
    The following case, and that which succeeds it, were argued and determined at the preceding Charleston term; but copies of the _ opinions could not be obtained by the Reporter in time to insert them among the cases .of that term.
    Shubael Lawrence v. Des Rivieres Beaubien.
    A mistake of law is a ground of relief from the obligations of a contract, by which one party acquired nothing, and the other neither parted with any right, nor suffere'd any loss, and which ex cequo et tono ought not to be bind- ■ ing; and it makes no difference, that the parties were fully a'nd correctly informed as to the facts, and the mistake as to the law was reciprocal. But there must be evidence of a palpable mistake, and not mere ignorance of the law; nor will the contract be set aside, if it appear to have been the compromise of a' doubtful right, or to have been entered into, by' the party seeking to be relieved, as a speculating bargain.
    The maxim, ignorantia juris non excusat, applies, in civil cases, only where redress is sought for a wrong done, or a right withheld.
    Nothing can be inferred upon a special verdict; but what is not' ascertained by it, will be supposed not to exist.
    Tried before Mr. Justice Huger, at Coosawbatchie, Fall Term,-1827.
    This was an action of debt on a bond, with condition for the payment of $3,500. The defendant pleaded the general issue; and th.e jury found the following special verdict-: “We find the writing obligatory declared upon in this case to be the act and: deed of the defendant. We further find,- that Abraham Isaacs, late of Beaufort, deceased, by his last will and testament devised and bequeathed his whole estate, real and personal, to the defendant, Des Rivieres Beaubien, who is a native of the kingdom of France, and who at that time had taken the preparatory oath, f«Jbut not the oath of naturalization required by the Act of Congress : that among other things devised, was a tract of land on Port Royal Island; and that the testator at the time of his death left a son, Samuel F. Isaacs, his only heir at law, who interposed a claim to the said-land: that the defendant was advised by counsel that he could not- hold the real estate; but that the testator had died intestate as to the land, which therefore descended to Samuel F. Isaacs, the son: that the defendant, being desirous of becoming the owner of the said land,-entered into a negotiation therefor with the said Samuel F. Isaacs; and that tjje Samuel F. Isaacs duly executed a deed of assignment, t0 Alexander Come, of all his right, title, and interest, in and to the real estate whereof Abraham Isaacs died seized, in trust £.oJ, tjle defendant, a copy of which deed is hereunto annexed and made part of this verdict: in consideration of which said ássignment, the defendant executed the bond on which this action is brought. We further find, that the said Samuel F. Isaacs afterwards assigned the bond aforesaid to the present plaintiff: that the defendant has since taken the oath of naturalization ; and that the Legislature of this State, on the application of the defendant, which application was not opposed either by the said Samuel F. Isaacs, or the present plaintiff, relinquished whatever rights it possessed in the said land to the defendant. We further find, that by an act of the Legislature, all escheated property in the Parish of St. Helena, including Port Royal Island, was vested in the Beaufort College, uutil the receipts from such property should amount to five thousand pounds sterling: and that the defendant has, ever since the execution of the deed of assignment aforesaid,' been m peaceable and quiet possession of the said land, without any interruption, or disturbance from, or any claim interposed by, the said College. If upon the whole matter, &c.”
    Upon this verdict the presiding Judge ordered as follows: “ The Court is of opinion, that the plaintiff is intitled to recover. There was no concealment, or misrepresentation on his part. The defendant was well acquainted with all the facts of the case, and if he was mistaken in any respect it was as to the law; and for this mistake he has no remedy at law. Let the ■postea be delivered to the plaintiff.”
    The defendant appealed, and moved to set aside the judgment with leave to enter up judgment for the defendant, on the ground, that the bond was executed under a clear mistake; and that against the consequences of such a mistake the defendant is relievable.
    The appeal was argued at Charleston, in March, 1828, and again in 1829, but no decision was made. Two members of the Court, Colcock, and Johnson, Justices, were.understood to be divided in opinion; and Nott, Justice, doubted. It came on for argument a third time in February, 1831.
    
      
      S. G. Holmes, for the motion.
    It is perfectly clear, that Isaacs had neither right, title, nor interest in the land, for which the bond was given. His title, by descent, was defeated by the will; and although the land was liable to escheat, yet the devisee was intitled to hold until office found. Vaux v. Nesbit, 1 M’C. Ch. 352. Beaubien, in fact, purchased land which was already his own; and although his title was defeasible, yet the assignment from isaaes did not cure the defect, nor did it deprive Isaacs, himself, of any right which he before possessed. It will be urged, that the bond was given to compromise a doubtful right; and that it was intended to prevent competition in an application to the Legislature for a grant of the escheat: but, in the first place, there was no right to compromise; and in the second, it is palpable, that neither compromise, norbuying off competition, were intended, but that the parties regarded their bargain as an absolute sale. Isaacs believed, and represented, the title to be in himself; and Beaubien was advised, and believed, that it was so: and, under this impression, the one bought, and the other sold. The mistake is clearly ascertained by the verdict; and it is clear, not only that the bond was without consideration, but that a consideration was intended, which did not exist, and which was only supposed to exist from a mistake of the law. It was executed under a mistake of the law, and this mistake constituted the only consideration; and the question is whether such a bond can be enforced.
    Cases are to be found, in which it has been ruled, that a mistake of law will not be relieved against; but that rule has never been applied, except in cases where the evidence was excluded by the nature of the contract, or where ex cequo et bono the party ought not to have been relieved, 5 Taunt. 158. Where these objections do not exist, relief will be granted.
    Thus in Bingham v. Bingham, 1 Yes. Sen. 126, where the plaintiff had purchased his own land, the defendant was decreed to refund the purchase money with interest, on the ground that it had been paid by mistake. And the decision is put expressly on that ground, by the Master of the Rolls, who conceded that there had been no fraud.
    The cases recognize a distinction between ignorance and mistake. Thus in Leonard v. Leonard, 2 Ball & Beatty, 180-3, it is laid down, that where the parties are ignorant of their rights, and enter upon a compromise, they are both bound by it; but when both suppose the right to belong to one of them, and they treat as such, but are both in error, this is mistake, and not ignorance of law, and may be relieved against. And the distinction is also recognized by Lord Rosslyn, in Fletcher v. Toilet, 5 Ves. 14.
    But the leading case on the subject of mistake is that of Lansdown v. Lansdown, M'osely, 364. There the second of four brothers having died seized of lands, the eldest entered : but the youngest having set up a title to it, they referred the matter to a schoolmaster, who decided in favor of the younger brother, on the ground, that, by the English law, lands cannot ascend. The brothers then divided the land, and deeds were executed; but upon a bill filed for the purpose, the Lord Chancellor decreed that they should be delivered up to be cancelled, on the ground that they were executed under a mistake of law. This case has been the subject of some criticism, but it has never been overruled; and has been regarded as an authority, by no less a jurist than Chief Justice Marshall. 8 Wheat. 215.
    In Gee v, Spencer, 1 Vern. 32, a release executed under a misapprehension of the law was set aside.
    In Onions v. Tyrer, 2 Vern. 741, and 1 P. Wms. 343, S. C. a will, cancelled under a mistaken belief that a subsequent will was legally executed, was allowed to be set up as a good devise of lands. IJpon the same principle, and on the authority of the last mentioned case, a cancelled deed was set up in Perrott v. Perrott, 14 East, 440.
    An election made under a mistake of law was set aside in the case of Pusey v. Desbouvrie, 3 P. Wms. 315.
    The general principle was recognized by Lord Macclesfield, in Cann v. Cann, 1 P. Wms. 727.
    So also by Chief Justice Marshall, in Hunt v. Rousmanier, S AVheat. 174: and although that case ultimately went off upon another ground, the opinion of the Chief Justice was not-impugned. 1 Peters, 9, S. C.
    It is now well settled, that wherever money is paid, which, ex aequo et bono, the party is not intitled to retain, it may be recovered back. Such was the case of Moses v. Macferian, 2 Burr, 1005 ; a case in which Lord Mansfield carried the principle so far, as to sustain an action for money which had been recovered 
      mala fide in an inferior Court. It is true, that ease has been overruled, as to the latter point, Marriol v. Hampton, 7 T. R. 269 ; but the general principle contended for is not denied. So too, the policy of the law forbids the recovery of money paid in pursuance of an illegal contract, as in Lowry v. Bourdieu, Doug. 468. But, with these exceptions, the.rule is of universal application.
    The cases upon mistakes are numerous, and no distinction is made between a mistake of law and a mistake of fact. De Grey, C. J. classes them together, in Farmer v. Arundel, 2 W. Bl. 825. Lord Thurlow expresses a similar opinion in Jones v. Morgan, 1 Bro. C. C. 219- And the principle will be found to run through all the cases. Size v. Dickason, 1 T. R. 286. Malcolm v. Fullarton, 2 T. R. 645. Bromley a. Holland, 7 Vesey, 23. Knox v. Symonds, 1 Id. 369. Ching v. Ching, 6 id. 282. Kent v. Elstob, 3 East, 18. Young v. Walter, 9 Vesey, 36'4. And see the cases collected by Mr. Evans in his appendix to Pothier on Obligations, 2 Evans’ Pothier, 320, et seq.
    
