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ment or imposition on either side, although the parties may have greatly misunderstood their situation, and mistaken their rights, a court, of equity will not disturb the quiet which is the result of the arrangement. But where the transaction has been unfair, or there has been a mistake, though innocent, and the other party was accessory to it, or if what one knew, has been concealed from the other, who has thereby been misled, the court will interfere and set aside the agreement." In that case, as well as in Dunnage v. White,” the agreement was rescinded. The cases where agreements have been sustained as family arrangements are numerous.” Independent of cases of the kinds just mentioned, the English equity reports will be found very meagre in authorities, to show that relief will not be granted against mistakes of law. Mildmay v. Hungerford “ would seem to be an authority to that point, but the report gives only the bare result at which the court arrived, without stating at all the ground on which the decision proceeded. Frank v. Frank" is sometimes cited to the same purpose. That, however, is commonly considered a case of family compromise," and, besides, its authority has been seriously questioned." In Goodman v. Sayens,” the master of the rolls, sir Thomas Plumer, stated it as “admitted, that at law it is impossible to recover, after a voluntary payment with a knowledge of all the facts, though under a mistake

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v. Neale, 1 Keen, 672. 42 Wern. 243. * 1 Cas. in Ch. 84. * See 1 Story, Eq. Jurisp. 147. note (4). 1 Swanst. 153. 7 Per lord Manners in Leonard v. Leonard, 2 Ball & Beat, 171. 8 2 Jac. & Walk. 249.

in point of law.” As that was a case of a bill to set aside an award, on the ground of partiality and misconduct of the arbitrators, and there was no pretence of a mistake of law, there would seem to have been no very urgent call for the remark, whether it be correct or otherwise. In Marshall v. Collett,' the plaintiff had joined in a sale of certain stocks, supposing herself entitled to only one third of them, and a life interest in the residue ; but she afterwards claimed the whole as her absolute property, and alleged in her bill, that she entered into the contract of sale under a misconception of her rights. Lord Abinger held, that she was not entitled to the whole, and said it was not necessary to go into the other part of the case. He, however, proceeded to state it as a maxim of equity, that contracts shall not be set aside on account of mistakes of law, though they will be for mistakes of fact. So far as that case was concerned, the statement of any such rule was, obviously, not demanded.

There are cases where the parties having in view a particular object, have misjudged the legal effect of the means or instruments chosen for the accomplishment of that object. In such cases, the courts have refused to interfere, on the very satisfactory ground, that it is not their province to make contracts for parties, but to effectuate those which the parties have made for themselves. Where there has been a mistake in drawing up an instrument, so that it does not express truly the terms of the actual agreement, courts of equity may make the instrument what it was intended to be; but they cannot give to an instrument, which is the very one, and precisely what the parties intended it should be, a legal effect with which the law has not clothed it; nor can they substitute in its stead another instrument having a different effect.” In these cases, it may have been the misfortune of the party affected, not to have done something different from what he actually did; but it does not follow, therefore, that the court is to do that something for him. It is not, however, because the mistake is a mistake of the law, that relief is refused. If it were a mistake of fact, it would be equally fatal, in a similar case. Suppose a man, at an auction, intending to purchase a certain article, bids for it, and actually believes it to rest upon himself as the highest bidder; but it is struck off to another of whose bid he chanced not to be aware. Could any court say he should have the article, nevertheless 2 Clearly not. Yet he intended to have it, and verily believed he had taken the proper steps to secure it. It was his misfortune to have been under a mistake. Among cases of the kind referred to, may be mentioned that of lord Innham v. Child," in which the parties would have introduced into their agreement a certain clause, but omitted it from an erroneous impression as to the effect of its insertion; Cockerell v. Cholmeley,” where a power was impersectly executed; Dickerson v. Gilliland,” in which a party had failed to perform a condition precedent; and, especially, the case of Hunt v. Rousmaniere," in which the instrument selected, as things turned out, proved inadequate to accomplish the end designed. In substantially the same condition are cases where an obligee has released one of two joint and several obligors, supposing that the other would remain bound. Here, the act of release has a different effect from what the party contemplated. He intended merely to discharge one of the obligors; the effect is to discharge both. For, as was stated by chief justice Eyre, there is but one duty extending to both obligors, and a discharge of one, on satisfaction made

* 1 Younge & Coll. 232. * See Underhill v. Howard, 10 Wes. 209; 1 Story, Eq. Jurisp. 128.

