2 Pomeroy, "Equity Jurisprudence," Sec. 846.

(3) That relief should be granted from mistakes of law made in reducing to writing a contract already agreed upon by the parties, the result being that the language of the writing has a meaning or effect in law different from the intention, as distinguished from a mistake with regard to the legal meaning or effect of a written instrument agreed upon as representing the contract between the parties.

This theory is a very popular one with both text writers and judges,1 and is invariably sought to be supported with the argument that in the first-mentioned case there is no mistake as to the legal import of the contract actually made, but the mistake of law prevents the real contract from being embodied in the written instrument. The distinction, however, has been thought by careful students to be unsound. The strongest and clearest indictment of it, perhaps, is that of Mr. Bigelow, who says:2

"The writing is agreed upon as stating the contract in the one case as much as in the other. It matters not whether the parties say 'Here are the facts, and here is what on deliberation we want to do,' and then accept from the draftsman the written instrument and execute it as embodying their intention; or 'This writing on consideration we accept as truly expressing our intention and fix our signatures to it accordingly.' The second act may imply more deliberation concerning the writing; but in neither case may the deliberation have touched the legal difficulty which finally arises. . . . The distinction is trifling; it does not go to the root of the matter."

(4) That relief should be granted from mistake as to a clear and established rule of law, as distinguished from mistake as to a doubtful and unsettled rule.3

Thus stated, this modification certainly cannot be supported. In the first place, it amounts to saying that the better known is a rule of law the less responsible is one for failing to know it. And in the second place, it seems certain that it would often be difficult to decide whether a given rule of law were clear and established or doubtful and unsettled, and that the varying conclusions of different courts would lead to embarassment and confusion. An examination of the earlier cases in which the rule is stated, however, shows the probability that the intention was to distinguish unconscious from conscious ignorance of the law. Thus, in. Naylor v. Winch,1 Vice Chancellor Sir John Leach said:

1 Pomeroy, "Equity Jurisprudence," Sec. 843, and eases cited. Story, "Equity Jurisprudence" (13th ed.) Sec. 114, and cases cited.

2 Note to Story, "Equity Jurisprudence" (13th ed.) Sec. 110; also 1 Law Quart. Rev. 303.

3 Story, "Equity Jurisprudence" (13th ed.) Sec. 121, and cases cited.

"If a party acting in ignorance of a plain and settled principle of law, is induced to give up a portion of his indisputable property to another under the name of compromise, a court of equity will relieve him from the effect of his mistake. But where a doubtful question arises, such as this question of construction upon the will of the testator, it is extremely reasonable that parties should terminate their differences by dividing the stake between them, in the proportions which may be agreed upon."

In other words, the distinction is between a genuine compromise, the parties knowing that they may be surrendering legal rights, and a settlement made " under the name of a compromise " but really in total and unconscious ignorance that any possible legal right is yielded. Stated in this way, the rule, as far as it goes, is perfectly sound, and is applicable alike to mistake of law and mistake of fact.2 Moreover, it obviously suggests the further-reaching modification next to be considered.

(5) That relief should be granted, unless at the time of the act there was present to the mind of the actor a doubt as to the law.

To put the distinction in another way, if one is conscious of a doubt as to his legal rights or duties, and with or without deliberation, with or without advice, chooses and enters upon a course of action, he should not be permitted to repudiate his choice; but if one conceives and enters upon a course of action in unconscious ignorance of any question as to his legal rights or duties, relief should be granted.

1 1824, 1 Sim. & Stu. 555, 564.

2 Mr. Pomeroy escapes Sir John Leach's conclusion by insisting that he referred to family compromises only - such being governed admittedly by different considerations.

This theory is most ably supported by Mr. Bigelow,1 who contends that it is the true doctrine of the leading case of Hunt v. Rousmanier,2 except that there it appears that in order to bar relief the choice must have been deliberately made. To quote Mr. Justice Washington :3

"We mean to say, that where the parties, upon deliberation and advice, reject one species of security, and agree to select another, under a misapprehension of the law as to the nature of the security so selected, a court of equity will not, on the ground of such misapprehension, and the insufficiency of such security, . . . direct a new security."

The notion that deliberation is essential to the denial of relief has appeared in other cases. For example, in Rogers v. Ingham,'1 Lord Justice James said:

"Where people have a knowledge of all the facts, and take advice, and whether they get proper advice or not, the money is divided and the business is settled, it is not for the good of mankind that it should be reopened."

But the test of choice - with or without deliberation - seems to be the more scientific one, and while, as has sufficiently appeared, the authorities on the subject are in the utmost confusion, there is no doubt that a large number of cases may be brought into line with it.5 Moreover, it is a test which is supported by the cases of money paid under mistake of fact. For while it is there generally held that negligence in not knowing the fact is not a bar to recovery (ante, Sec. 15), an examination of the cases will show that in most if not all of them the negligence referred to is an unconscious negligence - that is to say, the plaintiff, at the time of payment, entertained no doubt as to the facts. And, conversely, it is held that when the fact is disputed or acknowledged to be in doubt, a payment once made cannot be recovered (ante, Sec. 17).

1 Story, "Equity Jurisprudence" (13th ed.) Sec. 110, note on mistake of law ; also 1 Law Quart. Rev. 303.

2 1823, 8 Wheat. (U. S.) 174; 1828, 1 Pet. (U. S.) 1. 3 1 Pet. (U. S.) 17. 4 1876, 3 Ch. D. 351, 357. 5 SeeBigelow'snote to-Story, "Equity Jurisprudence" (13thed.) Sec. 110.

It is submitted, then, that this test of the jurisdiction to relieve from mistake is the true one, and that it would prove as satisfactory in cases of mistake of law as it has already proved in cases of mistake of fact. And it is respectfully urged upon our courts and legislatures that without abrogating the present rule denying recovery of money paid under mistake of law, but by confining its application to cases in which the money appears to have been paid with the consciousness of a doubt as to the law, the hardship of the rule will be minimized if not entirely eliminated, and the whole law of relief from mistake placed upon a basis of sound and consistent policy.