    There is however a distinction, which has already been adverted to, between ignorance and mistake, but which has been lost sight of in several of the cases; and hence the notion that a mistake of law cannot be relieved against. Such were the cases of Brisbane v. Dacres, 5 Taunt. 142. Stevens v. Lynch, 12 East, 38, and Bilbie v. Lumley, 2 Id. 469. The distinction is however to be distinctly traced in all the decided cases; and it is founded on the soundest reason. A mistake, if it existed, is susceptible of direct proof; whereas ignorance cannot be established but by the most uncertain and unsatisfactory inferences. To admit the latter as an excuse would, therefore, open a wide door to perjury, and in effect arrest the operation of law. It is not, therefore, received as an excuse; but that is the extent of the rule: and the maxim, ignorantia juris non excusat, by its very terms, is applicable only to delinquencies.
    The defendant in this case is not a delinquent. * The proof of his mistake, as distinguished from mere ignqrance, is clear; and morality and law concur to rid him of the obligation of his bond.
    Bailey, contra,
    It is conceded that ignorance of the law is no excuse, and that to allow it would arrest the operations of law; but it is said that the prohibition extends only to delinquencies, and that, moreover, ignorance is not mistake. It is difficujt perce¡vej why, if the admission of such a defence would arrest die operation of law in relation to delinquencies, the same result will not ensue with regard to the law of contracts. No reason has been, or can be assigned, for a different operation of the principle in the two cases; and if it is clear, that it would render all penal laws nugatory, it is equally obvious, that it would set all contracts afloat. The distinction between ignorance arid mistake is equally idle.- In what does it consist 1 The idea seems to be, that when parties deal without reference to the law, that is ignorance ; but when they contract under an erroneous belief of wliat the law is, it is mistake. But a slight reflection will suiflce to shew, that this notion is, practically, an absurdity. Parties cannot deal in ignorance of the law, as ignorance is thus defined. If they deal at all, it must be in relation to rights, which one or the other of them is supposed to possess; and the very idea of a right includes the sanction of law, so that if the parties are in error at all, then, according to the definition, it must in all cases be mistake, and not ignorance. It may be said, that ignorance is passive, mistake' active : if so, then the rule contended for by the defendant amounts to this, that ignorance is no excuse, only- in those cases where the party has entered into no contract, or been guilty of no delinquency, and stands in need of no excuse. But it is said that mistake is susceptible of direct proof, and ignorance not; then ignorance becomes mistake whenever it is proved to exist. View the distinction in any way, it reduces ignorance to a mere abstraction, and renders every error, technically, a mistake. tTJie maxim igriorantia juris non cxcusat is therefore utterly destitute of meaning, and incapable of practical application in any case whatever.
    That mistakes of fact will, in many cases, be relieved against, will not be denied. The principle itself, as well as the cases in which it is applied, are ascertained by numerous decisions. It is recognized in books of reports without number, and in all the elementary treatises; and no Court would listen to argument upon the soundness of the general principle. And, at the very outset of the present inquiry, the remark suggests itself, that there would be as little grouud for doubt, whether relief would be afforded against a mistake of law ; unless from the very beginning a distinction had been made between mistakes of law, and of fact. Now it not only can be shewn, that the principíeos not acknowledged, as one clear of doubt; but the assertion may be safely hazarded, that not a single well authenticated case can be produced, in which relief ha? been granted on a mere mistake of law: nay, we may even go further,' and deny, that even a dictum, to that effect can be found, which is not attended with circumstances that destroy all its authority. For the first branch of. this assertion we have no less an authority than that of Chief Justice Marshall; who, in the case of Hunt v. Rousmanier, although evidently captivated with the seeming equity of relieving against mistakes of law, yet candidly acknowledges, after a review of all the cases, that “we do not find the naked principle, that relief may be granted on-account of ignorance of law, asserted in the books.” 8 Wheat. 215. And, astounding as this declaration may be, after the numerous cases which have been cited'on this occasion, an examination of those cases will shew the declaration to be perfectly well founded.
    The case of Lansdown v. Lansdown, Mosely, 364, has been, with great propriety, designated as the leading case in favor of the doctrine. It deserves that appellation, because it not only happens to be the only case in which relief has been ’afforded on the express ground of mistake in the law; but every dictum to be found, any where, in favor of the doctrine, where any authority at all is vouchsafed, is referred ultimately to Lansdown v. Lansdown. Let us test the value of this case. Two brothers laid claim to the- lands of a deceased brother, and to avoid a law suit compromised their dispute, by dividing the lands between them: deeds were executed, and money paid by the younger brother to the elder; and yet Lord Chancellor King set aside the compromise, and ordered the deeds to be delivered up and can-celled, on the ground that the title was in the elder brother. Now, it is obvious, that this decision strikes at the root of all compromise of disputes; for it is of the very essence of a compromise, that pre-existing rights are merged in it: nor can mistake of law be a ground for setting aside a compromise, because every compromise is based upon the uncertainty of the legal rights of the parties; and therefore originates in that active ignorance which, we are told, is to be technically denominated mistake. Hence Chief Justice Marshall well admits, that “ there aré certainly strong objections'to this decision.” .8 Wheat. 215. And indeed no one now would have the hardihood to maintain, that a mistajle 0f iavv was a ground for avoiding a solemn cómprom*se- Washington, J. was of opinion that the case is not correctly reported, 1 Peters, 15 : and there is this ground for the j . . , , T ’ „ . , ° , . supposition, that the Lord Chancellor is made to say, that ignorantia juris non excusat applies only to crimes; an assertion which, certainly, would not have been made by any one, who valued his reputation for an acquaintance with the rules of the common law. It is perhaps, too, worthy of remark, that Lord Mansfield, more than once, absolutely forbade the reading of Mosely’s Reports, 5 Bur. 2629. See also 3 Anstr. 861. And it is unfortunate for the reputation of Lord King, that we have no other records of his judgments than the reports of Mr. Mosely; so that it must always remain a matter of speculation, whether it is to him, or to his reporter, that we are indebted for this extraordinary case of Lansdown v. Lansdown. , But the true and conclusive answer to that case, is, that there does not appear to have been any mistake of law at all to be relieved against. It is expressly stated in the report, that “ the eldest brother agreed to divide the estate with the youngest, and declared he would rather do so than go to law, though he had the right.” He entered into the compromise, therefore, with a full knowledge of his rights; and it is clear, that whatever may be the value of the case, and for whatever else it may be a good authority, it is not a case of relief granted against a mistake of law.
    The case of Bingham v. Bingham, 1 Ves. Sen. 126, is very briefly and unsatisfactorily reported. It is stated that there was no fraud, but it is not stated whether the mistake was of law or of fact; and there is not a syllable said as to mistake of law being a ground of relief. It would appear from a note to this case in Belt’s Supplement, 79, that the mistake was of law; but it is also stated that it was a case of misrepresentation. So that whether we take the report, or the note, or both together, the case is not one of relief against a mere mistake of law.
    Now of all the cases which have been cited, these two alone could be brought forward, with any degree of plausibility, as authorities for the doctrine. In every other there was either palpable misrepsesentation, or other fraud; or mistake of facts on one side having all the effect of fraud on the other; or else the relief was refused: and in many of the cases referred to, the question was not made at all, but some loose dictum has been wrested from the context, and enlisted in support of the doctrine, contrary to the manifest intention.
    Thus the opinion of Lord Chancellor Manners, in the case of Leonard v. Leonard, 2 Ball <fc Beatty, 180, has been cited for the alleged distinction between ignorance and mistake. Büt on referring to his opinion it will be found, that although his Lordship distinguishes between a release and a compromise, he no where makes any distinction between ignorance and mistake, but uses either word indifferently. And as to the decision in that case, it went upon the acknowledged ground of “ a misrepresentation and suppression of facts in the knowledge of one of the parties only.”
    In Fletcher v. Toilet, 5 Fesey, 14, Lord Rosslyn does say, in a parenthesis, that “ ignorance is not mistakebut he does not define the distinction. Let us test the distinction by that case. The object of the plaintiffs was to set aside a decree for barring an equitable estate tail, on the ground, that it was made.by mistake ; which, by the way, was a mistake of fact, and not of law. Now at the time of the decree, the Court was ignorant of the existence of an old conveyance of the reversion ; and therefore, says Lord Rosslyn, the decree was made in ignorance of this fact. But, it may be asked, would the decree have been made, unless the Court had supposed that all the parties in interest were before it? Unquestionably not. The decree was made on the supposition that the entire right was in the parties to the suit; and that supposition being erroneous, by reason of the existence of the old conveyance, of which the Court was ignorant, it was a mistake, within any definition, which has been attempted, of the terms. - Thus shadowy and unsubstantial is the distinction between ignorance and mistake. The decision in Fletcher v. Tollett was against the relief sought.
    The case of Gee v. Spencer, 1 Fern. 32, was one of fraud and misrepresentation. The report is a mere note; but still it is distinctly stated, that the party “ was made to believe, &c.”
    In Onions v. Tyrer, the question was as to the intention. The first will was not revoked by the last, for that was. not executed: and the Court was inclined to think that it was not revoked by cancelling, as to the land, the only matter as to which it was offered to be set up, because the second will was a mere copy of the first in relation to the land; and consequently the destroying- of one of. the copies could not be said to have been done animo revocandi, as to the devise. But the Lord Chancellor rested his decree, at last, on the defect of proof, as to the fact of cancellation. 1 Vern. 742. It was clearly not a case of relief against a mistake of law; and not a word is said in it on that doctrine.
    The case of Perrott v. Perrott, 14 East, 423, was in relation to the execution of a power of appointment. The Court held the execution revocable in its nature; and the question on the cancellation was therefore as to the intention : and there is, manifestly, a vast difference between a voluntary instrument, deriving all its validity from the intention of the party; and one which is the evidence of a contract between different parties.
    The case of Pusey v. Desbouvrie, 3 P. Wms. 315, does, at first view, appear to be a case of some weight, in favor of the principle of relief on the ground of mistake of law. The Lord Chancellor says, or at least is made to say, that he does not see that there has been any fraud, “ but still it seems hard a young woman should suffer from her ignorance of the law.” In a subsequent paragraph, however, his Lordship remarks', that “ the defendant did inform the daughter, that she.was bound either to waive the legacy, or her right by the custom.” So that she was not ignorant of the law, but of the fact, that her orphanage share was of four times the value of the legacy; and as this fact'was known to the defendant, and he, as the Lord Chancellor himself says, was bound to disclose it, his omission to do so was a suppressio veri, which was a fraud. It was not, therefore, a case of relief against a mistake of law; and what is more, it was not a case of relief at all. For the Lord Chancellor did not overrule the plea, but ordered it to stand for an answer; and after-wards the parties compromised.
