In the well-known case of Bilbie v. Lumley,1 Lord Ellenborough asked counsel for plaintiff "whether he could state any case where if a party paid money to another voluntarily with a full knowledge of all the facts in the case, he could recover it back again on account of his ignorance of the law?" As a matter of fact there were several such cases in the books,2 and had they been urged upon the court it is altogether probable that they would have been followed and not improbable that the law would have been accordingly settled for all time. But counsel, though "a most experienced advocate,"3 is reported to have made no reply, and Lord Ellenborough, declaring that "Every man must be taken to be cognizant of the law," established the rule that money paid by mistake of law, even under circumstances which make it inequitable for the defendant to retain it, is not recoverable.
1 1802, 2 East 469, 470, 472.
2 Hewer v. Bartholomew, 1598, Cro. Eliz. 614; Bonnel v. Foulke, 1657, 2 Sid. 4; Turner v. Turner, 1679, 2 Chan. Rep. 154; Lansdowne v. Lansdowne, 1730, 2 Jac. & Walk. 205; Bize v. Dickason, 1786, 1 Term R. 285; and see Keener, "Quasi-Contracts," p. 85, note.
3 See Brisbane v. Dacres, 1813, 5 Taunt. 163.
The courts of law, while frequently evincing the most profound dissatisfaction with the rule, have followed it with unusual consistency.1 And even the courts of equity, though construction of municipal ordinance); Gage v. Allen, 1894, 89 Wis. 98; 61 N. W. 361, (money paid by assignee of insolvent to a creditor not entitled to receive it but thinking he was obliged to do so because of a judgment). And see Heath & Milligan Mfg. Co. v. Nat. Linseed Oil Co., 1901, 99 111. App. 90; aff. 1902, 197 111. 632; 64 N. E. 732, (payments made for oil at 7.50 lbs. per gal. when statutory gal. weighed 7.761); Bond v. Coats, 1861,16 Ind. 202, (promise to pay an unenforceable claim, made under mistake as to legal obligation, enforced). Cf. Rawson v. Bethesda Baptist Church, 1905, 123 111. App. 239; aff. 1906, 221 I11. 216; 77 N. E. 560; 6 L. R. A. (N. S.) 448. Contra: Mansfield v. Lynch, 1890, 59 Conn. 320; 22 Atl. 313; 12 L. R. A. 285, (mistake as to administrative law); Culbreath v. Culbreath, 1849, 7 Ga. 64; 50 Am. Dec. 375, (mistake as to law of distribution of estates); Scott v. Board of Trustees, 1909, 132 Ky. 616; 116 S. W. 788; 21 L. R. A. (N. S.) 112, (liquor license); Lawrence v. Beaubien, 1831, 2 Bailey (S. C.) 623; 23 Am. Dec. 155, (mistake as to rights in land). See also cases post, Sec. 37.
