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of the subject of mistakes of law. The idea of relieving against such mistakes, they discountenanced in most decided and unequivocal terms. In another case,” which, however, the court could not “consider as a case of mistake of fact or of law,” it was stated to be “now generally conceded, that the mistake must be a mistake of facts and not of law,” to entitle a party to recover back money. There have been a few cases relating to the same subject, in other states. Among other matters, this was much considered in a case in Alabama;” and the court expressed themselves strongly against granting relief on account of mistakes of law. There were several cases of the same kind. The plaintiffs believing they might, under a particular statute of the state, lawfully stipulate for any rate of interest that should be agreed on by the parties, had given their notes, bearing an exorbitant interest, and when their notes become due, had either paid them voluntarily, or suffered judgment to go against them without defence. Some years afterwards, it was decided, that the statute in question did not authorize an unlimited rate of interest in cases like these. Inasmuch as before the plaintiffs filed their bills for relief, their remedy at law was barred by the statute of limitations, and as they had a good legal defence at the time they paid the money; as no fraud was shown, and the notes had been paid in exact conformity to the original intention of all parties, the court held that there was no cause for interference. In Wheaton v. Wheaton,” a bill was filed to enjoin proceedings, in an action at law, on a note. The court said the mistake, if any, was simply that the plaintiff mistook the legal effect of a plain note of hand, and ignorantly supposed a note, payable by the terms of it in three years, to

* Mowatt v. Wright, 1 Wend. 355. * Jones v. Watkins, 1 Stew. 181. * 9 Conn. 96.

be in law a note payable at the death of the obligee, and then not to be paid, but delivered up to him as his share of his father's estate. They thought it would be not a little difficult to procure evidence of a mistake of such a character. We think so too. But if it could be done, it should seem the party would be entitled to relief under another kind of equity than mistake. In Pinkham v. Gear,’ chief justice Richardson regarded it as well settled, that no man can avoid his contract by an allegation, that he made it under a misapprehension of the law. By a mere allegation, without proof, undoubtedly he cannot. There are some other cases in which language is found favoring the doctrine, that mistakes of law are inexcusable. The subject, however, was so collateral and so slightly touched upon in them, that it is not necessary to do more than to refer to the cases.” What, then, is the conclusion to be drawn from the authorities on this side of the question ? We admit that, if those were the only requisites, there are cases enough, and the language found in some of them is strong enough to sustain any doctrine. But a very large proportion of that language was used, as we have endeavored to show, when it was not called for by the case under consideration; and, consequently, in point of authority, it rises little above mere dicta of the judges who used it. Many of the cases were confessedly put on other grounds, and most, if not all of them might have been;–for, undoubtedly, they were, in general, decided correctly, under the circumstances. We submit, on the whole, that in view of the reasoning on which the cases on this side proceed, and the variety of other considerations which entered into them all, rendering the question of mistake commonly quite a subordinate one in the actual decision, the language they hold is not sufficient to establish a doctrine, the effect of which, if it were carried out into practice might, and often would be, to take one man's property from him and give it to another. There are not decisions directly upon the point, to make out the doctrine. And we think it can be shown, that even those judges, who have been esteemed its greatest champions, and on whose authority it most rests, Mr. justice Buller, for instance, and lord Ellenborough, the duo fulmina belli on that side, did not hold the unqualified doctrine that mistakes of law can never be relieved. That very opinion of the first named judge, in Lowry v. Bourdieu, carries with it at once its bane and antidote. For, while he says, if the law was mistaken, the rule applies, ignorantia juris non excusat, he, at the same time, lays great stress on the circumstance that the contract was executed; the risk, such as it was, having been completely run. But, he says, had the plaintiffs brought their action before the risk was over, and the voyage finished, they might have had a ground for the demand. Yet the money would have been paid equally under a mistake of the law. - This view of Mr. justice Buller's opinion on this subject, is greatly confirmed by what he said in the case of Malcolm v. Fullerton." There the defendant had paid a sum of money to the plaintiffs, who brought this action to recover a further amount, which they claimed as due. Afterwards, it was agreed to refer all matters in dispute to an arbitrator, who awarded a certain sum to be paid by the plaintiffs to the defendant. Mr. justice Buller held, that the defendant was not bound by the payment

