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? 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 imperfectly 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 11 Bro. ch. 92. 21 Russ. & Nyl. 418. 31 Cow. 481; and see Sims v. Lyle, 4 Wash. C. C. 321. 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. suitable case, it would seem there would be no difficulty in doing this." 2 In a 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 1 Cheetham v. Ward, 1 Bos. & Pul. 630; see also Nicholson v. Revill, 4 Adol. & El. 675. 2 Com. Dig. Chancery, 3 F. 8; Harman v. Cam. Vin. Ab. Chancery, N. 3; 1 Story, Eq. Jurisp. 124. 3 See Joy v. Wirtz, 1 Wash. C. C. R. 407. VOL. XXIII.-1 25 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. 21 Pet. S. C. R. 1. of law, that the court thought, "if all other difficulties were out of the way, the equity of the general creditors to be paid their debts equally with the plaintiff, would be sufficient to induce the court to leave the parties where the law had placed them." There has been a more recent case' on the subject, in the supreme court, in which, it has been said, "the main question was, whether a mistake of law was relievable in equity, it being stripped of all other circumstances." It is admitted that mistake as to legal liability was the main ground on which the bill prayed for relief. But in the view which the court took of the case, we cannot concede that the subject of mistake was the main question, or that it was a material question, or even that there was any occasion for the court to consider it. In that case, a party had, in taking up a dishonored bill, included in the settlement ten per cent. damages on the amount of it, under the belief, as was alleged, that such damages were required by a statute of Kentucky; but according to the construction subsequently put upon that statute, it did not cover this case. The party now sought to be relieved from the amount of damages thus included. A preliminary and vital question was, whether the damages had been paid ;whether the transaction, at the time the original bill was taken up, was to be regarded as an actual payment of the bill and damages, or merely as a renewal of the security. The court held it to be a payment. This opened the way for two consequences, either of which was fatal to the whole case. In the first place, though the court were of opinion that the damages in question could not have been demanded under the statute, yet they considered the bill as subject to damages and reëxchange by the law merchants, and said that, in the absence of any proof to the contrary, 1 United States Bank v. Daniel, 12 Pet. 32. 21 Story, Eq. Jurisp. 154, note, (2d ed.) it must be presumed ten per cent. was a fair compensation. They thought, therefore, the plaintiffs had, at least, as high an equity as the defendant. Now, nobody supposes that money which is fairly and justly due, and which the other can honestly retain, can be recovered back, when once it has been paid. If, then, under such a state of facts, the money had been actually paid, there was an end of the case, at once. Another consequence of holding the transaction in question to be a payment, was, that as the bill in equity was not filed till more than eight years after that transaction, all remedy was, years before, irrecoverably gone, by the statute of limitation. Under these circumstances, admitting that there was a mistake, which, to say the least, is doubtful, we suppose that no mistake, whether of law, or of any thing else, could possibly help the defendant's case. The court, however, went into the subject of mistakes of law, and expressed themselves in terms sufficiently decided. But how, considering the language above quoted from the case referred to, they could have arrived at the conclusion, "that mere mistakes of law are not remediable, is well established, as was declared by this court in Hunt v. Rousmaniere, 1 Peters, 15," we confess ourselves wholly unable to divine. In view of this case, it has been remarked, that "so far as the courts of the United States are concerned, the question may be deemed finally at rest."1 If this be so, we cannot but regard it as exceedingly unfortunate, that an occasion for putting at rest a question confessedly so important, should have been sought in a case where there was so slight a demand for a decision of it. We will next notice the New York decisions on this subject. In Shotwell v. Murray,' the defendant having two judgments of different dates, sold the land of the debtor 1 Story Eq. Jurisp. 154, note, (2d ed.) 21 Johns. Ch. 512. |