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in consideration of an estate to which he had no right;". a reason which commends itself to our notions of justice.

We cannot regard this as a case of compromise, as it has been considered.' It does not appear, that, at the time of the sale, either party had any doubt whose the land was. The plaintiff knew there was a will giving it to him, but when the transaction took place, he appears to have been satisfied that the will was good for nothing; and the case finds, that the defendant, in good faith, thought the right his. There is nothing indicating an intention of the parties to divide the stake, and run each his own risk as to the right. The one does not say, I will give, and the other, I will take so much, be the right where it may. But they appear to have proceeded upon the implicit belief that the right was in the one, whereas, in fact, it was in the other. The case stands on the intention of the parties. It is not to be supposed that the plaintiff intended to purchase what was already his own, or the defendant to sell what did not belong to him. The principle is the same as that stated by Mr. justice Story,' that "a party can hardly be said to intend to part with a right or title, of whose existence he is wholly ignorant." And whether the party never suspected he had any right, or has settled down implicitly in the erroneous belief that he has none, would seem to be immaterial.

M'Carthy v. Decaix' is a recent case, decided by lord Brougham. There a native of Denmark had married an English woman, in England, and had afterwards been divorced from her in Denmark,-which, by the law of England, is no divorce. After the death of the wife, her husband, believing the divorce valid, had, in a correspondence with her sister, who represented her as having died poor, renounced all claim to his wife's property, in favor of her family. The lord chancellor said, had he known that he

1 Story, Eq. Jurisp. 138.

2 Ibid,

135. 32 Russ. & Myl. 614.

was still her husband and liable for her debts, this knowledge might have altered his intention; "for if a man does an act under ignorance, the removal of which might have made him come to a different determination, there is an end of the matter. What he has done, was done in ignorance of law, possibly of facts, but, in a case of this kind, that would be one and the same thing."

In Clifton v. Cockburn,' though the case did not turn principally on that point, we have a pretty intelligible intimation of lord Brougham's views in respect to the distinction between error of law and error of fact. "The distinc

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tion," he says, "is somewhat more easy to lay down in general terms, than to follow out in particular cases, even as regards the application of the rule, admitting it to be a correct one, and I think I could, without much difficulty, put cases in which a court of justice, but especially a court of equity, would find it an extremely hard matter to hold by the rule, and refuse to relieve against an error of law." In a very late case, when the court were disposed to go all justifiable lengths to protect the plaintiff, in a case which they considered as one of the most unfortunate that ever occurred in a court of justice, but could do nothing, since the defendant had the law with him, it was attempted to set up certain acts of the defendant, in confirmation of the plaintiff's title. But the master of the rolls, sir John Leach, said, "no man can be held by any act of his, to confirm a title, unless he was fully aware at the time, not only of the fact upon which the defect of title depends, but of the consequences, in point of law; and here there is no proof that the defendant, at the time of the acts referred to, was aware of the law on the subject." What need was there of such proof, or what mattered it whether the de

1 3 Myl. & Keen, 76.

2 Cockerell v. Cholineley, 1 Younge & Coll. 418.

fendant was aware of the consequences of his acts, if the doctrine be, that every man is imperatively presumed to know, and at his peril must know the law in all cases. The master of the rolls certainly could not have understood that such was the doctrine.

We will now look at the American cases which we regard as authorities, to show that mistakes of law are remediable. In Massachusetts, it is understood to have been decided, that money, paid under a mistake of law, may be recovered back; and, at all events, that a promise to pay, under a mistake of law, cannot be enforced;' and such Mr. Dane regards as the better doctrine. In the case of Haven v. Foster, the question whether money, paid in ignorance of the law, can be recovered back, was very learnedly discussed by counsel. The court professed to leave the question undecided, but allowed the plaintiff to recover, on the ground that the law of descents in New York was to be regarded as a fact, and, consequently, that ignorance of it was ignorance of a fact and not of law. The argument, adduced from analogy, that the courts of our state are not presumed to know the laws of any other state, we cannot deem to be precisely in point. It is the business of courts to administer justice within the state by whose authority they are constituted. But an individual must look to his rights, wherever they may be called in question, and by whatever laws they may be governed. It would seem, that if a man is bound to know any laws affecting his rights civiliter, it should be those which concern and control the right and disposal of his property. Now, in respect that the plaintiff in this case lived in Massachusetts, the statute of descents in New York was to him a foreign law; but it was not so in respect to the property, out of the disposition of which the case arose, for that was situated in New York.