    The case of Gann n. Cann, 1 P. Wms. 727, has been cited as recognizing the doctrine contended for. But that case is entirely the other way; and the dictum of Lord Macclesfield obviouly refers only to a supposed case of concealment, or'fraud.
    In Hunt a. Rousmanier, 8 Wheat. 174, Chief Justice Marshall certainly exhibited a disposition to adopt the doctrine contended for; but, after reviewing the cases, he admits that no authority can be found for it. He did not therefore act upon the doctrine; but merely overruled the demurrer, with leave to defendant to answer over, so as to reserve the question: and when the case again came befóte the Court, the decree was for the defendant. 1 Peters, 1. "Washington, J. in delivering the opinion of the Court, declares the general rule to be against relief on the ground of mistake; and adds, that “ whatever exceptions there may be to this rule, they are not only few id number, but they will be found to have something peculiar in their characters.’4 1 Peters, 15. Now what these exceptions are is not stated j and Lansdown n. Lansdown is the only case cited for the existence of any.
    As the case of Moses v. Macferlan, 2 Bur. 1005,, has been overruled, no answer need be given to it. And it is a matter of some surprise that it should have been cited at all; both because the case itself exhibits, very strikingly, thealarming consequences, which must result from admitting the doctrine of relief against mistakes of law, and because Lord Mansfield, in sustaining the action, takes pains to shew, that it did not depend upon that doe5trine. 3 Bur. 1009. And as to the cases of Marriott. Hampton, 7 T. R. 269, and Lowry v. Bourdieu, 2 Doug. 468, there is not only nothing in them, in the remotest degree, countenancing such a principle, but every word said is opposed to it. In Lowry v¡ Bourdieu, particularly, Buller, J. says expressly, “ There was no fraud on the part of the underwriters, nor any mistake in matter oí fact. If the law was mistaken; the rule applies, that ignorantia juris non excusat.” Doug. 471.
    The case of Bize v. Dickason, I T. R. 286, was a case of mistake of facts; and Lord Mansfield’s opinion must be understood with reference to the subject matter. There is nothing in what he says which has reference to a mistake of law. As to the several cases cited from 2 W. Bl. 825, 2 T. R. 645, 7 Ves. 23, 1 Id. 369, 6 Id. '282, 3 East, 18, and 9 Ves. 364, on this subject they contain nothing but. obiter dicta, all of them extremely loose, and many of them having scarcely a remote application to the question.. Decidedly the strongest of them is Farmer v. Arundel, 2 W. Bl. 824, where Chief Justice De Grey is understood to say, that money paid under a mistake “ of fact, or of law,” may be recovered; and this whilst he is deciding, that the plaintiff in that action, who had paid money, which he was not bound to pay, either in law, or in conscience, and which he had paid under a mistake of law, could not recover it back. Tbs dictum, is one way, and the decision the other; a circumstance which recalls to mind the remark of Lord Mansfield, that “ we must not always rely on the words of reports, though under great names: Mr. Justice 'Blackstone’s Reports are not very accurate.” Vide Doug. 93, note.
    But Pothier and the Pandects have been summoned to the support of the defendant’s doctrine; and it is urged upon the Court as having its foundation in principles of a sound morality. The civil and the common law, in relation to contracts, differ, not so much in principles, as in the application of them by fixed rules and maxims. The maxims #>f the civil law are little else than the precepts of morality; and to enforce them the oaths of the parties, and every species of evidence which could throw the-smallest light upon the matter in controvery, are admitted, and weighed with as great nicety as the limits of human judgment will admit. The common law, on the contrary, entertains greater jealousy of perjury, than confidence in the ability of a judge to ascertain the truth by means of human testimony. Hence only the most unsuspicious evidence is received; and for the oaths of the parties certain arbitrary maxims, such as caveat emptor, ignorantia juris non excusat, &c. are substituted, which preclude perjury, by excluding the strongest temptations to commit it. Whether, in the final result, the ends of justice are better attained by the one system, or the other, is not a question now to be discussed: the common law system is that by which this Court is to be governed. But it is obvious, that for the reason stated, the maxims of the common law must be more remote from the precepts of morality, than those of the civil law; although both tend in their results to the same end, the enforcing those precepts in the affairs of mankind. But in each system all the parts are connected, and if any part is altered, confusion must ensue, unless the whole be re-adjusted. Thus to introduce the maxims of the civil law into our practice, without altering our forms of procedure, and rules of evidence, cannot fail to lead to disastrous results. Of this we have had woful experience in the flood of disgusting litigation, which has poured into our Courts by the introduction of the doctrine of implied warranty; and the Court will scarcely feel any temptation to engraft this new slip, of relief against mistakes of law, if it shall trot appear to have a solid foundation in the maxims of the common law.
    As to the cases collected by Mr. Evans in his appendix to Pothier, nothing more need be said, than this; that if an ingenious man is willing to rake up all the loose dicta of judges, and arguments of counsel, and give them a shape and meaning to suit his purpose, he may establish ány position he pleases: and that is precisely what Mr. Evans has done.
    Most of the cases cited by Mr. Evans have been already examined ; but there are a few more, which are sometimes cited in support of the doctrine, upon which it may be proper to remark.
    The editor of Ves. Sen. in a note to Bingham v. Bingham, 1 Ves. Sen. 126, refers to the cases of Milner v. Milner, lb. 106. Cocking v. Pratt, lb. 400, and Ramsden v. Hylton, 2 Id. 304, Now in the first of these the mistake was in the computation of a legacy ; in the second of the value of a fund ; and-in the last it was as to the existence, not the legal effect, of a settlement. They were all therefore cases upon mistakes of fact. Nor were the two last altogether free from the imputation of fraud.
    There are some other cases, such as Simpson a. . Vaughan, 2 Atk. 33, which have some times been relied on ; but these are disclaimed by Chief Justice Marshall, and no better answer need be given to them than his remarks, vide 8 Wheat. 212.
    The case of Warder v. Tucker, 7 Mass. 449, has sometimes been cited as a case of relief against a mistake of law. It is not however, a case of that character. The question was whether the defendant had waived the laches of the holder of a bill; and it was held, that a promise to pay, made without a knowledge that his liability was discharged, was not a waiver. It was a question of intention, and how could a party be supposed to intend a waiver, when he was ignorant that there was any thing to be waived! -
    The case of Lowndes v. Chisolm, 2 M’C. Ch. 455, was, it is true, a case of relief against a mistake of law; and Colcock, J. in delivering the opinion of the Court, considers the doctrine well established. But the only authorities cited are Hunt v. Rousmanier, in which relief was certainly not granted; and Lansdown v. Lansdown, in which it is just as certain that the party relieved was under no mistake. Vide supra. The case
    Lowndes v. Chisolm, is a peculiar case. The mistake was one, not of the parties merely, but 6f the Courts; and a mistake according to which cases had been, day after day, adjudicated for a quarter of a century. Its principles will not bear an application to. any other- case.
    Upon the whole., with the exception of Lowndes v. Chisolm, there is not a single case to be produced, in which relief has been granted on the ground of a mistake in law. And although some few dicta may be found in favour of the doctrine, there is not one attended with those circumstances which give to a dictum the force of authority. How stands the case on the other-side of the question 1
    From the earliest period of the law we find the maxim, ignorantia juris non excusat, avowed and acted on ; and it is altogether a recent suggestion, that there is a distinction between iguoranee and mistake, or that the maxim is limited to cases of delinquency. The early authorities certainly do not regard ignorance of the law as an excuse for the breach of a contract, more than for any other violation of law.
    Lord Coke was not aware of these distinctions. See Mild-may’s case, 1 Rep. 177, and Manser’s case, 2 Rep. 3, where Coke remarks, “And it is to be observed, quod ignorantia est duplex, viz. facti et juris ; et rursum ignorantia facti (quoad rem nostram attinet) est duplex, videlicet, lectionis et linguoe. Note reader, that ignorance in reading, or ignorance of the language, qua sunt ignorantia facti, may excuse; but, as is commonly said, ignorantia juris non excusat.” And the phrase “commonly said” is thus explained by Lord Coke himself. “ That is, it is the common opinion, and communis opinio is of good authority in law. A communi observantia non est recedendum.” Co. Litt. 186 a.
    In Plowd. 342, ignorance was held no ground of relief; and it was not a case of delinquency. See also Comberbach, 269, 265. Dyer contains several cases, which are thus referred to in his index, title Ignorance: “ Ou ignorance del fait excuse Sfc. ou nemy.''' “ Del ley ne excuse.” A number of other old authorities will be found in a note by the American editor of East’s Reports. 2 East, 472, note (1) Day’s edition.
    The modern elementary writers are on the same side, 1 Mad. Ch. 73. 1 Fonbl. 119. Book 1, c. 2, sec. 7, note (t.) Both state that mistake of law is not a ground of relief. Both state. it is true, that this has been doubted; but the authorities referred to, none of them support the doubt, except the case of Lansdown v. Lansdovvn.
    In Harman v. Cam, 4 Vin. Abr. Chancery (N) 3, it was'held, that “if two men are bound to another, and the obligee releases to one, supposing this will not discharge-the other ; yet ignorantía juris non excusat, and therefore'he shall not be thereupon relieved against the other in a Court of Equity.”
    There are many other cases in which the question has been directly made; and wherever it has stood upon the grou tid of mistake of law, relief has been invariably refused. Mildmay v. Hungerford, 2 Vern. 243, is a very strong case of this kind. Pullen v. Ready, 2 Atk. 591, is of the same character; and in that case-Lord Hardwicke seems to regard all the difficulties of the case as ended, so soon as he has fixed the parties with notice of the facts. For he says, “if parties enter into an agreement, while the will, out of which &c. is lying before them, and their counsel, they shall be supposed acquainted with the consequences of law, and shall not be relieved under pretence of being surprized.”
    The case of JBilbie v. Lumley, 2 East, 469, is a case too plain for mystification. It may be got over, by denying the authority of Lord Ellenborough, and supposing him to be ignorant of the rules of law; but it is to be got over in no other way. He inquired of the plaintiff’s counsel, whether he could state any case, where if a party paid money, voluntarily, with aj full knowledge of all the facts, he could recover it back on account of his ignorance of the law? No answer was given. Was-the counsel paralyzed by the terrors of his lordship’s brow ? Or could he find no case to state ? The latter seems by far the more reasonable supposition. But if there is a case, let it be produced now, Most assuredly none has been produced which comes up to the requisition.
    The cases of Stevens v. Lynch, 12 East, 38, and Brisbane v. Dacres, 5 Taunt. 144, are equally strong and conclusive. Chambre, Justice, it is true, was inclined to bring in the civil law rule; but he was overruled, and triumphantly answered by the three other judges: and the attempt to set up a mistake of law, as a defence, or ground of relief, it is believed, has not been since made in the English Courts.
    