1 1 Bro. ch. 92. * 1 Russ. & Nyl. 418. *1 Cow. 481; and see Sims v. Lyle, 4 Wash. C. C. 321. * 2 Mason, 342; 8 Wheat. 184; 3 Mason, 294; 1 Pet. S. C. R. 1.

by one, is a discharge of both." By the release of one of the obligors, the contract becomes essentially a different one from that which was entered into by the remaining obligors. So long, therefore, as the release continues in force, it is impossible for any court to obviate its regular legal, effect. Accordingly, it is laid down that, in such a case;"a court of equity will not enforce the contract against the remaining obligors.” But whether the release should not be set aside by a court of equity, in a case of this kind, is a question which should depend on the general equity, and all the circumstances of each particular case. In a suitable case, it would seem there would be no difficulty in doing this.” In the case of Hunt v. Rousmaniere, which, in its various stages, afforded occasion for an ample discussion of the subject of mistakes of law, the parties had intended to secure the repayment of a loan of money, by means of a lien on certain vessels. For this purpose, the debtor executed a power of attorney, authorizing the creditor to sell his interest in the vessels. While things were in this state, the debtor died, and thereby the power of attorney became extinguished. During the lifetime of the parties, the instrument chosen was a good and effectual instrument for the object contemplated. But it was designed to be a valid security in every event, and in implicitly assuming that it would be such, the parties mistook its true legal force. There was, then, a mistake of law, which was at the bottom of all the difficulty. - But that mistake lay too far back in the transaction, to be reached by any court. Nothing could be done, without absolutely making a new contract

* Cheetham v. Ward, 1 Bos. & Pul. 630; see also Nicholson v. Revill, 4 Adol. & El. 675.

* Com. Dig. Chancery, 3 F. 8; Harman v. Cam. Vin. Ab. Chancery, N. 3; 1 Story, Eq. Jurisp. 124.

* See Joy v. Wirtz, 1 Wash. C. C. R. 407.


for the parties. They had agreed, not that a security should be given which should be valid under all circumstances, though they meant to have such a one; but their agreement was, that a power of attorney should be given, which, they erroneously supposed, would accomplish their purpose. The actual agreement of the parties was fully effectuated. But the instrument selected had not the legal force they attributed to it. They meant it to be an instrument, which should possess an inherent energy; in this event, it proved perfectly impotent. Here, then, was a certain thing to be accomplished. There must be an agent or instrument to accomplish it. The parties had failed to provide such an instrument, and it is wholly immaterial, as to the results, whether they had a better or a worse excuse for failing so to do. The consequence must be, that the thing could not be done, for there was nothing to do it. In delivering the opinion of the court,' chief justice Marshall evidently inclined to the doctrine, that mistakes of law may be a proper subject for relief. And his remark that “we find no case in which it has been decided that a plain and acknowledged mistake in law is beyond the reach of equity,” we consider important, as it goes to show what, in his opinion, had not been decided by the cases up to that time. When the case came again before the same court,” Mr. justice Washington, who delivered the opinion of the court, manifested a decided bearing against affording relief in cases of a mistake of law, generally; but he said expressly, “it is not the intention of the court, in the case now under consideration, to lay it down that there may not be cases, in which a court of equity will relieve against a plain mistake, arising from ignorance of the law.” Besides, it would seem to detract very much from this case as an authority against granting redress on account of mistake

18 Wheat. 174. * 1 Pet. S. C. R. 1.

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