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may be granted against mistakes of law. In Fitzgerald v. Peck' the defendant sold land, and took in payment three notes, one of which he passed directly to the plaintiff, to whom the two others were sold by a third person, and all for considerably less than the sum expressed in them. The defendant having failed to make out a title to the land, was obliged to pay the notes. A part of the amount he paid in cash, and he gave his note for the residue, as computed by the counsel of the parties, and covering the full sum stated in the notes. Judgment was recovered on this note, and the defendant asked for an injunction, which was perpetuated as to all beyond the sums actually paid by the plaintiff for the notes and costs of the suit. The ground on which the court put the defendant's right to relief, was that of mistake as to what he was really bound to pay.

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In a very late case the question as to the effect of mistakes of law was considered, at large, on general principles, and the conclusion at which the court arrived was, that if a man, without any other motive or consideration than an erroneous opinion respecting his legal rights and obligations, release a right, pay money, or undertake to do any act, he should be held entitled to relief equally as if he had acted under a mistake of fact, and for the same reason, namely, that the contract was not such as the parties, or one of them at least, really contemplated. "And such," they said, "we understand to be the rational and consistent doctrine of the common law established in Kentucky."

In South Carolina, where the question has been oftener discussed than in any other state except New York, the courts have twice acted upon, and in a third case deliberately affirmed the doctrine, that mistakes of law are a proper subject for relief. In the first case that came before them, the defendant had sold a wharf, and for a part of the purchase 2 Underwood v. Brockman, 4 Dana, 309.

1 4 Litt. 125.

3 Lowndes v. Chisolm, 2 McCord, Ch. 455.

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money had taken seven bonds, to secure the payment of which he held a mortgage of one half the wharf. Two of these bonds, on which the plaintiffs were sureties, the defendant assigned, together with so much of the mortgage as related to them, and the plaintiffs were obliged to pay the money due on them to the assignee. The defendant recovered judgment on the five other bonds, and the mortgaged premises were sold under the judgment, without any foreclosure of the mortgage, and were purchased by the defendant. Both he and his counsel meant to sell the fee simple of the property, and the sheriff so offered the premises for sale. In fact, only the equity of redemption passed by the sale. The plaintiffs filed their bill, claiming to have the proceeds of the mortgaged property applied to pay them in proper proportion, and insisting that the premises, in the defendant's hands, were liable to them as mortgage creditors; -thereby claiming to hold the defendant accountable for the sum he had bid for the property, under the supposition that he was buying the fee, yet allowing him only the equity of redemption. The court held the defendant not bound by the purchase, the effect of the sale being to pass a less interest than that which he believed he was purchasing. Here the question, as to the effect of a mistake of law, was directly before the court, and was the very point on which the case was decided. The court considered it "well established, that relief is given in cases where the mistake has been clearly one of law;" and they thought "the authorities relied on put the matter beyond all doubt, if indeed it could be doubted at this day."

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The next case much resembled that of Bingham v. Bingham. The defendant had purchased land which was already his under a devise. But the heir at law interposed a claim, and the defendant was advised by counsel, that he could not

1 Lawrence v. Beaubien, 2 Bail. 623.

hold the real estate, because, when the will was made, he was not a naturalized citizen. The defendant, desiring to become the owner of the land in question, procured the heir at law to execute a deed of assignment of all his interest in his father's real estate, in favor of the defendant, who, in consideration thereof, executed a bond, which was afterwards assigned to the plaintiff, and on which this action was brought. The case was very learnedly and elaborately argued on both sides. Mr. justice Johnson, in delivering the opinion of the court, said he had no hesitation in coming to the conclusion, that contracts founded on a plain and palpable mistake of the law, from a known state of facts, and capable of proof, ought not to be enforced; and he thought there was no difference in principle between the cases of recovering back money, and of enforcing a contract founded on a mistake of law. The mistake here was the precise point on which the case turned; and the verdict having been against the defendant, a new trial was granted.

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In a subsequent case the chancellor, in the court below, had thrown out some remarks calculated to shake the doctrine of the two earlier cases. When this case came. before the court of appeals, the decree was affirmed, but the court thought it fitting to use the opportunity to express their decided adherence to the doctrine in question. Mr. justice Johnson, who delivered the opinion of the court, observed that Lawrence v. Beaubien was decided on much consideration, and the more he had reflected on it since, the more he was confirmed in its correctness.

We have now noticed all the authorities we have met with, having any material bearing upon the subject, on the one side and on the other. That all the cases can be reconciled with each other, may not be pretended. There is much strong language used by distinguished judges, on both sides.

'Hopkins v. Mazyck, 1 Hill, Ch. 242.

In such a case, regarding the question on the ground of authority simply, we can only inquire, which, from the circumstances under which it was used, is entitled to the greatest weight. We think it will be found, that in most, if not all of the cases, when we meet with the strongest language against granting relief, there was no sufficient evidence of any mistake having occurred; or else there were other controlling circumstances, going of themselves to settle the case, so that even if those same courts had held mistakes of law to be remediable under proper circumstances, and if the pretended mistake had been distinctly proved in these cases, they would have decided them precisely as they actually did decide them. Now, where a judge has made up his mind that the decision should be a certain way, let there have been a mistake or not, the question of mistake becoming thus little more than a speculative one, he might very possibly, in respect to it, express himself in language which he would find it exceedingly hard to stand by, in a case where the party seeking relief had justice on his side throughout, and the mind of the judge was subjected to the pressure of the single, naked question, whether a mistake of law, undeniably shown, should be allowed to divest one man of his indisputable property and rights, and to establish or confirm in another the possession of property to which he as clearly has no honest right. In regard to the decisions on the other side, some of them were put expressly upon the ground of mistake, and many of the others, if we correctly apprehend them, were actually decided upon that ground, and without such mistake the decision must have been the other way. On the whole, in view of all the cases on the subject, of the language used in them, and the circumstances under which it was used, we cannot but regard the actual preponderance of authority as unequivocally in favor of the doctrine, that mistakes of law may afford good cause for relief.

C. M.

JURISPRUDENCE.

I. DIGEST OF ENGLISH CASES.

COMMON LAW.

Selections from 9 Adolphus & Ellis, Part 1; 1 Perry & Davison, Part 4; 6 Nevile & Manning, Part 5; 6 Scott, Part 5; 4 Meeson & Welsby, Part 5; and 5 Meeson & Welsby, Part 1.

ARBITRATION. (Enlargement of time.) An arbitrator who had power to enlarge the time for making his award by indorsement on the order of reference, made the following indorsement :—“ I direct that a rule of this Court shall be applied for by counsel's hand, to enlarge the time of making my award." No such rule was applied for; but the parties subsequently attended meetings before the arbitrator, and made no objection to the regularity of the enlargement: Held, first, that the indorsement was itself a sufficient enlargement of the time but secondly, that if it were not, the irregularity had been waived. Hallett v. Hallett, 5 M. & W. 25.

2. (Award, when sufficiently final-Proof of allegation of award made.) Where an action of assumpsit, the declaration in which contained a count upon a promissory note for 22l. 11s. 9d., and a count upon an account stated for 301. was referred to arbitration, and the arbitrator found that the plaintiff had good cause of action for, and was and is legally entitled to have, claim, and recover of and from the defendant the sum of 227. 11s. 9d.,' , being the amount of the promissory note mentioned in the pleadings in the said cause: Held, that the award was bad, inasmuch

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