sequence. But they are very likely to go together, and, we apprehend, a case would seldom actually arise, involving the one without the other also. Mistake almost necessarily presupposes ignorance, and originates in it. A man believes the law to be one thing, when, in truth, it is another. He could never have made the mistake, had he not been ignorant as to what the law really was. So, mere ignorance of the law could scarcely do any one positive harm, unless, when called upon to act, he should mistake the law. For, if without knowing what the law is, he do the things required by the law, he is safe. But if, unawares, he get out of his way, he may be said to have mistaken the law; for though he may never have gone through with a formal course of reasoning on the subject, or even have directed his thoughts particularly to it, yet, for the most part, he acts on a sort of implicit belief that the law is thus or so, and if it is otherwise, he is really and truly under a mistake.

The question as to the effect of mere ignorance of law, may arise in cases of compromise, and, so far as we are able to perceive, that is the only class of cases in which it can arise. There, the parties professedly regard their rights as doubtful, and act on that basis. They cannot be said to have been under a mistake, let the law turn out to be as it may; for they never pretended to know what the law But when parties act, either expressly or tacitly, on the undoubted belief that the law is so, when really it is otherwise, that is properly a case of mistake.

was.

Our view of the matter, therefore, is that ignorance is the source in which mistake originates, while mistake, thus caused, is generally the immediate ground on which the claim for relief proceeds; so that a case demanding relief will seldom arise, in which both do not concur.

From what we have said, we would not be understood as advocating the doctrine, that relief should always, and as a matter of course, be granted whenever there has been a mistake

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of law. That is not so in respect to mistakes of fact. instance, if a man, though under a misapprehension as to the facts of a case, has done what he was legally or equitably bound to do, he cannot, on the ground of his mistake, have his act set aside. He has done what it was his duty to do, and, probably, what he intended,―certainly what he ought to have intended to do. Under similar circumstances, the result would be exactly the same, had the mistake been one of law. What we mean to say is, that a mistake in point of law, should never be made to one man an obstacle to his retaining or recovering what is honestly his own, nor to another an instrument for protecting or enforcing an unrighteous advantage.

The true principle we believe to be that which was laid down by Lord Mansfield, in the case of Bize v. Dickason; ' namely, that if a man has actually paid what the law would not have compelled him to pay, but what in equity and conscience he ought, he cannot recover it back. But where money is paid under a mistake, which there was no ground to claim in conscience, the party may recover it back again. The same principle is applicable in deciding whether one shall be bound or not, by any other act he may have done, under the influence of a mistake as to his rights and duties. On this doctrine we stand secure as upon the rock of eternal justice.

Even Mr. Justice Gibbs, who, we may say, is the only English judge who has undertaken to go into any thing like an elaborate argument in support of the position, that mistakes of law are irremediable, was constrained to do homage to this so just and reasonable doctrine, by suggesting that the case then before him fell within the rule, and that it was not against conscience for the defendant, in that action, to demand and retain the money. The only case,

11 T. R. 285.

* Brisbane v. Dacres, 5 Taunt. R. 143.

so far as we know, in which the doctrine of lord Mansfiled has been expressly controverted, is that of Clarke v. Dutcher. If, asks the judge who delivered the opinion of the court in that case, money paid under a mistake of the law can be recovered back in all cases where the party to whom it is paid, is not in conscience and equity entitled to it, what is the practical distinction between a mistake in fact and a mistake in law? Precisely, we think, what, in principle, the real difference between the two is, that is, nothing at all. And he seems to regard it as a thing exceedingly to be deprecated, that the inquiry, in every case, should be, whether the party to whom the money has been paid can in equity and conscience retain it. Commend us to such tests. They are an honor to the law and to human And we think this same learned judge pays but a very equivocal compliment to the courts, when he states that the principle on which they refuse to relieve against mistakes in law is one which steers entirely clear of the conscience or equity of the transaction. It is this; that “in judgment of law there is no mistake; every man being held, for the wisest reason, to be cognizant of the law. The act, therefore, against which the party seeks relief, is his own voluntary act." It is past all controversy, that this same principle simplifies mightily; it solves all matters of error at a single breath.

nature.

A question has been sometimes made, whether, so far as the effect of a mistake of law is concerned, there is any distinction between contracts executed and executory. That will depend on the circumstances of each individual case. A man who has done an act which he was in conscience, though not in law, obligated to do, will be bound thereby ; whereas, there may be cases of a like kind, in which a mere agreement to do the same act could not, on general

principles, be enforced for want of a sufficient legal consideration. But where the act was one which the party was under no obligation, either legal or moral, to perform, there, as the other has no right to demand a performance of the act, it would seem that he could have no right to enjoy the benefit of the act when performed. Thus, if it would be unjust, in a given case, for a man to require of another the payment of money, it would be equally unjust for him to retain the money, if he had got it into his hands. If the property is where it rightfully belongs, there it should be allowed to remain; if it has come into the possession of one who has no right to it, justice no less requires that it should return to its true owner.

Doubtless a party would ordinarily stand a better chance to succeed in resisting the execution of a contract, than in obtaining relief against one that had been fully executed. In the one instance, he acts merely on the defensive; in the other, he has to make out his case affirmatively, and that under some disadvantages. But if he can do it satisfactorily, nevertheless, why should he not be held entitled to relief? In regard to executory contracts, notwithstanding the broad and sweeping language which has sometimes been used, we do not believe there is a court in christendom, that would, at this day, enforce a simple contract founded solely on a clear and admitted mistake of law. Such an agreement has plainly no legal consideration to support it. On that ground of itself, therefore, it is utterly void. And that any court should violate the settled principles of law, for the sake of aiding a man to enforce an unrighteous claim, is a thing not to be supposed.

In order, however, to make out a case for relief, on the ground of mistake, the circumstances must be such, that the parties can be placed substantially in statu quo. Accordingly, if one, under the influence of error, has entered into an agreement prejudicial to his own rights, and the

other party, acting on the basis of that agreement and in good faith, has acquired new rights of his own, which would be really and essentially injured by annulling the agreement, we do not see how, at law, any redress could be afforded, nor in equity, unless it were a case in which compensation could be made. It is fit and reasonable, that a man who has, by his own act, put his rights in jeopardy, should hold them in subordination to the rights of others, who have done nothing to subject themselves to loss.

There are, also, certain classes of cases, involving peculiar considerations which render them, in some degree, exceptions to the general doctrine. Such are cases of compromise and of family agreements. In a case which is really one of compromise of a doubted and doubtful right, as we have suggested, there can be no such thing as a mistake, properly so called. Indeed, it may be said, that in such cases the parties have done precisely what they intended to do, which was, to take upon themselves each his chance of gaining or losing by the arrangement, according as the law should prove to be one way or the other. And if they are content so to do, there is no reason why they should not close the controversy by dividing the stake, in such manner as they shall deliberately agree upon. The value of a doubtful right is as fair a subject for a man to exercise his judgment upon, as is any thing else. The sale or purchase of such a right proceeds on the same principle with sales and purchases in general. Men do not always know the exact value of the articles they sell or buy. All they can do is, to decide what, under all the circumstances, they are willing to give or take for a particular thing; which may be more or less than its real value to them or to some one else, or than its market price, if it has one. Now if two individuals, standing on equal terms, have fairly and deliberately entered into an agreement respecting a right that is really doubtful, there is no more reason why their act