      Clear and decided dicta, such as that of Mr. Justice'Bulle'r iu Lowry v. Bourdieu, Doug. 471, might be cited in abundance; but it is idle to rely upon dicta, when there are decided cases in point.
    It is the less necessary to do so, as the subject has been very ably discussed by Chancellor Kent, in the cases of Shotwell v. Murray, 1 Johns. Ch. R. 512, and Lyon v. Richmond, 2 Id. 51; in both of which relief would assuredly have been granted, if mistake of law could, under any circumstances, be a ground of relief. But Chancellor Kent, after a full investigation, comes to the conclusion, that on principle and authority, mistake of law is not a ground of relief; and in both cases he dismissed the bill.
    If, however, the general principle be conceded, it by no means follows, that the defendant is to be rid of the obligation of Viis bond. It surely will not be contended that every contract is void where the parties to it are not learned in the law. Some limitation there must be to this sweeping defence; and in this respect a mistake of law cannot be of greater avail than a mistake of fact. Now in all the cases which have been cited, and in which relief has been granted on the ground of mistake, the mistake has been only on one side; and it has been more than once decided, that relief will not be granted where the case is otherwise. ' 1 Mad. Ch. 76. This principle will be found to run through all the cases. And see Mortimer v. Capper, 1 Bro. C. C. 158, Fox v. Mackreth, 2 Bro. C. C. 420, 2 Cox, 321, S. C. When the mistake is mutual, the contract has all the attributes of a compromise; which, it is universally conceded, cannot be set aside on the ground of mistake. Cana v. Cann, 1 P. Wms. 727.
    Now here the mistake was not only mutual, but the whole transaction bears on its face the evidence of its being a compromise. The assignment of Samuel F. Isaacs, which is part of the verdict, recites that it was executed “ with the view to settle amicably, and promptly, all matters in dispute,” in relation to the estate real and personal of Abraham Isaacs; and it proceeds, not to convey the land, but simply to assign Samuel F. Isaacs’ right, title, and interest, and there is no clause of warranty. This shews that both parties asserted a right, and that they regarded the contract not as a sale of the land, but as a compromise of doubtful rights. And was there no doubt ? It is said that Isaacs clearly had no right, and the case of Vaux v. Nesbit is referred to : but Vaux v. Nesbit was not decided at the time of the contract; and so far from its being clear, previous to that decision, that a devise to an alien broke the descent, it was fairly to he inferred, from the decision of the Constitutional Court in Scott v. Cohen, 2 N. & M. 293, that whenever such a question came up, it would be decided the other way.
    It must also be an objection to avoiding a contract on the ground of mistake, that the party has made use of the contract, and derived a benefit from it. In Taylor v. Hare, 4 Bos. &. Pul. 260, where the defendant had sold a patent right, and the purchaser enjoyed it for several years, when it was discovered that the patent was void, and the purchaser brought his action to recover back the purchase money, it was held that he could not recover: for, says Chief Justice Mansfield, “non constat what advantage he made of it; for any thing that appears, he may have made considerable profit.” That case is parallel to the present. Beaubien’s title Was defective ; but as soon as he had obtained Isaacs’ assignment, he applied for, and obtained, a Legislative grant of the escheat, and thus perfected his title. Non constat what benefit he derived from the assignment; but assuredly nothing was better calculated to aid the defendant’s application for a grant of the escheat, than the-fact, that he had an assignment of the interest of the heir at law, and had paid $3,500, for it.
    A conclusive objection, however, to the relief of the defendant, is, that the Court cannot, by granting it, replace the parties in statu quo; and the objection is the -stronger, that the difficulty is created by the act of the defendant himself in obtaining the grant of the escheat- The ground of relief is its alleged equity: but he who asks equity, must do equity; and how, if he has himself put it out of his power to do equity? Is it consistent with even decency still to demand relief. Even in Lowndes v: Chisolm the Court went no further than to replace the parties in statu quo. Let the Court do that here, if it can, and we shall be content to give up the bond. In'point of fact the bond was for only half the estimated value of the land: now let the release of the escheat be removed ; restore to Isaacs the opportunity of applying to the Legislature in the character of an only, and disinherited son, asking for the escheated land of his father, and Mr. Beaubien may have his bond. Unless this can he done, it is an insult to justice to preach up a rule of transcendent equity to the Courts; and to obtrude his claim to relief, as based upon the foundations of morality, and good Conscience.
    Petigru, same side.
    The distinction between mistake in fact and mistake in law, as a ground of relief, is supported both by reason and precedent. Those who contend, that a contract without fraud, made by one possessed of a full knowledge of the facts, but mistaken in point of law, is, on account of such mistake, rendered void, ought to show the existence of the rule. The burthen of proof is on them ; but the endeavour to produce a solitary precedent, showing that for mistake in law, a party may be relieved at law, has failed.
    Precedents, however, have been cited from Chancery, which it is supposed recognize the principle. But, surely, we are not to be told, that any thing which will avail in equity, as a ground to set aside a contract, will be good as a defence to an action at law. He, who supposes so, must be very much at a loss to discover the distinction between Law and Equity; or he must suppose that those Courts have a concurrent jurisdiction throughout.
    The cases cited from equity might, therefore, be dismissed with this remark, that they prove nothing to the point. But in fact, the circumstances of this case, do not come within any rule, for relief against contracts, even in equity. In the jurisdiction, which equity exercises over the subject, there is a distinction between contracts executory, and contracts executed. Equity relieves more readily against errors and mistakes in executory contracts, because the subject is open: and in carrying the agreement into effect, it judges of the true intent and meaning of the parties, corrects defects in form, or, if the agreement be unreasonable, refuses the aid of the Court to enforce it. Townshend v, Stangroom, 6 Ves. 334, is a case of this kind. In contracts executed, relief is granted for fraud, error in fact, imposition, and abuse of confidence. But, except the anomalous case from Mosely, there is no instance of a contract set aside, simply on the ground of a mistake of law.
    . If ever mistake in law, could have availed, it would surely have done so .in Irnham v. Child, 1 Bro. C. C. 92. A term had been omitted in the deed, from a mistaken apprehension, that the insertion of it, would be illegal. To reform deeds, when, by mistake, they differ from the agreement, is a well known head of relief. But in that ease, the mistake was merely in matter of law, and the relief was denied.
    The true rule is laid down by Lord Nottingham, in Maynard v. Moseley, with his accustomed brevity, and force: “Chancery mends no man’s bargain, though it sometimes mends his assurance.” 3 Swanst. 655. The case before the Court is so much like Maynard v. Moseley, that the decision seems to be made to our hands'; and we have in our favour all the advantage, that can be derived from the well considered opinion of the greatest light of the English Chancery. In both cases, there is a purchase at an undervalue, from a seller who had no title. In both, the purchaser, with a full knowledge of the facts, solicited the contract, under a mistaken notion of the legal right. In both, the deed of conveyance is a simple quit-claim, without any covenant for the title. And, it is to be hoped, the decision will be the same in both.
    The law must judge by general rules, and if a rule in the great majority of cases promotes justice, dt is a wise one. New evils are to be apprehended from enforcing a strict compliance with contracts; but the mischiefs of rendering them uncertain are incalculable. Some exceptions must be made: and fraud, error in fact, abuse of confidence, &e. are properly held to vitiate any agreement. But why should a new exception be allowed for mistake in points of law ? This would be an exception in favour of speculators. The desire of gain will lead them to risk something on their legal knowledge; and when the risk results in their loss, the same cupidity will iuduce them to get rid of the contract, if they can. For such sufferers our sympathy may well be spared.
    But in fact there is no end to the exception, if once admitted. If takes a long course of education to know the law; and every one, who is dissatisfied with his bargain, may allege that hé was mistaken in the law, if that will be admitted as a defence. Mistakes of law are committed by judges too, as well as by-suitors 5 but the authority of res judicata is not the less, whether the judgment be right or wrong. If a man is bound by a judgment, although erroneous in point of law, why should he not be bound by his contract, which is his own judgment, his own decision upon the easel From a judgment of an inferior Court he may appeal; but if he neglect to appeal, he must abide by the judgment. whatever may be thought of its correctness. So in regará * ° to a contract, there is a locuspcnilentica; he may take as long to-consider of it as he pleases, but after he has finally determined, and positively contracted, the necessity of standing to what is decided, must be submitted to. Suppose that the party does , appeal from the judgment of an inferior Court; human judgment is never infallible, and even in the highest tribunal there is no exemption from error. The error may, at a future day, be discovered and acknowledged; the same Court may afterwards decide differently in a new case; but, still, the authority of the former decision between the parties is unshaken. Why should there not be a way to correct error at all times ? Because it would be' endless, and society has need of repose. For the same reason, the Courts cannot listen to a party complaining of his own mistakes in law. That would indeed be endless.
    The rule, therefore, which denies, to the allegation of mistake in law, the force of a plea, is well supported by reason and analogy; and if it were res integra, no different rule should be laid down. But the law is settled. Bilbie v. Lumley, 2 East, 470, is a judgment of the King’s Bench directly on the point. In Shotvvell v. Murray, 1 Johns. Ch. R. 512, and in Lyon v. Richmond, 2 Id. 51, it has been followed, by Chancellor Kent, a jurist of the highest distinction. And, finally, it has stood the test of the severest scrutiny, and received the sanction of the Supreme Court of the United States, in Hunt v. Rousmanier, 1 Peters, 1. This latter case is doubly instructive, because, it is apparent, that the Court adhered to the old rule, not from a superstitious regard for precedents, but from a well grounded conviction, that the admission of the plea, of mistake in law, would open the door to all the evils of confusion and uncertainty.
    King, in reply.
    The Court will form its judgment exclusively on the facts found by the special verdict; and the important facts, on which that judgment will probably turn are these: that the testator, Abraham Isaacs, had devised to the defendant, the land, for which the bond now in suit was given; that the defendant was advised by counsel, that he could not hold the real estate, but that, as to it, the testator had died intestate, and that it passed to his son,. Samuel F. Isaacs, by descent; and that, in consequence of this advice, the bond was given for the purchase of Samuel F. Isaacs’ right to the land.
    
