Law Library University of Chicago, field, in its amplitude and exactness, substantially the same doctrine as that stated by chief justice De Grey in Farmer v. Arundel. "The rule," lord Mansfield says, "has always been, that if a man has actually paid what the law would not have compelled him to pay, but what in equity and conscience he ought, he cannot recover it back;" and he instances the case of a debt barred by the statute of limitations, or contracted during infancy. "But," he continues, "where money is paid under a mistake, which there was no ground to claim in conscience, the party may recover it back." But Mr. justice Gibbs' cannot think lord Mansfield said "mistake of law." Unquestionably he said "mistake;" and of what kind the mistake was, may, perhaps, be determined as safely from the case itself, as from the conjectures of learned judges, drawn from extrinsic circumstances, to suit preconceived opinions. The plaintiff had paid a sum of money to the defendants, assignees of a bankrupt, without claiming, as he might have done, the right to set off against the demand which was due to him from the bankrupt. He now brought an action to recover back this latter amount, as paid under a mistaken idea, without making the deduction; and he was allowed to recover. The rule stated in this case, Mr. justice Gibbs' spoke of as "lord Mansfield's dictum." We consider it a solemn decision of the court of king's bench, directly to the point, that money paid under a mistake or misapprehension of legal rights and liabilities, when it was not justly due, may be recovered back. 2 Perrott v. Perrott, which is a strong authority to the point that mistakes of law are relievable, we have already sufficiently considered. The case of Daw v. Parsons,' is by no means an unimportant one in this connection. That was 1 In Brisbane v. Dacres, 5 Taunt. 143. 3 2 B. & Ald. 562. 2 14 East, 422. an action by a sheriff to recover fees for official services. The defendant's clerk had previously paid the plaintiff, on his demanding it as of right for other services, a sum which the defendant regarded as exorbitant, and he now claimed to set off the whole or a part of the sum thus paid. The fees in question were no higher than had, for many years, usually been paid in that county. The plaintiff took the position that this was a payment made with a full knowledge of all the facts, though under a misapprehension as to legal liability, and could not be recovered back, and so was not the subject of set-off. The plaintiff was nonsuited, and on a motion to set aside the nonsuit, chief justice Abbott said this was in substance like an action by the sheriff to recover his fees, and if he did not make out his title to them, the defendant would be entitled to set off the sum which had been overpaid. There are several cases in equity much in point, on the same side. Turner v. Turner,' decided by lord Nottingham, seems to be a direct authority in favor of granting relief against mistakes of law. But the circumstances of the case and the grounds of the decision are not so distinctly stated, that much reliance can, perhaps, be safely placed on it as an authority. 2 In Lansdowne v. Lansdowne "a bond and indentures, obtained by mistake and misrepresentation of the law, were ordered to be given up to be cancelled." That case arose out of a controversy between the defendant's father, who was the youngest and the sole survivor of four brothers, and the plaintiff, the son and heir at law of the eldest of the four, respecting the right to the estate of the third brother; and the controversy was settled by an agreement to divide the property. The case is cited, in the English books, without 1 2 Rep. in Ch. 154. * Mosley, 364, 2 Jac. & Walp. 205. S. C, 2 any intimation of doubt as to its authority.' It has, however, been sometimes questioned in this country, and particularly by the supreme court in the case of Hunt v. Rousmaniere. It would have given additional weight to their criticisms, had that learned court shown a fresher recollection of the circumstances of the case. They say the plaintiff acted under the pressure of an award. But Hughes, whom the justices consulted, did not act as an arbitrator; he only gave an opinion, and in that opinion he had so little confidence that he advised them to take further counsel. The suggestion that the plaintiff might have been ignorant of the fact that he was the eldest son, or rather the heir at law of the eldest of the four brothers, besides being extremely improbable in itself, would seem to be pretty satisfactorily met by the reason assigned by Hughes for his opinion, namely, that lands could not ascend. The case appears to have been one of compromise of a double right, but that right was not in reality doubtful. And here lay the mistake, which was a mistake