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

12 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.

The court decided at once

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.1 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. 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

14 East, 422.

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.3 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

4

1 P. Wms. 343.

3 In Brisbane v. Dacres, 5 Taunt. 143.

Hog v. Gouldney, Beaw. Lex. Merc. 311.

5 Marsh. Ins. 634.

* 1 Camp. 134.

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

by the underwriter, by showing it to have been made under "any misconception of the law or of facts." How this doctrine, and especially, how the language of lord Ellenborough in Herbert v. Champion is to be reconciled with the decision of the court in Stevens v. Lynch,' we are not concerned to inquire.

We will now advert to the authorities on the other side of the question. In Farmen v. Arundel, which was an action for money had and received, chief justice De Grey said, "where money is paid on a mistake either of fact or of law, or by deceit, the action will certainly lie." It has been said that the case not only did not call for the dictum, but is in direct hostility with it. That might be so, if you took the rule without the qualification expressly stated in connection with it, that "the proposition is not universal, but money due in point of honor or conscience, though a man is not compellable to pay it, yet if paid shall not be recovered back." The decision of the case, so far from being inconsistent with the whole doctrine thus laid down, is strictly conformable to it. For, without deciding that the payment of the money could not have been enforced even by the defendant, the court considered it an honest debt; and, therefore, on their rule, it could not be recovered back, whether it could have been originally demanded or not. To say the least, the language used in this case fairly implies that the court knew of no such rule as that mistakes of law are irremediable.

Ancher v. The Bank of England,' is an authority on the same side. There the plaintiffs had drawn a bill in favor of a person who endorsed it in certain terms, but after its ac

1 12 East, 38. As to the distinction between contracts executed and exe

cutory, see also Read v. Long, 4 Yerg. 68; Burn v. Winthrop, 4 John. Ch.` 329; Ellison v. Ellison, 6 Ves. 662.

22 W. Blacks. 824.

4 2 Dougl. 637.

3 In Clarke v. Dutcher, 9 Cow. 674.

ceptance a forged endorsement, in favor of the party to whose credit the bill was to be set, was written upon it, and it was discounted by the defendant in the ordinary course of business. When the bill fell due, the acceptors having become insolvent, a friend or agent of the plaintiffs paid it for their honor, as drawers. The forgery having been discovered, the action for money had and received was brought, on the ground that the bill was not negotiable by reason of the first endorsement being restricted, and that it was, therefore, discounted by the defendants in their own wrong, and the money to take it up paid by mistake. The case was treated as if the plaintiffs had paid the bill themselves, they having adopted the act of the person who paid it. It was not denied that the money could not, simply on the ground of the forgery, be recovered back from an innocent endorsee. But lord Mansfield said, "the whole turns on the question whether the bill continued negotiable;" and he and two of the other judges held, that its negotiability was restrained by the first endorsement. Mr. justice Buller thought otherwise. The first endorsement being thus held restricted, it was the negligence of the defendants to have discounted the bill, and the plaintiffs were under no legal obligation to pay it. The money, however, had been paid, and the plaintiffs were allowed to recover it back. We consider this a plain case of a payment made under a mistake of the law, on a misapprehension of legal liability. The right to recover was put expressly upon the ground of mistake, and there was no pretence of any mistake of the facts, unless it were in respect to the forgery of the last endorsement, and that was immaterial, since the first being restricted, a subsequent one, though genuine, would have been equally ineffectual to charge the drawers.

In Bize v. Dickason,' we find laid down by lord Mans

11 T. R. 285.