      Now it is perfectly clear, that the defendant could take the land; that he could hold it against all the world but the State; and that he could hold it, even against the State, until office found. Vaux v. Nesbit, 1 M’C. Ch. 352. Fairfax v. Hunter, 7 Cranch, 603. We contend then, first, that had the defendant,' under the advice which he received, even paid cash for the land to the heir, he would have been intitled to recover it back; and secondly, that much more will he be protected from paying his bond, when such was the consideration for which it was given.
    The leading case at law, on which the plaintiff relies, is that of Bilbie v. Lumley, 2 East, 469. In that case it may well excite surprize, to find the English bar so forgetful of the decisions of their own Courts, as they seem to have - been. Lord Ellen-borough asked the counsel, whether he could state a case, in which, when a party had paid money, with a full knowledge of all the facts, he could recover it back on account of his ignorance of the law: and he received no answer. Now, independently of the case of Chatfield v. Paxton, to which his Lordship, himself, -referred, and which is reported in a note, 2 East, 471, the case of Bize v. Dickason, 1 T. R. 2S6, decided by Lord Mansfield in 1786, is directly in point. The recovery in that case was founded upon a mistake in law; or on nothing. In truth, the law, on which the recovery was had, was established in the case of Grove v. Dubois, 1 T. R. 112. Lord Mansfield lays down the true rule. If the money be due in conscience, although not in law; as a debt barred by limitation; or a debt contracted during infancy; there, if paid, it cannot be recovered. But when paid through mistake, and there was no ground to claim in conscience, there it may be recovered.
    It is contended, that ignorantia juris non excusat; and the words of Mr. Justice Buller, in Lowry v. Bourdieu, 2 Doug. 471, are pressed on the Court. But in that case Lord Mansfield, with his usual admirable discrimination, puts the decision on the true ground; which was, that in pari delicto melior est conditio possidentis. The parties had both been engaged in an unlawful contract; and the law, therefore, in relation to that contract, would not aid the one against the other. It should be borne in mind, also, that Mr. Justice Buller concurred in the decision in Bize v. Dickason: and that case is corroborated by Ancher v. the Bank of England, 2 Doug. 638. \
    
