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The Annotations are prepared by the following Editors and Assistants : Department of PRACTICE, PLEADING AND Evidence.

Hon. George W. Dallas, Editor. Assistants : Ardemus Stewart,

llenry X. Smaltz, John A. McCarthy, William Sanderson Furst Department of CoxstirUTIONAL LAW. Prof. Christopher fi. Tiedeman, Editor. Assistants : Wm. Draper

Lewis, Wêm. Struthers Ellis. Department of MUNICIPAL CORPORATIONS.

Hon. John F. Dillon, LL. D., Editor. Assistant: Mayne R. Long

streth. Department of Equity.

Richard C. Mellortrle, LL. D., Editor. Assistants : Sydney G.

Fislacr, John Douglass Brown, Jr., Robert P. Bradford. Department of Torts.

Melville 1. Bigelow, Esq., Editor. Assistants : Benjamin H.


Angelo T. Freelley. Esq., Editor. Assistants : Lewis Lawrence

Smith, Clinton Rogers Woodruff, Maurice G. Belknap, H.


Charles F. Bearl, Jr., F.sq., Editor. Assistants : Lawrence God.

ķin, Owen Wister, Victor Lcovy, Cyrus E. Woods. Department of ADMIRALTY.

Morton P. Henry, Esq., Editor. Assistant: Horace L. Cheyney. Departnicnt of COMMERCIAL Law.

Frank P. Prichard, Esq., Editor. Assistants : H. Gordon Mc

Couch, Chas. c. Binney, Chas. C. Townsend, Francis H.

Bohlen, Oliver Royce Judson. Department of IxsC'RASCE.

George Richards, Esq.. Eilitor. Assistants : George Wharton

Pepper, Luther E. Hewitt, Samuel Kaho Loucheim. Department of Crimisal Law and CKIMISAL PRACTICE.

Prof. Gieo. S. Graham, Editor. Assistants : E. Clinton Rhoads,

C. Percy Wilcox. Department of Patent Law.

George Harding, Esq., Editor. Assistant: Hector T. Fenton. Department of PROPERTY.

Hon. Clement B. Penrose, Editor. Assistants: Alfred Roland

Haig, Wm. A. Davis, Jos. T. Taylor. Department of MEDICAI. JURISPRUDENCE.

Hon. Marshall D. Ewell, LL. D., Ellitor. Assistants: Thomas

E. D. Bradley, Milton O. Naramorc.

Hon. Wm. S. Ashman, Editor. Assistants : Howard W. Page,

Charles Wilfred Conard, Joseph Howard Rhoada, William

Henry Loyd, Jr., Edward Brooks, Jr. Department of TRUSTS AND COMBINATIONS IN RESTRAINT OF TRADE. 1. La Barre Jayne, Esq., Editor. Assistants : George S. Patterson,. Charles F. Eggleston.




Assisted by





Plaintiff endorsed certain papers supposing them ncgotiable notes, afterwards the principal Acd and the plaintiff was called upon for payment. After paying a portion of the notes plaintiff was advised that they were not negotiable and refused further payment. A suit by the bank to recover the remaining amount was decided in his favor. He then brought this action to recover the amouut paid to the bank. lleld, the mistake under which the payment was made would not warrant a recovery, it being a matter cqually open to the inquiry of both parties. "Reported in 32 N. E. Rep. 228 ; 157 Mass. 341.

Money Paid by MISTAKE OF LAW. The subject of mistake of law is involved in confusion and the decisions of the courts give little hope of the speedy adoption of a gencral rule or a decisive victory for cither of the vicw's that have moulded the decisions of judges and chancellors. The question is one that lies so close to the border-land of morals that it is more than difficult to decide whether the victim of circumstances shall be assisted and rclicved or allowed to suffer for his stupidity. It was argued before Lord Mansfield that all the laws of the country are presumed clear, evident and certain. But thc Chief Justice replied, “as to the certainty of the law it would be very hard upon the profession is the law was so certain that everybody know it. The misfortunc is that it is so uncertain that it costs much money to know what it is even to the last resort:" Jones v. Randall, Cowp. 37. Whatever may have been the

view formerly there can be no doubt that a: present the granting of relics in cases of mistake of law rests in the discretion of the court, a discretion that must be escrcised with the greatest care, but the existence of which it is now too latc to deny: Griswold ::. Hazard, 141 L. S. 200.

While this may be true in equity, it is, neverthclcss, almost unanimously laid down by: test-writers that money paid by mistake of law cannot be recovered back, and the statement is made without qualification. Indeed, the payment of money by mistake of law is usually regarded as the last, impregnable stronghold of the maxim, ignorantia juris non cxcusar.