of the law. The parties assumed as doubtful, a right which was perfectly clear, and their agreement proceeded on the ground of this mistake. In this view of the case, the decision is in entire accordance with the doctrine stated by the master of the rolls, sir John Leach, in a recent case.' If such an acquirement as this was capable of being sustained at all, it must have been as a family arrangement, but such it could scarcely be considered. In the case of Pusey v. Desbouvrie, a freeman of London, having a wife, son and daughter, in his will gave his daughter £10,000 on condition that she should release her orphanage part, and all her claim on his estate by the custom of London or otherwise, and made his son executor. 1 See Jeremy on Eq. Jurisd. 366; Newland on Contr. 432; 2 Powell on Contr. 196; 1 Madd. Ch. Pr. 74; 2 Ball & Beat. 184, note (a). 21 Pet. S. C. 1. 3 Naylor v. Winch, 1 Sim. & Stu. 555. VOL. XXIII.-NO. XLVI. 26 4 3 P. Wms. 315. After the father's death, the daughter accepted the legacy, and executed a release, her brother having previously informed her that she was entitled to have an account taken of her father's personal estate, and to claim her orphanage part. But she declared she would accept the legacy, saying that was a sufficient provision for any young woman. The plaintiff, however, whom she afterwards married, it seems thought otherwise, and he filed a bill to have the release set aside, alleging that the mother having been compounded with, and the son fully advanced in his father's lifetime, the daughter was entitled to one half of her father's personal estate, which half amounted to upwards of £40,000; and he insisted that the release ought not to be used, in a court of equity, to bar the daughter of that right which she did not know she herself had, and much less intended to give away. To this it was replied, that the daughter had executed the release freely and without any misrepresentation, and that if she was not informed of the custom of London, it was her own fault and not that of her brother. Here, then, was an issue directly upon the point, whether or not she was chargeable, at her peril, with a knowledge of her own rights. Lord chancellor Talbot said, he did not see that any fraud was made use of, but still it seemed hard that a young woman should suffer for her ignorance of the law or of the custom of London, or that the other side should take advantage of that ignorance. And, he observed, if the courts themselves had not, till very lately, agreed in what proportions these customary parts should go, the daughter surely might well be ignorant of her right, and ought not to suffer, or give others any advantage by such her ignorance. This is the plain, honest, common sense view of the matter, and it does not much countenance the idea, that lord Talbot considered every body chargeable with legal infalliblity. Lord Hardwicke once said, "where parties are at liberty 4 to surcharge and falsify, they are not confined to errors of fact, but may take advantage of errors of law." And in the case of Penn v. lord Baltimore," as we are told by chief justice Shippen,' who was present at the argument, lord Hardwicke said, if lord Baltimore had made the argument in question under a mistake of his right to another degree of latitude, he ought to be relieved. In another case, where the mistake originated in a want of skill in drawing a bond, and ignorance, probably, of the legal effect of the instrument, the same learned chancellor spoke of mistake, generally, as "a head of equity on which the court always relieve." From this language of lord Hardwicke, it would seem he was not aware of any such inflexible rule as that mistakes of law are never remediable. What he said in Pullen v. Ready, is not inconsistent with this view; for, besides that the case was one of family arrangement, the court were asked to set up a forfeiture, which had been waived by the parties. 5 In Brigham v. Brigham, the plaintiff had purchased of the defendant, land which was his own already under a devise. The plaintiff alleged in his bill, that he purchased the estate, being ignorant of the law, and persuaded by the defendant and his scrivener and conveyancer, that the devisor had no power to make the devise. The defendant replied, that the plaintiff should have been better advised before he parted with his money. The master of the rolls, sir William Fortescue, sitting for lord Hardwicke, decided in favor of the plaintiff; "for though no fraud appeared, and the defendant apprehended he had a right, yet there was a plain. mistake, such as the court was warranted to relieve against, and not to suffer the defendant to run away with the money 1 Roberts v. Kuffin, 2 Atk. 112. 2 Reported in 1 Ves. Sen. 444, 3 In Levy v. Bank of United States, 1 Bin. 27. 5 2 Atk. 587. |