should be set aside, because the right turns out the one way or the other, than there is that a sale of merchandise should be held void, because, presently afterwards, prices rose or fell in the market.

But, in order to render an agreement valid as a compromise, it is necessary that the parties should have been fully apprized of the real character of the rights involved. Accordingly, if in the course of the transaction, they implicitly assume the law, on a given point, to be one thing, when, in truth, it is another, or if they regard rights that are doubtful, as settled, and those that are clear and settled, as doubtful, they mistake the law and the agreement is as liable to be set aside as any other. In the case of Gibbons v. Caunt,' the master of the rolls, sir Richard Pepper Arden, stated it as unquestionable doctrine, that in a court of equity, parties acting upon their rights, doubts arising as to those rights, will never be held bound unless they act with full knowledge of all the doubts and difficulties that arise. And lord Eldon, in a case of family settlement,* after having stated that the court would go a long way to carry into execution a reasonable agreement entered into by the parties in view of a doubt raised as to their rights, proceeded to say, his "difficulty was that there might be a supposition of right without a doubt upon it, that it would be too much to execute an agreement entered into on such a supposition if unfounded." And in a more recent case,3 the master of the rolls, sir John Leach, said that if a party acting in ignorance of a plain and settled principle of law, is induced to give up a portion of his indisputable property to another under the name of a compromise, a court of equity will relieve him from the effect of his mistake.

We do not, however, understand the test to be, at all,

14 Ves. R. 894.

2 Stockley v. Stockley, 1 Ves. & Bea. R. 23. 3 Naylor v. Winch, 1 Sim. & Stu. R. 555.

whether the principle of law be one that is plain, simple and generally known, or otherwise, provided it be one that is constructively settled and certain. It is not easy to perceive why a man should be relieved against a mistake of a plain and simple principle of law, and yet that relief should be denied him where he has mistaken a principle which is confessedly complex and difficult. A mistake in the former case might, with some plausibility, be argued to import negligence, but not so in the latter case. The main thing required is, that the party should have had his attention directed to the real difficulty of the case, and should have acted in contemplation of such difficulty, and that he should not have had his eyes blinded by imaginary doubts and difficulties;-in one word, it is, that he should have acted understandingly. The principle we take to be, and it is an extremely reasonable one, that he should have had an opportunity for the full, fair exercise of his judgment upon the whole matter, and should have intended to take upon himself the risk of passing finally upon it.

Cases of family settlements, so far as they involve the element of compromise, proceed upon the same principle as those we have just been considering. But the decision of them embraces also the material additional consideration of preserving the peace and harmony, and sometimes the honor of families. And, for these reasons, as has been said by lord Eldon, in family arrangements an equity is administered in courts of equity, which is not applied to agreements generally.' It is obvious, therefore, that cases of this description, and they are very numerous in the books, are not fairly adducible as authorities in a discussion of the general question, whether or not mistakes of law are relievable.

From this examination of the subject, on principle, the

1 Stockley v. Stockley, 1 Ves. & Bea. R. 23.

result at which we arrive is, that in cases involving no peculiar considerations, where a man has, through mistake as to his rights and duties, done or undertaken to do an act which he was under no obligation, legal or moral, to do, if he can be restored to his former condition without any infringement of the rights of others, it should be done. We may, hereafter, take occasion to inquire how the case stands on the ground of authority.

[To be continued.]

C. M.

JURISPRUDENCE.

1._DIGEST OF ENGLISH CASES.

COMMON LAW.

Selections from 1 Perry & Davison, Parts 2 & 3; 5 Bingham's New Cases, Parts 2 & 3; 4 Meeson & Welsby, Part 4; 7 Dowling's Practice Cases, Part 2; and 8 Car. & Payne, Part 4.

ARBITRATION. (Election of umpire by lot.) Where an umpire in an arbitration is chosen by lot, the assent of the parties to the umpire chosen does not make the election good, unless they know the manner in which he was chosen, and all the circumstances relating to his election. (3 B. & Ad. 248; 5 B. & Ad. 488; 4 Ad. & E. 945.) In re Greenwood, 1 P. & D. 461. 2. (Setting aside award on extrinsic facts.) An arbitrator, with the view of enabling one of the litigant parties to make an application to the court, after the publication of his award, stated matters which showed that he had put a mistaken construction on the rule of reference, and had misdecided accordingly. The court received affidavits of these facts, and set aside the award, although on the face of it there was no objection. Jones v. Corry, 5 Bing. N. C. 186; 7 D. P. C. 299.

3. (Authority of arbitrator.)

To an action commenced on the 27th of June, the defendant pleaded, by way of set-off, a claim against the plaintiff, which was not payable until the 1st August, although the consideration had been received by the plaintiff before her action was commenced. Under a judge's order,

dated July 27th, by consent of both parties, "all matters in difference between the parties, including the claim of the defendant in her set-off in the said action," were referred to arbitration: Held, that the claim made in the set-off was properly entertained by the arbitrator as a matter in difference, although not payable until after the date of the action and the judge's order. Petch v. Fountain, 5 Bing. N. C. 442. ASSUMPSIT. (Assumpsit or covenant.) The defendant, lessee of certain premises, granted and assigned them by indenture to the plaintiff; who being distrained upon for rent in arrear to the superior landlord before the assignment, brought assumpsit to recover the money paid under the distress, relying on an express promise by the defendant to repay it: Held, that as covenant would lie on the word grant, assumpsit could not be maintained on any implied contract to indemnify the plaintiff, not founded on a new consideration. (Hutton, 34; Cowp. 128; 2 Str. 1027; 2 T. R. 100; 3 B. & Cr. 789.) Baker v. Harris, 1 P. & D. 360.

2. (Consideration.) Where a deed of separation between the plaintiff and his wife had been drawn up, but not executed by him: Held, on error, (by Patteson, J., Alderson, B., and Littledale, J.-Lord Denman, C. J., and Lord Abinger, C. B. dissenting), that the petitioner's executing such deed was a legal consideration for a promise by the defendant to pay certain debts and expenses, for which the plaintiff was solely liable. Jones v. Waite, 5 Bing. N. C. 341.

BURGLARY. If a person commit a felony in a house, and break

out of it in the night-time, this is burglary, although he were lawfully in the house as a lodger. Reg. v. Wheeldon, 8 C. & P. 747. COVENANT. (For quiet enjoyment, by what words impliedHow restrained.) The word demise, in a lease, implies a covenant for title, and a covenant for quiet enjoyment; but both branches of such implied covenant are restrained by an express covenant for quiet enjoyment. (4 Rep. 80 b; 4 Taunt. 329.) Line v. Stephenson, (in error,) 5 Bing. N. C. 183.