Leggett v. Burkhalter

EisheR, J.,

delivered the opinion of the court.

This was an action upon an injunction bond, entered into by the defendants, in the Circuit Court of Covington county.

The court below sustained a demurrer to the complaint, on the ground that the bond is not conditioned for the payment of damages upon the dissolution of the injunction. The injunction was granted, for the purpose of restraining the plaintiff from further proceedings in an attachment, which had been levied upon certain real estate. As a pre-requisite to the issuing of the injunction, the complainants, the defendants in this action, were required to enter into bond, whereupon the bond now in suit was executed. In writing the bond, the draftsman made a mistake, by using the word “ attachment,” when tbe word “injunction” was intended. The question presented by the demurrer is, whether this mistake can be averred in pleading, and shown by proof on the trial.

It is now settled, that a mistake made in drawing a bond or other writing, may be shown in a court of law as well as in equity. The only difference is, that some mistakes can only be remedied in a court of equity, because the instrument must be reformed, so as to carry into effect the intention and contract of the parties. The mistake now in question, however, is one which may be corrected as well in a court of law as in a court of equity. Brown v. Gilman, 13 Mass. R. 161.

Judgment reversed, demurrer overruled, and cause remanded.