      In Brisbane v. Daeres, 5 Taunt. 143, Chambre, Justice, said, that the maxim, ignovantia juris non excusat, applies only to cases of delinquency; and in that case he thought the plaintiff -intitled to recover that portion of his claim, which consisted of the freight of public money, and which had been paid under a mistake of the law. Indeed, Sir James Mansfield, Chief Justice, and Heath, Justice, agreed that the plaintiff was not intitled to recover, expressly on the ground, that it was neither against honor, nor conscience, in the defendant to retain; thus sanctioning the distinction laid down by Lord Mansfield in Bizea. Dickason.
    In Farmer v. Arundel, 2 W. Bl. 825, De Grey, Chief Justice, said, that “ when money is paid by one man to another, on' a mistake, either of fact or of law, or by deceit, this action (money had and received) will certainly lie.” And Lord Ellenborough, himself, in Perrott v. Perrott, 14 East, 423, holds a language, which is irreconcileable with his decision in Bilbie v. Lumley. “Mrs. Territt” he says, “either mistook the contents of her will, which would be a mistake in fact; or its legal operation, which would be a mistake in law ; and in either case, we think the mistake annulled the cancellation.” Here it is clear, that the Court decide to give relief against a mistake of law; and this involves the very principle denied in Bilbie v. Lumley.
    We are warranted then in coming to the conclusion, that, by the common law, a party may be relieved against a mistake in law. And that conclusion might be insisted on, even though the maxim, ignorantia juris non excusat, were regarded as applicable not only to delinquencies, but to all cases, civil or criminal. The truth is, the maxim does not apply to cases of mistake at all. Mistake is not ignorance alone. It is that, and something more. The distinction has been derided; but it is obvious enough notwithstanding. Ignorance does not know, and does not pretend to know. Mistake is ignorant, but pretends to knowledge. A man knows neither gold, nor silver; and that is ignorance: another knows both, and takes washed silver for gold; that is mistake. Not to know whether an'alien can, or cannot, take by devise, is ignorance on that point of law. To think that he cannot; that the devise is void ; and that the lands go to the heir; this is mistake. It is to think, that that is, which is not. Ignorance is passive; mistake active. Ignorance does-hot know, and does not think it knows; mistake does not know, and yet thinks it does. The distinction, as has been wcli remarked, runs through all the decisions : it is the key to all; and -reconciles the apparent discrepancies between some of them. It is the overlooking this distinction that has led to the doubts, which have sometimes been expressed ; and it is this which has created the only confusion in relation to the subject.
    If we turn to the civil law, we find considerable contrariety of opinion among the commentators, and great names on both sides. The text of the digest does not recognize a distinction between error of law and of fact. Non videntur, qui errant, consentiré. L. 116 § 2 ff. De Reg. Jur. 57. De Oblig. et Act. But Cujacius is of the opinion, that one is not intitled to condition., or repetition, who paid w-hat he did not owe, being misled by error of law. See 2 Evans’ Pothier, 379- Vinnius, however, is of the opposite opinion. See his admirable argument, in 2 Ev. Poth. 379 to 387. Heineccius agrees with Cujacius, with respect to the right of repetition; but with respect to an engagement entered into under a mistake of law, he holds, that no obligation is contracted. His expression is as follows : Disiinquendum, utrum ex ignorantia juris rem tradiderim, eamque velim actione repetere: an earn promissam, ex hujusmodo ignorantia, adhuc possideam, et de ea retinenda sim sollicitus. Priori casu, inquiunt leges, ignorantia nocet, L. 10 c. h. t. posteriore non nocet, sed promittens exceptione tutus. L. 7,8, D. h. t. D’Aguesseau agrees with Yinnius, throughout. See his dissertation, 2 Ev. Poth. 354, to 378. And although Mr. Evans seems to think that Pothier agreed with Cujacius, yet the very reverse is the fact. See his note to De juris et facti ignorantia. L. 22, Tit. 6,iY. 5.
    It has been urged in argument, that the principle of relief against mistakes of law, is peculiar to the Roman law; but it is obvious, that it has been more unhesitatingly admitted, and acted upon, in the Courts of the common law, than by the civilians. The fact is, it is peculiar to neither, but belongs to every code, which has its foundations in the rules pf equity and good conscience.
    It has also been contended, that although the defendant might be relieved in equity, he is remediless at law. But surely if he might maintain an action to recover back the money, if he had paid it, he may, upon the same ground, resist the payment in the first instance. The law will not do so vain a thing, as to require cross-actions between the parties upon the same question. ®ut> however, that might be under other circumstances, yet it is unquestionable, that under our discount law, P. L. 246, what- . , ever would avail as a ground ofreher m equity, may be set up as a defence at law.
    An effort has indeed been made to shew, that even Equity would not relieve against a mistake of law; but the question will scarcely bear argument. The cases of Lansdown v. Lansdown, and Bingham v. Bingham, notwithstanding the criticism they have undergone, are conclusive. The note to the latter case, in Belt’s Supplement, 79, shews the mistake was one of pure law.
    The case of Turner v. Turner, 2 Ch. Rep. i54, is equally decisive. Mortgage money was reserved to the mortgagee, and his heirs. The mortgagee died, and his executors consented to the heir’s receiving the money, and he did receive it from the mortgagor. Yet, what the executors did, being upon a mistake, as thinking the heir was intitled by the terms of the reservation, it was decreed that the heir should pay all that he had received to the executors.
    The principle has been recognized by Lord Manners, in Leonard v. Leonard, 2 Ball & Beatty, 171; by Lord Thurlow, in Jones v. Morgan, 1 Bro, C. C. 219; and by Lord Eldon, in Stockley v. Stockley, 1 Ves. & Beam. 23, 31.
    In has been acted upon by this Court, in the case of Lowndes v. Chisolm, 2 M’C. Ch. 455, a case which received a great deal of consideration, and was decided after full deliberation. There is no avoiding the effect of this case. The question was directly made, and mistake of law was the express ground of the decision. Either that case is not law, or it is conclusive of the question. The same defence was admitted by this Court in Tunno v. Flud ; and if any question ought to be regarded as settled, it should be the admissibility of such a defence.
    The cases of Shotwell v. Murray, 1 Johns. Ch. R. 512, and Lyon v. Richmond, 2 Id. 51, present an apparent exception to the current of authorities, simply because Chancellor Kent has overlooked the distinction between ignorance and mistake; and has therefore misconceived the authorities. The error, however is only in his argument. The decisions were correct; but they do not affect the general principle. It is precisely the case of Hunt v. Rousmanier, 1 Peters, 1; where, although the relief was refused, the previous opinion of Chief Justice Marshall, in 8 Wheat. 174, was not impugned. And, notwithstanding the decisión in 1 Peters, 1, we still have the sanction of that great jurist, and, it may be added, of the whole.Supreme Court, to the doctrine, that mistake in law is a ground of relief from a contract.
    The citing of authorities in support of the doctrine would be endless. The cases of Fink v. Cox, 18 Johns, 145, Warder v. Tucker, 7 Mass. 449, Herbert v. Champion, 1 Camp. 134, and Singleton v. Bremar, Harp. 201, may, however,- be recommended to the consideration of the Court, as illustrating and enforcing the doctrine.
    On the whole, as far as appears from the special verdict, there would be neither justice nor propriety in holding the defendant to the payment of his bond; and the fullest survey of the books, must lead to the conclusion, that he is equally exempt in law.
   Johnson, J.

