except in cases where there is no person entitled to the residue under the statute of distributions, by the act of 1 William 4, c. 40, and although the residue in this country always goes to the next of kin, still the executor cannot be regarded as a gratuitous bailee. A reasonable compensation is made in this country, and since the statute probably in England. If the liability of an executor is not absolute, great uncertainty must attend its degree and extent. The representative character of the executor distinguishes his case from that of a bailee.

The rule that ignorance of the law shall not affect agreements is one of sound policy when properly applied. It would be impossible to know the extent of knowledge which was possessed by a contracting party, nor in ordinary cases to what extent he may have acted with reference to his absolute rights. It would give a great advantage to a party, to allow him to consider his agreement voidable or not at his election, and it would be inconsistent with established principle, to make an agreement depend for its efficacy upon the understanding of one of its parties. The law cannot make agreements for men, because they have by mistake made a different agreement, nor annul agreements on the surmise, that the parties if they had been better informed would not have entered into them.

But in all cases of fraud, mistake in fact, or surprise,―accompanied with ignorance of the law, equity has interfered; and in the exercise of its discretion in cases thus qualified, has arisen the uncertainty. The principal difficulty has arisen in cases of surprise, and although a great effort has been made to give a fixed definition to this word, and to settle the rule in what cases relief shall be granted, still a broad range of discretion has been exercised, and the wholesome rule alluded to above has been greatly relaxed. We are inclined to think, that the cases on this head have not proceeded too far, because in almost all of them where relief

has been granted, though the ingredient of fraud may not have been shown to be present, it would have been a fraud to carry the agreement into effect.

The case before lord Talbot, of Pusey v. Desbouvrie, 3 P. Wms. 315, was one of this character. A sister released her orphanage share to her brother for a greatly inadequate consideration, and it was decided, that the agreement was not binding, because the sister did not know the extent of her rights, and looked to her brother for advice and guidance. The case of Evans v. Llewellyn, 2 Bro. Ch. R. 150, 1 Cox's Rep. 133, carried the discretion of the court to its utmost limit. A conveyance was set aside on the ground of surprise, “having been obtained, and executed by the plaintiff improvidently." In this case, the surprise was inferred from the inadequacy of the consideration, and the contract was rescinded, because it would have been unconscientious for the party to have enjoyed the advantages which it secured to him. A surprise seems to have been inferred from the contract itself, and not from the circumstances attending it; and, after all, the decision of the judge turned upon a point extremely minute; the plaintiff had consulted his friends several days before concluding the bargain, but lord Kenyon said, that if at the time of its ratification, "he had gone back" to consult them, he should not have rescinded the transaction. One of the grounds upon which the case was placed might not then have existed, but it certainly would have been equally unconscientious, to have enforced the agreement against one whose mind was thrown into confusion by the greatness of the change in his circumstances.

The case is fully reported in 1 Cox's Rep. 133, and there it appears that the master of the rolls rested his decision mainly upon the improvidence of the bargain.

It is manifest, that the principle upon which this case was decided subjects all agreements, where inadequacy of consideration and misconception of rights render them im

The

provident, to the discretion of the chancellor. There are a variety of cases which seem to carry the discretion of the court much further, and lay down the doctrine, that, if a party, acting in ignorance of a plain and settled principle of law, is induced to give up a portion of his indisputable property to another, under the name of a compromise, a court of equity will relieve him from the effect of his mistake, but that where a doubtful question arises, a different rule prevails; Naylor v. Winch, 1 Sim. & Stu. 555. rule thus stated seems quite at variance with the general doctrine stated above, and can only be reconciled with it by supposing that other ingredients, such as constructive fraud, mistake of facts, &c., have entered into the cases; but scarcely any case can be stated in which a court of equity has been called upon to rescind, where there has not been mistake of facts as well as mistake of law; and it will appear, on reviewing the cases, that under this head courts of equity have taken a jurisdiction so extensive, that the title of estates where mistake of rights is alleged is made to depend substantially upon the discretion of the judge. In the case from Simon & Stuart, relief is put upon the same ground, where there is a mistake or ignorance of the law, as where there is one of fact. The court say, it will only be granted where the question is not doubtful, but if the court can go into an inquiry at all, with the view to ascertain the nature or the degree of the ignorance in point of law, the maxim which has been the subject of so much controversy is abandoned, and mistake in fact is put upon the same footing as ignorance or error of principle and misconception of rights.

