“ Peckham, who, although outnumbered by the plaintiff's, 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. Van 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 complainants, and Mr. Van Zandt and Mr. Durant for themselves. ”

“ But we do not rest our decision upon any ground of fraud in law or fraud in fact. We acquit the attorneys of Hazard of any desire or purpose to do injustice to Griswold, or to commit a fraud upon him. But we are constrained, by the settled rules of evidence, to hold, as already indicated, that their recollection of the circumstances under which the bond of August 24th was executed is materially a faul, a nd that the alleged mistake is established by convincing proof. ”

“ 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 mean time 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. ”

“ Probably we were not together at my office more than ten minutes.' Referring to the interview at the jail, Bradley testified that nothing was said, to the best of his recollection and belief, by any one, conveying the idea that the complainants were to obtain from the defendant only a bail bond for his appearance; and that 'the terms of the bond were expressed so as to exclude the idea that it was merely a bail for appearance, and to provide that it should be a bond to abide and perform the order of the court.' He further said that the bond 'was to be a security,' and it was so announced. ”

“ Our attention will be directed first to case No. 50, in which a decree is sought to cancel, or, in the alternative, to reform, the bond of August 24, 1868, executed by Durant as principal, and by Griswold and Bradford as sureties, and to restrain the defendants from suing upon it in its present form. The granting or refusing of such a decree depends, of course, upon the inquiry whether the plaintiff Griswold has, by evidence sufficiently clear and convincing, manifested his right to the relief asked. ”

“ While it is laid down that 'a mere mistake of law, stripped of all other circumstances, constitutes no ground for the reformation of written contracts,' yet 'the rule that an admitted or clearly established misapprehension of the law does create a basis for the interference of courts of equity, resting on discretion and to be exercised only in the most unquestionable and flagrant cases, is certainly more in consonance with the best-considered and best-reasoned cases upon this point both English and American.' Snell v. ”

“ If the attorneys of Hazard intended to obtain, by means of a bond, more than he was entitled to by such a bond as the writ of ne exeat called for, and more than the court would ordinarily have given them, upon Durant's application to discharge the writ; if they intended to secure a bond that would make Griswold personally liable, within the penal sum, for any money decree passed against Durant, then a fraud was perpetrated upon him, which entitles him to relief ”

“ He accompanied them to that place, one of the counsel of Hazard, Mr. Peckham, following on foot to the sheriff's office. Information of the arrest having been communicated to Mr. H. W. Gray, also a citizen of New York, temporarily at Newport, that gentleman went to Griswold, who was his uncle, and begged the latter to go to the jail and become bail for Durant's appearance. Griswold had only a slight acquaintance with Durant, never having met him until the spring of 1868, and held no personal or business relations of any kind with him. ”

“ A party arrested upon ne exeat may obtain the discharge of the writ, upon motion or petition, and after notice, and according to some authorities, 'it is a matter of course to order the ne exeat to be discharged, upon the defendant's giving security to answer the complainant's bill, and to render himself amenable to the process of the court pending the litigation, and to such process as may be issued to compel a performance of the final decree. ”

“ To 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 a one as is proper to be given to obtain the discharge of a defendant held upon a writ of ne exeat. ”

“ The error, if any, committed by the supreme court of Rhode Island in not allowing the release, executed to Durant by the receiver in the Pennsylvania court of the Credit Mobilier of America, to be interposed as a defense in the suit brought by Hazard against Durant and others, could not be corrected by bill in equity, filed by a surety on the bond of August 24th ”

“ Griswold v. Hazard
Pursuant to a stipulation of counsel, dated November 26, 1883, that the plaintiff might demur specially to the second, third, fourth, fifth, and seventh pleas, and, in case the demurrers were overruled, reply to those pleas as if no demurrers had been filed, and that amended pleas, if desired, might be filed by the defendant, and in obedience to the order of court requiring the amended pleas to be filed on or before October 15, 1884, the defendant, on the 14th of October, 1884, filed amended third, fourth, fifth, and seventh pleas. ”

“ This, it seems to me, is a mistake of law, against which equity will give no relief. In re Griswold, 13 R. I. 125; Hunt v. Rousmaniere's Adm'rs, 1 Pet. 1, 15; U.S. v. Ames, 99 U.S. 35, 46; Hart v. Hart, 18 Ch. Div. 670; Snell v. Insurance Co., 98 U.S. 85; 2 Pom. Eq. Jur. § 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. ”

“ Law Dict. tit. 'Ne Exeat Regno;' Johnson v. Clendenin, 5 Gill. & J. 463, 481. In Re Griswold, 13 R. I. 126, determined September 20, 1880, Griswold, by petition, sought to be discharged from the bond in question on his principal's placing himself within the jurisdiction of the court, and subject to its orders and decrees. He seems to have proceeded, in that case, upon the ground that he was entitled, of right, to the order of discharge asked. ”

“ 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 demurred to the bill was sustained, and the bill dismissed, October 28, 1886, Judge CARPENTER delivering the opinion of the court. 28 Fed. Rep. ”