No question has been raised, as to what were the rights of Samuel F. Isaacs, and the defendant, in the real estate devised by Abraham Isaacs to the latter, and for the price of which the bond, on which this suit is founded, was given: and it is very clear, that under the rule in Vaux v. Nesbit, 1 M’C. Ch. 352, the land was liable to escheat, but that the defendant, although an alien, was intitled take under the devise, and to hold until office found; so that Samuel F. Isaacs had no interest in it, either presently, or prospectively. The defendant, therefore, acquired nothing by his release, and he, Samuel F. Isaacs, parted with no right, nor suffered any loss; and if we add to this, the circumstance, that the defendant acted upon the advice of counsel leárned in the law, we shall have no difficulty in coming to the conclusion, assumed in the argument, that he purchased in the mistaken belief, that he, himself, had no interest in the land, but that on the contrary, the fee was in Samuel F. Isaacs, by descent. The question then arises, whether this contract can be enforced against him; or to put it abstractedly, whether one is bound by a contract, entered into under a mistaken deduction of law from facts which were known to him, by which he acquired nothing, and the party contracted with, parted with no right, nor suffered any loss.

If this proposition is to be considered with reference to the rules of morality, there could be no diversity of opinion about it. The plaintiff seeks, in this action, to recover that, which, of natural right, belongs to the defendant. It is an universal principle, founded in reason, that no one is intitled to have, or retain that, which ex aequo et bono belongs to another: a principle found in every code, and circumscribed in its application only by positiva rules, founded on the convenience and necessities of mankind; and when rightly understood, says Sir Henry Finch, the very maxims and principles of the positive law will yield to it, as to a higher and more perfect law. Finch’s Law, Book 1, Ch. 3.

In the inquiry, whether this principle is opposed in its application to the case under consideration by any other conflicting1 principle, or positive rule, we are met with the maxim, ignorantia juris non excusat; which, it is insisted on behalf of the plaintiff, covers the precise ground, and supersedes it. To allow one to shelter himself from the punishment due to crime, or to excuse a wrong done to, or right withheld from, an individual, under a pretended, or even real ignorance of the law, would uproot the very foundation of society: and in this we see the reason and propriety of the maxim, and the fitness of its application. But there is certainly nothing in the principle, which authorizes its application in a manner calculated to effectuate a wrong; and, unless the principle, ex aequo et bono,is erroneous, clearly it would so operate, if applied to this case. If it is to be regarded as a mere arbitrary rule, and to take effect according to the terms in which it is expressed, it is equally evident, that it was designed as one of the means of attaining right, and preventing wrong. The very necessity for an excuse presupposes that some wrong has been done, or some right withheld. He that has done neither, needs no excuse, for he is already justified; so that whether the rule is interpreted according to its letter, or spirit, its application is limited to those cases, in which redress is sought for a wrong done, or a right withheld. J

The propriety, and necessity, of its application, as the means of enforcing the obligation of contracts, is to my mind an utter perversion of the use for which it was designed; for that is sufficiently attained by other rules, of equal obligation, framed for the express purpose. Amongst these, that, which has the strongest analogy to, that contained in the maxim, is that which provides, that no one shall aver against his own deed: but that is founded on a very different principle. The uncertainty of contracts, and the temptations to perjury, incident to the substitution of facts depending on slippery memory, for those reduced to writing, are the foundation of this rule; and it would seem to furnish, itself, a sufficient security against all abuses, without the aid of ignorantia juris non ezcusat: And yet this rule* whilst it is imperative in the interpretation of contracts, is made to promote the great ends of justice, by letting in proof, that the most solemn contract was obtained by fraud, or duress* or other-corrupt, and illegal means; and I am utterly unable to conceive of any solid foundation for the exclusion of proof, that the consideration was founded in a mistake of law./fAll the difficulty and confusion, which have grown out of th® application of the maxim, appear to me to have originated in confounding the terms ignorance and mistake. The former is passive, and does not presume to reason ; and, unless we were permitted to dive into the secret recesses of the heart, its presence is incapable of proof f but the latter presumes to know, when it does not, and supplies palpable evidence of its existence. Hence it was well remarked by Lord Rosslyn* in Fletcher v. Toilet, 5 Ves. 14, that “ ignorance is not mistake.” )

The case in hand furnishes, I think, materials for an apt illustration of this distinction. The case of Vaux v. Nesbit had been recently decided, when this contract was entered into, and the rule established by it was not generally known to the profession. The defendant did not act of his own head, or confide in his own judgment, but sought the advice of counsel; who instructed him, that the land descended to Samuel F. Isaacs, notwithstanding the will; and upon the faith of this advice he gave the bond sued on. Now I hazard little in affirming, that no one who reasons correctly will doubt: 1st. that the defendant did not intend this bond as a gratuity to Samuel F. Isaacs; nor 2dly* that, acting upon the mistake of his counsel, he did intend it as the price of the fee simple of the land. The proof of the mistake is then clearly made out; but if he had acted of his own head, and confiding in his own unassisted judgment, proof of his ignorance would have been impracticable: and his contract might have been set down to the account of a compromise of a doubtful right, or the improvident investment of money on a speculating bargain; and in either view he would have been bound,