Indeed, almost all the cases are qualified to such an extent by circumstances, which may be laid hold of to withdraw them from the application of the rule, that it can scarcely be considered as extending to any case, except those where the chancellor is called upon, as in Irnham v. Child, 1 Bro. Ch. R. 92, and in Hunt v. Rousmaniere, 1 Peters's R. 1, to make

for the parties an agreement which they did not make, and from a mistake of the law did not intend to make; in other words where the court is called upon to change the rule of law.

It is remarkable, although the question has been so fully discussed by elementary writers, that the rule is scarcely noticed, if acknowledged at all in the reported cases. In Hunt v. Rousmaniere, 8 Wheaton's R. 214, chief justice Marshall says, "although we do not find the naked principle, that relief may be granted on account of ignorance of law, asserted in the books, we find no case in which it has been decided, that a plain and acknowledged mistake in law is beyond the reach of equity."

The question has scarcely arisen except in the class of cases like Irnham v. Child, because in other cases, there have been circumstances which brought them within the cognizance of a court of equity. The case of Lansdowne v. Lansdowne, 2 Jacob & Walker, 205, which has so often been questioned in argument, as a case coming within the rule of mistake in law, is mentioned by Mr. Powell as a case where relief was granted for a mistake in fact; 2 Powell on Contracts, 196.

The elementary writers who deal in abstractions adhere to the maxim rigorously, but the cases which come under the consideration of the courts under this head are always mixed cases of law and fact, and, from the inequality of the agreements in their effect merely, a presumption arises of absolute or constructive fraud.

Cases of compromise, where the right is doubtful, and where both parties are in ignorance of their rights, although the agreements are sustained if fair, are yet subjected to the jurisdiction of courts of equity, and as in all other cases of inequality, the decree is not subject to any fixed rule, but depends upon the circumstances of each case.

Family compromises are viewed with even greater favor

by courts of equity, and for the sake of maintaining the honor of families, agreements are sometimes sustained, which, between different parties, might be questionable; Stapilton v. Stapilton, 1 Atk. 2: but agreements under this head are subjected to the discretion of the court, and there are no cases in which the rule in question is not controlled by cir

cumstances.

Since such an enlarged discretion is given to courts of equity, in the exercise of their jurisdiction over all agreements, it is to be regretted that the general rule should have been stated by so many elementary writers in unqualified terms; because, so far as their opinions are regarded, they may lead to error respecting the principles which have uniformly governed courts of equity, in the exercise of that jurisdiction, which subjects the agreements of individuals to the stern rules of good faith. The general maxim is a sound one, when properly applied; for, as has been well observed: "Ignorance is not mistake, and relief cannot be given on a supposition, merely that parties are ignorant of the legal effect of their acts;" 1 Maddock's Ch. Pr. 74.

Relief is administered in equity in cases of mistake, on the ground that it would be giving effect to fraud to support agreements thus contracted; and from the nature of the jurisdiction, all positive regulations, such as are prescribed by the statute of frauds, and all general rules which are merely artificial, are made to yield to the higher policy of preserving good faith among men, in their dealings with each other. The rule that mistake of the law is not to be supposed is not artificial, but the presumption relates merely to the evidence, and is capable of being rebutted by evidence of greater weight. If parties to an agreement in writing should in terms declare a mistaken understanding of the law, there can be no doubt that the rule in question could never apply to such a case, and that so far as the agreement was founded on mistake, relief would be granted. It would