In England there is a tendency, in equity cases, to disregard the arbitrary and unjust distinction between the recovery of money paid under mistake of law and relief from such mistakes in other cases. In Rogers v. Ingham,1 which has been referred to as "the modern leading case," it appeared that an executor, acting on the advice of counsel in the construction of a will, proposed to divide a fund in certain proportions between two legatees. One of the legatees, being dissatisfied, took the advice of counsel, which agreed with the former opinion. The executor then divided and paid over the fund, and two years later the dissatisfied legatee filed this bill against the executor and the other legatee, alleging a mistake in construing the will and claiming repayment from the other legatee. The prayer of the bill was denied, but the court appears to have based the decision, not on the ground that there could be no recovery of money paid under mistake of law, but on the ground that complainant having, after deliberation and advice, chosen one of two courses open to him, could not repudiate his election. And Lord Justice Mellish significantly said:

1 Capital Gas Co. v. Gaines, 1899, 20 Ky. Law Rep. 1464; 49 S. W. 462.

2 Bruner v. Stanton, 1897, 102 Ky. 459; 43 S. W. 411; Scott v. Board of Trustees, 1909, 132 Ky. 616; 116 S. W. 788; 21 L. R. A. (N. S.) 112.

3 Metropolitan Life Ins. Co. v. Blesch, 1900, 22 Ky. Law Rep. 530 r 58 S. W. 436.

4 Board of Trustees v. Board of Education, 1903, 25 Ky. Law Rep. 341; 75 S. W. 225.

5 Kentucky, etc., Trust Co. v. Langan, 1911, 144 Ky. 46; 137 S. W. 846.

6 City of Louisville v. Henning, 1866, 1 Bush (64 Ky.) 381.

7 Louisville, etc., R. Co. v. Commonwealth, 1890, 89 Ky. 531; 12 S. W. 1064. See also Brands v. Louisville, 1901, 111 Ky. 56; 63 S. W. 2, (illegal assessment for street repairs).

"I think that, no doubt, as was said by Lord Justice Turner, 'This Court has power (as I feel no doubt that it has) to relieve against mistakes in law as well as against mistakes in fact';2 that is to say, if there is any equitable ground which makes it, under the particular facts of the case, inequitable that the party who received the money should retain it."

In Daniell v. Sinclair,3 a mortgage account had been settled on the footing of compound interest, both parties erroneously supposing that compound interest was legally collectible, and though the court conceded that giving credit in an account was in many respects equivalent to payment, it held that the account might be reopened. "In equity," said the court, "the line between mistakes in law and mistakes in fact has not been so clearly and sharply drawn." 4

1 1876, 3 Ch. Div. 351, 357.

2 Stone v. Godfrey, 1854, 5 De G. M. & G. 90.

3 1881, 6 App. Cas. 181, 190.

4 See also In re Hulkes, 1886, 33 Ch. D. 552; Allcard v. Walker, [1896] 2 Ch. 369, 381. In the latter ease, Stirling, J., speaking of the power of equity to relieve against mistakes of law, said: "No doubt the jurisdiction is one to be carefully exercised and the facts in each case