hesitation in announcing my concurrence in the opinion of the court in this cáse, did it not seem to me to involve a disturbance of legal principle^ which I had supposed to be well settled and confirmed by repeated decisions of this court.
*291To entitle the plaintiff to a decree, he is bound to show, either mistake or fraud. I think he has failed to show either. There was nothing unprecedented — scarcely anything which could be called unusual — in the character of the obligation he assumed. The bond was such an one as is proper to be given to obtain the discharge of a defendant held upon a writ of ne exeat. . In treating of this remedy, it is said in Daniell’s Chancery Practice, that, “ by the terms of the writ, the sheriff is to cause the party, personally, to come before him, and give sufficient bail or security in the sum indorsed on the writ, that he will not go, or attempt to go into parts beyond the seas, without leave of the court; and on his refusal, he is to commit him to the next prison.” It is also said that, “ the court will discharge the writ upon merits, whenever it appears, by the circumstances of the case, as disclosed by the affidavits upon which it was granted and the answer of the defendant, either that the plaintiff has no case, or that the defendant is not going out of the jurisdiction; and this it will do either absolutely or conditional^: that is, upon the defendant’s giving security to abide and perform the decree of the court.” 3d. Am. ed. 1814, 1817; 5th Am. ed. 1710, 1713, with some verbal changes; Howden v. Rogers, 1 Ves. & Beames, 129; Atkinson v. Leonard, 3 Bro. C. C. 218; Roddam v. Hetherington, 5 Ves. 91; Parker v. Parker, 12 N. J. Eq. (Beasley) 105; McDonough v. Gaynor, 18 N. J. Eq. (3 C. E. Green) 249.
In New York, it seems also to be the proper practice to discharge the writ upon the defendant’s giving security to answer the plaintiff’s bill, and to render himself amenable to the process of the court pending the litigation. Mitchell v. Bunch, 2 Paige, 606; McNamara v. Dwyer, 7 Paige, 239.
The writ in this case required Durant to give sufficient bail or security, in the sum of $53,735, u that he, the said Thomas O. Durant, will not go, or attempt to go, into parts beyond this State, without the leave of our said court.” Durant was unwilling to give this security, because, as he said, it was imperatively necessary for him to leave the State and be in New York on the next Monday. It was,, therefore, stipulated between his solicitor and that of the plaintiff, Hazard, that he *292should file a bond, with surety in the penalty marked in the writ of ne exeat, “ to abide and perform the orders and decrees of the court in said cause,” and thereupon the writ of ne exeat should be discharged. These are the exact terms of the bond that was prepared and signed by the plaintiff. There is some conflict as to yjhat took place upon the interview on Saturday-night, at which it was agreed that the bond should be .given. Plaintiff’s witnesses assert that it was understood that a bond was to be 'given for his appearance before the 'courts when wanted. Upon the other hand, defendants’ witnesses, Judge Bradley and Mr. Peckham, who, although outnumbered by the plaintiff’s witnesses, were men of the highest character, members of the legal profession, and understanding thoroughly what they were" about, swore that the nature of the proposed bond was freely discussed by Judge Bradley, Mr. Yan Zandt, and Mr. Durant, and the fact that they were bonds which would hold the principal and sureties' liable to pay money in case Durant should not perform any decree made by the court, was commented upon by them, Judge Bradley speaking for the defendants, and Mr. Yan Zandt ■ and Mr. Durant for themselves, The sureties were present, although it is not claimed that they took part in the discussion. I do not care, however, to attempt to reconcile this testimony, or to determine exactly where the truth lies. Griswold himself admits that, when the bond was prepared and Submitted for his signature, he read it, and noticed the terms “ abide by and per.form the- decrees of the court; ” but, in the absence of any explanation, he inferred that it meant that Durant should appear and render himself subject to the processes of court. He does not complain that its contents or its legal effect were misstated to him, or that Judge Bradley or Mr. Peckham, whc represented the plaintiff in the suit, misled him -by any false representations as to its tenor or purport. He apparent- y re frained from asking any explanation of its meaning, b t assumed himself to construe it, and gave it a different meaning from that which the law. gave -it. This, it seems to me, is a mistake of law, against which equity will give no relief. Griswold, Petitioner, 13 R. I. 125; Hunt v. Rousmaniere, 1 Pet. *2931, 15; United States v. Ames, 99 U. S. 35, 46; Hart v. Hart, 18 Ch. D. 670; Snell v. Insurance Co., 98 U. S. 85; 2 Pomeroy Equity Juris, sec. 843.
