Opinion,

Tn the absence of evidence dehors the note in suit and its indorsements, the legal relation of defendant to plaintiff is that of payee and first indorser; and the note having been *248duly protested for non-payment, he is prima facie liable for principal, interest and costs of protest. To escape that liability defendant undertook to show that by mistake his name, instead of plaintiff’s, was inserted in the body of the note as payee; in other words, he assumed the burden of so reforming the instrument as to make plaintiff payee and first indorser instead of himself. Under our peculiar system of jurisprudence, this may sometimes be done, even in the case of a negotiable instrument; but the evidence that will warrant such reformation of the instrument, on the ground of mistake, must be clear, precise and indubitable. In such cases, the trial judge exercises the functions of a chancellor, and, unless the alleged mistake is so clearly and conclusively established that he would not hesitate to reform the instrument, the questions of fact on which the right to equitable relief depends should not be submitted to the jury.

In this case, it may be conceded there was some evidence tending perhaps in a slight degree to show the mistake alleged, but was it of such a clear, precise and indubitable character as would warrant a chancellor in reforming the note ? We think not, and therefore the learned judge erred in submitting the question of mistake to the jury.

Evidence was introduced tending to prove that the note in suit was given in renewal of a former note payable to the order of and indorsed by plaintiff, and the jury was instructed that if such was the fact, they might infer therefrom that the parties to the note in suit intended it should be filled and indorsed precisely as the former note was, and that by mistake it was not so done. In this we think there was error. The assumed fact, which the evidence tended to prove and which may have been found by the jury, did not warrant the inference they were permitted to draw therefrom. In view of all the testimony, the defendant failed to present such evidence of mistake as warranted the submission of that question to the Fry-

Judgment reversed and a venire facias de novo awarded.