The subject was complicated at an carly date through the conflicting propositions of the Roman law. In thc Code it is stated that where a person ignorant of the law pay's money which is not due, the right to repetition ceases, for repetition is only allowed in those cases where what is not duc is paid in consequence of an error of fact: Dig. x.x, tit. 29 : Code Lib. I, tit. 18, 1. 10; Inst. Lib. iii, tit. XXVII. $$ 6 and 7. Upon the texts a hotly contested battle has been fought by the commentators; Cujas, Donnellus, l'oct, Heinncicus, Pothicr and Savigny contend that no action lics, whilc the contrary, is maintained by l'innius, Huber. Ulric and D'Agucsseau. VocLib. 12, tit. 6: Savigny: System. 8. 3; Evans' Pothier on Obligations, Appendix 320; l'innius Inst. Lib. 3. tit. XXVIII 6; Domat Lib. I, tit. 18, § 1. The former writers rely upon the words of the Code and the positive laws of the Emperors Diocletian and Maximian, while the latter contend that the right of action can only be excluded by exceptions founded upon equity upon the opposite side. In the words of Vinnius "the merc circumstances of my having mistaken the law does not alone give you a just rcason for retaining what was not in any manner due to you, and in this case, melius est favere repetitioni quam adicntio lucro." Thc Civil Code of France adopted the views of l'innius and D'Aguesseau: Code Napoleon, Art. 1377,13;6, 2032; and was followed in Louisiana, Tanner v. Robert, 5 Martin, X. S. 260. In Scotland the Court of Sessions held the same opinion until the decision of Wilson v. Sinclair, in the House

of Lords of the L'niteul Kingdom. + W'ils. & Shaw, 398. In Spain the rule was explicitly laid down that what is paid through ignorance of law cannot be recovered back: Institutes of Civil law of Spain. Also Manuel Lib. 2, tit. 11, ch. 2. And the want of unanimity is further displayed in the Codes of Austria and Irussia : Burye on Conflict of Laws, Vol. 3, p. 729.

In the English common law courts the question was further complicated by the forms of action and the rules of plcading. In Farmer v. Arundel, 2 Wm. Bl. 82.4. Grey, C. J., said, that assumpsit would lic where money was paiel by one man to another on mistake, cither of fact or law. In Bize v. Dickinson, the question was fairly before the court; the debtor of a bankrupt, in ignorance of his right, paid the debt without taking advantage of a sct-off to which he was entitled. In an action for moncy had and received Lord Mansfield gave judge ment for the plaintiff, saying, Where money is paid under a mistake of law, which there was no ground to claim in conscience, the party may recover it back in this kind of action : 1 Term Rep. 285; Lowry v. Bourdieu, Dougl. 468 ; Anchor v. Bank, Dougl. 637.

Bilbic .. Lurley, 2 East. 469, however, ignored the previous tendency of thic courts. On argument for a new trial Lord Ellenborough inquired of counsel whether he could statc any case where moncy had been recovered back when paid by mistake of law. If counsel had been prepared with the cases of Lord Mansfield's time, the result might have been different. As it was, counsel gave no answer, and the Chief Justice said that “ every man must be taken to be cognizant of the law, otherwise there is no saying to what cxtent thc cxcuse of ignorance might not be carried." This decision has had the widest influence both in England and America : Brisbanc v. Dacres, 5 Taunt. 144: Stevens v. Lynch, 12 East. 37. Not only in the law courts, but in the court of chancery as well : Goodman a'. Sayers, 2 Jacob & W. 249; Curric v. Gould, 2 Mad. Ch. 163; Bramston '. Robins, 4 Bingh. 11; Ry. Co. v. Cripps, 5 Hare, 90, c.f.; Livesey v. Livesey, 3 Russ. 287.

that a legatce



ment. tnined.

These cases, however, have lost their importance since the decision in Rogers a'. Ingham, L. R., 3 Ch. D. 351, said to be the modern leading case upon this subject, Brett's Modern Leading Cases in Equity, p. 63. An executor was advised been paid to her. The legatce also took the opinion of her counsel which was the same, and the estate was divided accordsubmitting a new construction of the will and claiming repay.

It was held that such an action could not be mainin the case of a simple moncy demand without intervening

Relics, said Lord Justice Janies, had never been given equities, Lord Justice Mellish adding, that he had no doubt that the court had power to relicvc against mistakes or law, if there was any equitable ground which made it under the particular facts incquitable that the party who received the money shoulai retain it. In Daniel v. Sinclair, 6 Appeal Cases, 180, the suit was to redcem a mortgage. The respondent on the had consented that the accounts should be so kept, and had ratified them in writing. On appcal before the Judicial Committee of the Privy Council the overcharge was disallowed, Lord Monkswell remarking, that the line between mistakes of law and fact had not been so sharply drawn in equity as

Whatever may be the rule between ordinary adverse litigants the court finds no difficulty in giving relief where money has been paid to an officer of the court by mistake of 9 Ch. 609, where a trustee in bankruptcy was ordered to repay

The principle was applied in ex parte James, L. R., " The rule," said Lord Esher, “is not confined to the Court the hands of an officer of the Court of Common law, the court discovered." The court would direct its officer to do that 16 Q. B. D. 308. So also in Chancery, where trust money in

was not entitled to certain interest, which had

ycars later the legatce commenced this action supposition that compound interest was authorized,

a. Hulkes, 33 Ch. D. 552. order him to repay it so soon as the mistake was any high-minded man would do: Ex parte Simmonds,


in law.






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