1 Brisbane v. Dacres, 1813, 5 Taunt. 143, (share of freight money paid to admiral of fleet by captain of war vessel in accordance with custom though not required by law); Henderson v. Folkstone Waterworks Co., 1885, 1 Times L. R. 329; Elliott v. Swartwout, 1836, 10 Pet. (U. S.) 137, 153, (excessive duties paid revenue officer); Town Council of Cahaba v. Burnett, 1859, 34 Ala. 400, (liquor license money paid under ordinance subsequently held void); Maryland Casualty Co. v. Little Rock, etc., Co., 1909, 92 Ark. 306; 122 S. W. 994, (additional premium paid on class of employees not covered by the terms of the policy); Brumagim v. Tillinghast, 1861, 18 Cal. 265; 79 Am. Dec. 176, (money paid for stamps required to be placed on bills of lading by unconstitutional state law); Wingertes v. San Francisco, 1901, 134 Cal. 547; 66 Pac. 730; 86 Am. St. Rep. 294, (fees paid by executor to county clerk under unconstitutional statute); Elston v. Chicago, 1866, 40 111. 514; 89 Am. Dec. 361, (assessments paid for improvements in excess of city's powers); Town of Edinburg v. Hackney, 1876, 54 Ind. 83, (liquor license); Coburn v. Neal, 1901, 94 Me. 541; 48 Atl. 178, (payment made in ignorance of the negotiable instruments law); Alton v. First Nat. Bank, 1892, 157 Mass. 341; 32 N. E, 228; 18 L. R. A. 144; 34 Am. St. Rep. 285, (mistake as to negotiability of instrument); Erkens v. Nicolin, 1888, 39 Minn. 461; 40 N. W. 567, (money paid for a quit claim deed to land in ignorance of the rule that distances must yield to natural boundaries called for in the deed); Campbell v. Clark, 1891, 44 Mo. App. 249, (money paid on contract for brick wall); Keazer v. Cole-brook Nat. Bank, 1909, 75 N. H. 278; 73 Atl. 170, (mistake as to law of negotiable instruments); Clarke v. Dutcher, 1824, 9 Cow. (N. Y.) 674, (excess rent paid by a tenant "in ignorance of his own rights"); Flynn v. Hurd, 1889, 118 N. Y. 19; 22 N. E. 1109, (money paid by commissioner of highways in excess of town's share in repair of bridge); Bel-loff v. Dime Savings Bank, 1907, 118 App. Div. 20; 103 N. Y. Supp. 273; aff. 191 N. Y. 551; 85 N. E. 1106, (mistake as to law of wills); Perry v. Newcastle, etc., Ins. Co., 1852, 8 U. C. Q. B. (Ont.) 363, (ignorance as to provisions of statute relating to insurance companies); Scott v. Ford, 1904, 45 Or. 531; 78 Pac. 742; 80 Pac. 899; 68 L. R. A. 469, (ignorance as to law of wills); Ege v. Koontz, 1846, 3 Pa. St. 109, (money paid by garnishee to assignee in bankruptcy of individual creditor); Robinson v. Charleston, 1846, 2 Rich. (S. C.) 317; 45 Am. Dec. 739, (void license); Hubbard v. Martin, 1835, 8 Yerg. (16 Tenn.) 498, (salary paid by disabled judge to defendant appointed to take his place under an unconstitutional statute); Scott v. Slaughter, 1904, 35 Tex. Civ. App. 524; 80 S. W. 643, (money paid for a lease); Mayor, etc., of Richmond v. Judah, 1834,5 Leigh (Va.) 305, (tax paid on mistaken granting relief from mistakes of law in other cases, have refused to permit the recovery of money paid.1 It is the threefold purpose of this chapter: first, to show that the reasons for this hard and fast rule of no recovery are unsound; second, to ascertain what, if any, encroachments upon the rule have been established; and third, by means of an examination of the different and unfortunately conflicting theories upon which equity has granted relief from mistakes of law in other cases, to determine upon the principle which, with proper regard for justice and sound policy, ought to be applied. Mistake of foreign law, and mistake of both fact and law, will also be briefly considered.
1 Clifton v. Cockburn, 1834, 3 Myl. & K. 76, (misconstruction of marriage settlement); Hemphill v. Moody, 1879, 64 Ala. 468, (but court here allowing amount paid by mistake to be set off against claims of heirs of payee); Tiffany & Co. v. Johnson & Robinson, 1854, 5 Cush. (27 Miss.) 227, 232, (payment by sheriff to subsequent execution creditor); Knickerbocker Trust Co. v. Oneonta, etc., R. Co., 1910, 138 App. Div. 687; 123 N. Y. Supp. 822, (money advanced on receiver's certificates issued under order of court reversed on appeal); Stewart v. Ferguson, 1899, 31 Ont. 112, 115, (excessive payments of interest after maturity of mortgage); Beard v. Beard, 1885, 25 W. Va. 486; 52 Am. Rep. 219, (money voluntarily paid after decree of reference not settling liability). And see Powell v. Bunger, 1881, 79 Ind. 468, 471, (injunction against collection, by execution, of costs voluntarily paid by defendant).