In Powell v. Smith, L. R. 14 Eq. 85, 90, the defendant endeavored to defeat the enforcement of an agreement to give a lease upon the ground that he was mistaken as to the legal meaning and effect of an important provision. The Master of Bolls in overruling the defence, said: “ All those cases which have been cited during the argument are cases where there was either a dispute and doubt as to the thing sold, or where the words of the agreement expressed certain things in an ambiguous manner, which might be misunderstood by one of the parties. In all those cases the court has held that it must look at the evidence and that if the mistake is sufficiently proved the court will then set aside the agreement. But here the words of the agreement are quite certain, and the only thing that was not understood was the legal effect of certain words which it contained. Now, that is no ground of mistake at all. It is a question upon the construction of an agreement agreed to by everybody concerned.”
In Eaton v. Bennett, 34 Beav. 196, a marriage settlement wás drawn, as the intended husband alleged, in a manner contrary to the agreement; but before the marriage he knew its contents and executed it under protest, and reserved his right to set it aside. It was held that he could not, after the marriage, sustain a suit to' rectify the settlement. The Master of Bolls observed that “the court, in such cases as these, only' rectifies a settlement when both parties have executed it under a mistake, and have done what they neither of them'intended. Here the plaintiff examined the draft and the settlement prior to its execution, and was perfectly. aware of its 'purport. I think that he cannot set it aside or alter it in this- court.” Indeed, it is a doctrine familiar to this court, that in order to set aside an instrument for mistake it must appear that the mistake was mutual, and that one party is desirous of taking advantage of an error into which he himself in common with the other party has fallen. Hearne v. Marine Ins. Co., 20 Wall. 488, 490; Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. *29445, 48; Sawyer v. Hovey, 3 Allen, 321; German-American Ins. Co. v. Davis, 131 Mass. 316.
In view of the stipulation that was entered into between the solicitors for the respective parties to this suit, I do not see how it can be claimed that there was any mistake upon the part of Bradley or Peckham as to the purport of the bond, and as before observed, unless they were parties to such mistake, there is no equity in reforming the instrument upon that ground. In addition to this the evidence must be such as to leave no reasonable doubt in the mind of the court as to the existence of such mistake, and in my view, without discussing it at length,' the testimony in this case falls far short of the requisite certainty.
Again; it seems to me' that the defence of laches is complete in this case. This bond was executed in August, 1868. It is shown that, as early as October or, November of the same year, in a conversation between Mr. Peckham and the plaintiff in Newport, the character of this, bond, as being distinct from a mere bail bond, was called, to Mr. Griswold’s attention by Mr. Peckham, who told him it was a bond upon which he might be liable to pay money. In Mr. Peckham’s own words, he said: “ If, for example, the court should find a judgment against Durant for any sum of money and he did not pay it, you could be held for the amount named in these bonds. He said, ‘ Well, I guess you are right, but I must see Durant about it. He must do something about it.’ I asked him,- Why, he is rich enough, isn’t he? And Mr. Griswold said, ‘ Tes, he is rich enough, but he is reckless, and there is no telling how long such a man may stay rich, and he must give me security.’ ” It appears then from this testimony, which is practically uncontradicted, that within three months after the bond was given, the plaintiff was distinctly apprised that it was a bond for the payment of money. He appears to have done nothing about it, however, for twelve years; when he filed a petition in the Supreme Court of Rhode Island asking permission to surrender Durant into the custody of the court and be relieved from the bond — a petition which the court refused to grant. In this petition there was “ no suggestion of any fraud, imposition, or *295unfairness in obtaining it, practised by the complainants on the-defendant or his sureties.” Griswold, Petitioner, 13 R. I. 125, 126.
It was not until after this petition had been denied, and an opinion intimated that he might be bound to pay the penalty of the bond in the event of a decree against Durant, that he filed this bill, and for the first time set up that he had been imposed upon in the execution of the bond. In the meantime Durant has died and Hazard has lost whatever advantage* he might have had in the surrender of his body in compliance with the bond which plaintiff says< he understood was to be given in discharge of the writ. -
I cannot avoid the impression that the present defence is an afterthought. In any view, of the case, I think the plaintiff failed to exercise that decree of diligence which this court said in Grymes v. Sanders, 93 U. S. 55, was necessary to entitle a party to rescind upon the ground of mistake or fraud.
I think the decree of the court below is right and should be affirmed.
Me. Justice Beadley and Me. Justice Beewee did not particinate in the decision of this case.