Having premised thus much) I will proceed to notiee a few of ^)e teathng cases, of the very many that have been referred to in the argument. ^That of Bilbie v. Lumley, 2 East, 469, is the first, I believe, in which the rule was broadly laid down, that if one paid money to another, voluntarily,-with a full knowledge of all the facts of the case,- he could .not recover-it back on the ground of his ignorance of the law. jI attach no importance to the circumstance,- that there the action was to recover back money paid, and not, as here, to enforce a contract founded upon a mistake of law; for without intending to enter into the inquiry, whether there is, or is not a difference between the two cases, Í incline to think that there is none in principle: for,.in general, the same principle, which furnishes a protection from loss, supplies also the remedy for a wrong. |But the manner in which that case went off is calculated to lessen its authority as- a precedent. Lord Ellenborough superseded the argument of counsel by inquiring, whether any case could be found, in which it had been ruled otherwise; and his own is summed up in the loose ex-pressipn, that there is- nt> saying, to what extent the excuse of ignorance might not be carried, if it were allowed. If his lordship intended to be understood, as using the term ignorance as distinguished- from mistake, then there would be much ground for the apprehension of abuse, if it were allowed as an excuse; and this because it is not susceptible of proof. But if the term is to be understood as identical with mistake, there is no cause of alarm; for that is susceptible of as direct, and satisfactory proof, as any other matter of fact which can enter into a case. His lordship’s conclusion therefore fails; and if this case stood alone, its authority might well be questioned. Nor do I think it derives much support from the case of Brisbane v. Dacres, 5 Taunt. 143. Gibbs, Justice, it is true, enters fully into the doctrine, and maintains the principle with some show of reasoning ; but that is met, and-, I think, more than refuted, by the able argument of Chambre, Justice, drawn from the authority of decided cases, dicta of learned Judges, and the still greater authority of natural reason. And Sir James Mansfield, Chief Justice, whilst he yields to the authority of Bilbie v. Lumley, evidently puts the case itself upon the ground, that, ex ccquo et bono,- the defendant was i-ntitled to retain the money. So also, Heath, Justice, denied that the fact of ignorance had been made out; and predicates his opinion on the ground, that the law was known to the defendant, and that he took upon himself to decide whether it was best for him to pay the money, or dispute the point with his superior officer, and was concluded by his own judgment.

In Shotwell v. Murray, 1 Johns. Ch. R. 512, and Lyon v. Richmond, 2 Id. 56, Chancellor Kent seems to have adopted the cases referred to, as authority upon the point; but neither of these cases turned upon the precise point. In the first, the mistake was in relation to a collateral matter; and the last was judicium, redditum in invitum.

These are the leading cases on that side of the question, and I will now proceed to notice those on the other. That of Lansdown v. Lansdown, Mosely, 364, is the first in the order of time. That case was this: the second of four brothers died seized of land, and the eldest entered upon it; but the youngest having also claimed it, they applied to a schoolmaster, one Hughes, who often acted as an attorney, for his opinion; and he, upon consulting his books, gave an opinion in favor of the youngest, on the ground, that lands could not ascend; upon which the eldest brother, rather than go to law, agreed to divide the estate, and deeds were prepared and executed accordingly: and the Lord Chancellor, King, decreed that the deeds should be delivered up and cancelled, as having been obtained by mistake, and misrepresentation. If this case be law, there can be no question of its application to the case in hand. Their analogy is so striking, as to render them almost identical; and it is worthy of remark, that although it is now more than a century since it was decided, it does not appear to have been directly overruled. It does not appear, indeed, to have been drawn into the discussion,' either in Bilbie v. Lumley, or in Brisbane v. Dacres.

The principle of it, however, seems to have been fully sustained by the Master of the Rolls, sitting for the Lord Chancellor, in Bingham v. Bingham, 1 Ves. Sen. 126. There, on a bill to have the purchase money, paid for an estate which be» longed to the plaintiff, refunded, on the ground of mistake in law, it was decided for the plaintiff with costs; “ for though” observes the Master of the Roils, “ no fraud appeared, and the defendant apprehended he had a right, yet it was a plain mistake, such as the Court was warranted to relieve against, and not to suffer the defendant to run away with the money, in censideration of the sale of an estate to which he had no right.”

Besides these cases of direct authority, there is an almost endless variety of dicta of the most learned Judges, utterly irreconeileable with a different rule. Thus, in Farmer v. Arundel, 2 W. Bl. 825, Lord Ch. J. De Grey says, that “ when money is paid by one man to another, .on a mistake either of fact or of law, or by deceit,” assumpsit lies to recover it back. And so in Bize v. Dickason, 1 T. R. 286, Lord Mansfield lays down the rule broadly, that “ where money is paid under a mistake, which there is no ground to claim in conscience,” it may be recovered back in assumpsit. In short, it is difficult to turn to any book of authority, in which you will not find the principle of the rule broadly laid down, under some form or other.

In Hunt v. Rousmanier, 8 Wheat. 215, Chief Justice Marshall remarks, that “ although we do not find the naked principle, that relief may be granted on account of ignorance of law asserted in the books, we find no case in which it has been decided, that a plain and acknowledged mistake in law is beyond the reach of Equity.” And in remarking on the case of Lansdown v. Lansdown, he observes, that although objectionable in other respects; “ yet, as a case in which relief has been granted on a mistake in law, it cannot be entirely disregarded.” And, although the case of Hunt v. Rousmanier ultimately turned upon another question, see 1 Peters, 1, it shows very clearly the opiuioir of that great jurist.

Cases of this sort, and dicta supporting this view, might bo multiplied to an almost unlimited extent. That has already been done by Mr. Evans, the learned translator and editor of Pothier’s treatise on Obligations; and to his able argument I refer, as a conclusion on this difficult subject. See 2 Evans’ Pothier, App, 269.

The alternative then is presented, of following these, or the cases of Bilbie v. Lumley, and Brisbane v. Dacres. The solid foundation on which the former are based, as I have before endeavoured to demonstrate, in my judgment, greatly outweighs the narrow minded policy, on which the latter are founded; and for myself, 1 have no hesitation in coming to the conclusion, that contracts, founded on a plain and palpable mistake of the law, from a known state of facts, and capable of proof, ought not to be enforced.

in considering this question, I have followed the example of the counsel on both sides, in assuming that the fact of a mistake in law, on the part of the defendant, was ascertained; and that clearly is the necessary inference from the facts ascertained by the verdict: we are not, however, at liberty.to draw any inference from a special verdict, but every fact not ascertained by it, is supposed not to exist. It is'possible, that the defendant' might have known the law, although his counsel was ignorant of it. The presumption, to be sure, is otherwise ; but the case must go back to the Circuit Court, in order that that fact may be ascertained in due form, either by special, or general verdict."

Two other questions have been raised in the course of the argument, of which, it is perhaps necessary, to take some notice. The first is, that this bond was given as the price of the compromise of a doubtful right. The second, that it was entered into for the purpose, and had the effect, of preventing a competition between the defendant, and Samuel F. Isaacs, in an application to the Legislature to release the right of escheat. It is enough to remark of both, generally, that they not only do not appear in the special verdict, but they are directly opposed to the necessary coni elusion ascertained from the facts. The defendant conceded the right of Isaacs, and his object was to buy the land ; so that neither a compromise, nor removing competition, could have entered into it.

The motion for leave to enter up judgment for the defendant is refused, and a venire de novo awarded.

Q’Neall, J. concurred.

Harper, J. having been of counsel for the defendant, gave no opinion.

JNfew trial ordered.  