Sec 197

As a general rule, money paid under a mistake of fact may be recovered back ;3 though this rule does not apply, as we will see, to money paid in compromise, or in mistake of law.* As has just been stated and as will hereafter be more fully seen, mere negligence does not in such case preclude a party from recovery.5 It is otherwise as to money paid in mistake of law.6

Sec 198

Error in the view one or both parties may take of the law as bearing on the subject-matter of the proposed contract does not avoid the contract, or prevent the parties from coming to a common mind concerning it. All persons are presumed to know the law, and when this presumption relates to the public law of the land, the presumption is irrebuttable.7 - Judge document does not bind, see supra, sec 185.

Money paid under mistake may be recovered back.

Error in law does not avoid contract.

1 U. S. v. Nat. Park Bk., 6 Fed. Rep. 852 ; Kingston Bk. v. Ellinge, 40 N. Y. 391; Pardee v. Fish, 60 N. Y. 271; Mayer v. New York, 63 N. Y. 455 ; see Witthaus v. Shack, 57 How. (N. Y.).

Pr. 310. Infra, sec 752.

2 Bigelow on Est., 3d ed. 530-44; infra, sec 202 a, 1043 et seq.

3 Infra, sec 752 et seq.; and see also infra, sec 520 ; Bell v. Gardiner, 4 M. &.

G. .11.', Lucas v. Worswick, 1 Mood. & R. 293; Pearson v. Lord, 6 Mass. 84; Lazell v. Miller, 15 Mass. 208 ; Waite v. Leggett, 8 Cow. 195 ; Burr v. Veeder, 3 Wend. 412; Mayor of N. Y. v. Erben, 38 N. Y. 305; Merchants' Bk. v. Mc-Intyre, 2 Saodf. 431, and cases cited infra, sec 752.

4 Infra, sec 198 et seq., 533.

5 Infra, sec 753.

6 Infra, sec 198, 533, 754.

7 Story's Eq. Jur. 12th ed. sec 112; Wh. on Ev. sec 1240; Bispham's Eq. sec 187; Manser's case, 2 Coke, 3 6; Stewart v. Stewart, 6 CI. & F. 966 ; Stokes v. Salomons, 9 Hare, 79 ; Clare v. Lamb, L. R. 10 C. P. 334; Powell v. Smith, L. R. 14 Eq. 85 ; Kelly v. Solari, 9 M. & W. 54; Eaglesfield v. Londonderry, L. R. 4 Ch. D. 693; Rogers v. Ingham, L. R. 3 Ch. D. 351; Hunt v. Rousmanier, 1 Peters, 1 ; 8 Wheat. 174 ; Bank U. S. v. Daniel, 12 Pet. 32 ; Snell v. Ins. Co., 98 U. S. 85 ; Freeman v. Curtis, 51 Me. 140; Pinkham v. Gear, 3 N. H. 163 ; Mellish v. Robertson, 25 Vt. 603 ; Wheaton v. Wheaton, 9 Conn. 96; Shotwell v. Murray, 1.

Storytells us that "the probable ground for the maxim is that suggested by Lord Ellenborough, that otherwise there is no saying to what extent the excuse of ignorance might be carried;"2 and he adds that, "if, upon the mere ground of ignorance of the law, men were admitted to overhaul or extinguish their most solemn contracts, and especially those which have been executed by a complete performance, there would be much embarrassing litigation in all judicial tribunals, and no small danger of injustice from the nature and difficulty of the proper proofs."3 In corroboration of this view may be cited the striking remark of Pascal, that, if ignorance of law excuses, then the more ignorant a man becomes the more immunities he would possess; and that perfect brutishness, if a man could arrive at it, would invest him with perfect privilege. The only wise man, he argues, would be on this hypothesis the obstinately ignorant; the only knowledge that it would be desirable to obtain in perfection would be the knowledge not to know.4-By Mr. Austin, the reason of the rule is found in the fact "that, if ignorance of law were admitted as ground for exemption, the courts would be involved in questions which it would be scarcely possible to solve, and which would render the administration of justice next to impracticable."5-But whatever Johns. Ch. 572; Storrs v. Barker, 6 Johns. Ch. 169 ; Champlin v. Laytin, 18 Wend. 407 ; Clarke v. Dutcher, 9 Cow. 674; Hall v. Reed, 2 Barb. Ch. 501; Hampton v. Nicholson, 8 C. E. Green, 427; Ege v. Koonts, 3 Barr, 109; Menges v. Oyster, 4 W. & S. 20 ; Good v. Herr, 7 W. & S. 353; McAn-inch v. Laughlin, 13 Penn. St. 371; Carpenter v. Jones, 44 Md. 625 ; Goltra v. Sanasank, 53 111. 456.; Glenn v. Statler, 42 Iowa, 107; Lee v. Stuart, 2 Leigh, 76 ; McMurray v. St. Louis Co., 33 Mo. 377; Hubbard v. Martin, 8 Yerg. 498 ; Jones v. Watkins, 1 Stew. 81; Dill v. Shahan, 25 Ala. 694; Gwynn v. Hamilton, 29 Ala. 233; Lyon v. Sanders, 23 Miss. 530; Dailey v. Jessup, 72 Mo. 144; Smith v. Mc-

Dougal, 2 Cal. 586 ; Gammage v. Moore, 42 Tex. 170. That an action for money had and received does not lie in such cases, see infra, sec 754. See generally to same effect, Elliott v. Swartwout, 10 Pet. 137 ; Norton v. Marden, 15 Me. 45 ; Hill v. Green, 4 Pick. 114; Clark v. Dutcher, 9 Cow. 674; Abell v. Douglass, 4 Denio, 305 ; Robinson v. Charleston, 2 Rich. 314.

1 Eq. Jur. 12th ed. sec 111.

2 Citing Bilbie v. Lumley, 2 East, 469.

1 Citing Lyon v. Richmond, 2 Johns. Ch. 51.

4 See 4th Prov. letter, cited at large in Wh. on Neg. sec 413.

5 Aust. Lect. Jur. 3d ed. i. 498. As exceptional cases may be mentioned Jones v. Munroe, 32 Ga. 181, where it may be the reasons of the maxim, it is a settled principle in our own as well as in all other jurisprudences. Hence money paid under mistake of law cannot be recovered back either in law or equity ;1 though it is otherwise as to money paid under a mistake of foreign law.2 Mistake, also, as to the legal meaning of a document is no defence to an action for its enforcement.3 The fact, therefore, that the legal import of a written document was differently understood by the parties, one of whom eventually turned out to have given it a wrong construction, does not avoid it, since, if it did, few valid contracts could be made.4 And if the parties disagree in their was held that ignorance, based on a decision of the State Supreme Court, afterwards overruled, was a defence; Harney v. Charles, 45 Mo. 157, where the plaintiff was held not to be affected by ignorance that a statute was unconstitutional which was ultimately decided to be so. Between error in fact and error in law, Savigny notices this distinction, that error in fact must be shown as a substantive fact, while error in law appears from the circumstances of the case, and can only be made excusatory on proof of facts (e. g., opinions of counsel, etc.) showing that it was not the result of negligence. The two classes of error, therefore, while governed by the same substantive principle, are subject to different rules in respect to the burden of proof. And Savigny goes still further, maintaining that with errors in law, not merely the innocence but the existence of the error require a higher degree of proof than is the case with errors of fact.