11 Story Eq. Jurisp. 122, note; 1 Dan. Ab. ch. 9. art. 3. § 2.
2 3 Dan. Ab. ch. 75. art. 19. § 8.
39 Pick. 112.

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There is a late case' in New York, which is to be noticed. It came first before vice chancellor McCoun, who thought the authorities sufficient to establish the position, that a contract entered into, as he considered this to have been, under a mutual misconception of legal rights, amounting to a mistake of law, in both parties, and going to defeat the true end of the contract, is as liable to be set aside as a contract founded on mistake of facts. The chancellor1 affirmed the decree of the court below, but he could not regard the correctness of the decision as turning on the question, whether or not the court could relieve against a mistake of law merely :-a point on which he did not "wish to be understood as expressing any opinion, one way or the other." The case was afterwards carried to the court of errors, where the decree was again affirmed, unanimously. Mr. justice Bronson, who delivered an opinion in the case, considered the parties as having contracted under a mutual mistake, which, on the part of the appellants, he regarded as a mistake of law, but as a mistake of fact on that of the appellee, who was the party seeking relief. He went into a discussion, at large, as to the effect of mistakes of law, and was very decided in the opinion, that such mistakes are beyond all relief. Mr. senator Paige indorsed the doctrine of the vice-chancellor, and he could "not see any good sense in the distinction of granting relief against mistakes of fact and refusing it in cases of acknowledged mistakes of law." These two were the only opinions delivered in the case, and how many of the court adopted the doctrine of the one, and how many that of the other, does not appear. The marginal note has it, "whether relief will be granted where there is mere mistake of law, quære." At all events, the whole course of the case, to our apprehension,

Champlin v. Laytin, 1 Edw. Ch. 467.

3 18 Wend. 407.

26 Paige, 189.

shows a very decided falling off from the high and imperative language, which the courts of New York held in some of the earlier cases.

In Pennsylvania there is a case, where a party, having deposited in the bank a check which proved to be forged, afterwards, on being informed of the fact, said, “if the check is a forgery, it is no deposit." Chief justice Shippen held this to be "the expression of an opinion of what he should be obliged to allow, rather than of what he was willing to allow, and being made under a mistake of his right, he was not bound by it," and he cited the case of Penn v. lord Baltimore as conclusive to the point.

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The Maryland reports furnish a strong authority on the same side. There certain land had been devised to Bowley, who well knew of the devise, but had never supposed he became entitled to the land till the happening of certain contingencies mentioned in the will, whereas, in fact, the legal effect of the will was, to give him the land absolutely. A part of this land had been sold to Lammott, with the knowledge of Bowley. Many years afterwards, the true construction of the will having been ascertained, the defendant brought an action of ejectment for the land thus sold, and the plaintiff filed a bill for an injunction. The question to be decided, the court said, was simply whether a man who has a title to land, but who is ignorant of his right, forfeits his title by concealing his right, when he knows that another is about to purchase the land of a third person. They held that he did not; and they thought it clearly the true doctrine, and well supported by authorities, that a person acting under a plain and acknowledged mistake of his legal rights, should not thereby be deprived of those rights. In Kentucky it is regarded as settled doctrine, that relief

1 Levy v. Bank of United States, 1 Bin. 27. 2 Lammott v. Bowley, 6 Har. & Johns. 500.

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