The opinion of the court was delivered, May 10th 1862, by

The plaintiff’s counsel abandoned on the argument here nearly all the assignments of error that appeared in the paper-book, and argued the case entirely on its merits. Yet we find it not very easy to pick out the merits from such a complication of objections, and the court below must have been very much embarrassed by them, and was possibly diverted by them from the real merits of the case. We do not say this in blame of the honourable and able counsel concerned in the trial, for most sincerely, we honour them too much to do that, and they were seeking nothing but justice. Counsel invariably take a party view of their case, often an extreme party view, and they are quite liable to fail in appreciation of the position of the judge, who, in seeking the very merits of the cause, naturally slights all undue refinements in the process of investigation.

The rules of practice in all kinds of business must have the same fundamental qualities of necessity, adaptedness, and adaptability. The carpenter has half a dozen bench planes for the same .general purposes (besides many others for special purposes), and there can be no perfectly precise rides of discrimination in the use of them, and he may change the set of their bits at pleasure, *517within the bounds of reasonable fitness. No business could get along without this. And in a case like this, where the parties have made their bargain in an anomalous form, we cannot expect to make a good job out of it by a strict adherence to rules of practice that are intended to be applied to regular transactions. We must not make precision of practice of more value than justice, and courts have often said so. We have just happened on a case where Lord Mansfield declares his disapprobation of “objections” which have no relation to the merits of a cause, 5 Burrows 2827; and the Romans had a standing maxim in their law that required legal forms to yield to the evident equity. JEtsi nihil facile mutandum est ex solennibus, tamen, ubi equitas evidens poscit, subveniendum est: Dig. 50, 17, 183.

The questions on the merits of this cause are fully expressed in the first and third points submitted by the defendants’ counsel.

No doubt this ore-bed belonged to the plaintiff for life, with reversion to her son-in-law Ritter. No doubt he sold the ore-bed to the defendants at twenty-five cents a ton, by a writing signed and sealed by him, and we presume that she agreed to the sale. She is therefore estopped from repudiating that sale, if the defendants work the ore-bed in good faith. Equity estops her because she would wrong them by withdrawing her consent. But it does not estop her from a claim that does them no wrong; and such is her claim, that the price shall be paid to her during her lifetime; she asks no more:

There is nothing to estop her from setting up her claim to the ore and the profits of it as against Ritternor any sort of legal evidence that she has parted with her title to him. No doubt she did allow him to receive half the profits for several years ; but that does not give him title, and it is hardly decent for him to insist on it as such. We discover nothing that prevents her from revoking that arrangement. It is quite evident that the defendants knew of her title, and of this arrangement between her and her son-in-law about the price of the ore. Possibly they may have litigation with Ritter also, but if they had drawn their agreement for the ore according to the title, they would have been saved from this. But they are not estopped by the form or nature of the agreement from disputing his title to the profits during her life, after she has given them notice that she claims them all for herself. It is quite apparent that she did give such notice in December 1857, and thus revoke the benefit intended for Ritter ; and all .payments after that to him during her lifetime are mispayments, unless he can show some better title than appears in the evidence. So far as. her life estate is concerned, that notice is a good revocation of Ritter’s authority to receive the price of the ore. Equity still binds her to respect the defendants’ title so long as they respect her right to the price.

*518Her suit for the price is in general assumpsit, and we suppose that nearly all the complications of the case have arisen from an apprehension that the plaintiff might be defeated in this form, and are to be taken as abundant cautions against it. It is argued that because the defendant holds under the deed from Ritter, the suit must be on that. But in fact the defendant does not hold the,plaintiff’s title, but only Ritter’s under that deed. It is by an equitable estoppel that her title is held, and equity estops the plaintiff only on condition that the defendant shall do equity to her. It therefore gives her the equitable action of assumpsit for her remedy, or a bill in equity for an account, if that does not answer. It treats her as selling the ore, and the defendants as contracting to pay for it; and we can find no fault with the form of the action.

This view of the case meets all the important questions raised upon the charge of the court, and sets aside most of the questions of evidence as being of no value. The receipts given by Ritter, before the notice to pay no more to him, seem to be of no importance, because the plaintiff claims for no part of that period, and the receipts by him since are quite irrelevant. It was well enough to show Ritter’s title; it helps to understand the transaction. All the evidence of estoppel seems to be useless, because, by her action, the plaintiff admits herself estopped before the notice. It seems like quite an unnecessary strictness to reject the answers of the defendants’ clerk to the notice sent by the plaintiff; but the notice itself was all that was important. We do not discover anything else in the case that requires any special notice. These views substantially affirm the plaintiff’s tenth and eleventh points, and they ought to have been affirmed below, so far as they affect this case.

Judgment reversed, and a new trial awarded.