3 New Hamp. 163. w

* See Hepburn v. Dunlop, 1 Wheat. 179; Elliott v. Swartwort, 10 Pet. 137; Brown v. Armistead, 6 Rand. 593; Williams v. Hodgson, 2 Har. & Johns. 474; Dickens v. Jones, 6 Yerg. 483; Hubbard v. Martin, 8 Yerg. 498; Buttle v. Griffin, 4 Pick. 6; Ladd v. Kenney, 2 New Hamp. 340; Norton v. Marden, 3 Shepley, 45.

1 2 T. R. 645.

made by him, it having been made by mistake. The precise nature of the mistake, further than that it was a mistake in respect to the party's obligation to pay the sum demanded, does not appear. Nor is it material for our present purpose; for the learned judge added, “the only payment by which a party is bound, is that which is made into court under a rule of court. That is a payment on record, and the party can never recover it, though it afterwards appear that he paid it wrongfully; but that does not extend to payments between party and party.” From this rule, qualified as it fairly is by the concluding clause, we infer the opinion of sir Francis Buller to have been, that money paid by one party to another, without obligation, may, in a case where justice requires it, be recovered back. That lord Ellenborough did not regard it as a rule of universal application, that mistakes of law are irremediable, is proved by what he said in the case of Perrott v. Perrott. In that case, Mrs. Territt had executed a deed appointing the disposition of certain property; but afterwards, having made her will, referring to that deed, had cut off her name and seal from the deed, saying at the time, that the purport of it was fully met in her will. The court decided at once that the deed was revocable, but they took time to consider what lord Ellenborough said was the only question with them, “whether her having cancelled the deed under a mistake in point of law, as to the effect of her will, which she supposed would operate to the same purpose as the deed, would be an effectual cancellation.” Afterwards, his lordship, in delivering the judgment of the court, said, “Mrs. Territ mistook either the contents of her will, which would be a mistake of fact, or its legal operation, which would be a mistake in law; and in either case we think the mistake annulled the cancellation.” And he added, that, it being clearly established that a mistake in point of fact may destroy the effect of a cancellation, it seems difficult, upon principle, to say that a mistake in point of law should not have the same operation; and he cited the case of Onions v. Tyren,' as a strong authority that a mistake of law may have that effect. It appears also clearly that these same judges did not consider the rule in question as applicable to executory contracts. In Lowry v, Bourdieu, Mr. justice Buller said, there is a sound distinction between contracts executed and executory; and he intimated pretty distinctly, that in that case the money might have been recovered back, had an action been brought while the contract was executory; though in lord Ellenborough's estimation, it was paid “under a mere mistake of law.” In Herbert v. Champion,” an underwriter, upon a full disclosure of facts, had made an adjustment on a policy of insurance, and signed a promise to pay the amount of the loss. Lord Ellenborough said, “that when upon a dispute the money is paid, it cannot be recovered back without proof of fraud; but a promise to pay will not, in general, be binding, unless founded on a previous liability. An underwriter, until he has paid the money, is at liberty to avail himself of any defence which the facts, or the law, of the case will furnish.” The distinction taken in this case is noticed with approbation by Mr.justice Gibbs.” Now, an adjustment with a promise to pay, lord chief justice Lee* “considered as a note of hand;” and Mr. sergeant Marshall says, “this, like a note of hand, is prima facie evidence of a debt.” Yet lord Ellenborough, Marshall, and - Kenyon," all agree that an adjustment may be impeached

* 14 East, 422.

l 1 P. Wms. 343. * 1 Camp. 134.
* In Brisbane v. Dacres, 5 Taunt. 143.
* Hog v. Gouldney, Beaw. Lex. Merc. 311.

* Marsh. Ins. 634.
* Rogers v. Maylor, Park, Ins. 163; Christian v. Coombe, 2 Esp. 489.

3.

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