view formerly there can be no doubt that at present the granting of relief in cases of mistake of law rests in the discretion of the court, a discretion that must be exercised with the greatest care, but the existence of which it is now too late to deny: Griswold . Hazard, 141 U. S. 260.

While this may be true in equity, it is, nevertheless, almost unanimously laid down by text-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 excusat.

The subject was complicated at an early date through the conflicting propositions of the Roman law. In the Code it is stated that where a person ignorant of the law pays money which is not due, the right to repetition ceases, for repetition is only allowed in those cases where what is not due is paid in consequence of an error of fact: Dig. xx. tit. 29; Code Lib. 1, tit. 18, l. 10; Inst. Lib. tu, tit. xxvu, §§ 6 and 7. Upon the texts a hotly contested battle has been fought by the commentators; Cujas, Donnellus, Voet, Heinneicus, Pothier and Savigny contend that no action lies, while the contrary is maintained by Vinnius, Huber, Ulric and D'Aguesseau. Voet Lib. 12, tit. 6; Savigny System, 8, 3; Evans' Pothier on Obligations, Appendix 320: Vinnius Inst. Lib. 3. tit. xxvi 6; Domat Lib. 1. 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 mere circumstances of my having mistaken the law does not alone give you a just reason for retaining what was not in any manner due to you, and in this case, melius est favere repetitioni quam adventio lucro." Civil Code of France adopted the views of Vinnius and D'Aguesscau: Code Napoleon, Art. 1377, 1356, 2052; and was followed in Louisiana, Tanner v. Robert, 5 Martin, N. S., 260. In Scotland the Court of Sessions held the same opinion until the decision of Wilson v. Sinclair, in the House

The

of Lords of the United Kingdom, 4 Wils. & 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 Prussia: Burge 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 pleading. In Farmer v. Arundel, 2 Wm. Bl. 824, Grey, C. J., said, that assumpsit would lie where money was paid by one man to another on mistake, either 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 set-off to which he was entitled. In an action for money had and received Lord Mansfield gave judgment 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; Ancher v. Bank, Dougl. 637.

Bilbie v. Lumley, 2 East. 469, however, ignored the previous tendency of the courts. On argument for a new trial Lord Ellenborough inquired of counsel whether he could state any case where money 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 extent the excuse of ignorance might not be carried." This decision has had the widest influence both in England and America: Brisbane 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 . Sayers, 2 Jacob & W. 249; Currie v. Gould, 2 Mad. Ch. 163; Bramston v. Robins, 4 Bingh. 11; Ry. Co. v. Cripps, 5 Hare, 90, c. f.; Livesey v. Livesey, 3 Russ. 287.

These cases, however, have lost their importance since the decision in Rogers 2. 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. 65. An executor was advised that a legatee was not entitled to certain interest, which had been paid to her. The legatee also took the opinion of her counsel which was the same, and the estate was divided accordingly. Two years later the legatce commenced this action submitting a new construction of the will and claiming repayment. It was held that such an action could not be maintained. Relief, said Lord Justice James, had never been given in the case of a simple money demand without intervening equities, Lord Justice Mellish adding, that he had no doubt that the court had power to relieve against mistakes of law, if there was any equitable ground which made it under the particular facts inequitable that the party who received the money should retain it. In Daniel v. Sinclair, 6 Appeal Cases, 180, the suit was to redeem a mortgage. The respondent on the erroneous supposition that compound interest was authorized, had consented that the accounts should be so kept, and had ratified them in writing. On appeal 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 in law. Powell. Hulkes, 33 Ch. D. 552.

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 law. The principle was applied in ex parte James, L. R., 9 Ch. 609, where a trustee in bankruptcy was ordered to repay money.

"

'The rule," said Lord Esher, "is not confined to the Court of Bankruptcy. If money by mistake of law has come into the hands of an officer of the Court of Common Law, the court would order him to repay it so soon as the mistake was discovered." The court would direct its officer to do that which any high-minded man would do: Ex parte Simmonds, 16 Q. B. D. 308. So also in Chancery, where trust money in

of Lords of the United Kingdom. 4 Wils. & 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 Prussia: Burge 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 pleading. In Farmer v. Arundel, 2 Wm. Bl. 824. Grey, C. J., said, that assumpsit would lie where money was paid by one man to another on mistake, either 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 set-off to which he was entitled. In an action for money had and received Lord Mansfield gave judgment 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; Ancher v. Bank, Dougl. 637.

Bilbie . Lumley, 2 East. 469, however, ignored the previous tendency of the courts. On argument for a new trial Lord Ellenborough inquired of counsel whether he could state any case where money 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 extent the excuse of ignorance might not be carried." This decision has had the widest influence both in England and America Brisbane 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 v. Sayers, 2 Jacob & W. 249; Currie v. Gould, 2 Mad. Ch. 163; Bramston v. Robins, 4 Bingh. 11; Ry. Co. v. Cripps, 5 Hare, 90, c. f.; Livesey v. Livesey, 3 Russ. 287.

These cases, however, have lost their importance since the decision in Rogers v. 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. 65. An executor was advised that a legatee was not entitled to certain interest, which had been paid to her. The legatce also took the opinion of her counsel which was the same, and the estate was divided accordingly. Two years later the legatee commenced this action submitting a new construction of the will and claiming repayment. It was held that such an action could not be maintained. Relief, said Lord Justice James, had never been given in the case of a simple money demand without intervening equities, Lord Justice Mellish adding, that he had no doubt that the court had power to relieve against mistakes of law, if there was any equitable ground which made it under the particular facts inequitable that the party who received the money should retain it. In Daniel v. Sinclair, 6 Appeal Cases, 180, the suit was to redeem a mortgage. The respondent on the erroneous supposition that compound interest was authorized, had consented that the accounts should be so kept, and had ratified them in writing. On appeal 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 in law. Powell . Hulkes, 33 Ch. D. 552.

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 law. The principle was applied in ex parte James, L. R., 9 Ch. 609, where a trustee in bankruptcy was ordered to repay

money.

'The rule," said Lord Esher, "is not confined to the Court of Bankruptcy. If money by mistake of law has come into the hands of an officer of the Court of Common,Law, the court would order him to repay it so soon as the mistake was discovered." The court would direct its officer to do that which any high-minded man would do: Ex parte Simmonds, 16 Q. B. D. 308. So also in Chancery, where trust money in