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In what cases fore the contract is completed, yet the loss will fall granted.
upon the purchaser(a). The death of an occupier is not that species of accident upon which a court of equity will sustain a bill for an account of mesne profits (6); but numerous modern decisions have established, that where several persons are jointly bound, though at law the security of the creditor is wearing out as each of the debtors dies, yet that a court of equity will permit the creditor to resort to the assets of a
deceased debtor (c). Mistake, Mistake is another common head of equitable inter
position; as where a mistake has been made in the drawing, engrossing, or cancellation of an instrument (d), in an account (e), by a testator in the
(a) Paine v. Mellor, 6 Ves. 349. Coles v. Trecothick, 9 Ves. 346. Ex parte Minor, 11 Ves. 559. Harford o. Purrier, 1 Mad. Rep. 532. Akhurst v. Johnson, 1 Swanst. 85. Revell v. Hussey, & Ba. & Be. 287. as a purchase before the Master is not complete 'before confirmation of the report, a loss after the report, but before confirmation, falls upon the vendor. Ex parte Minor, sup. Twigg v. Fifield, 13 Ves. 517.
(6) Pulteney v. Warren, 6 Ves. 88. Lord Kenyon, in Hale v. Webb, 2 Bro. C. C. 80. appears to have thought that a court of equity might look upon bankruptcy, under certain circumstances, as a case of accident.
(c) Stevens v. Praed, 2 Ves, jun. 523. Daniel 0. Cross, 3 Ves. 279. Stephenson v. Chiswell, ib. 596. Gray v. Chiswell, 9 Ves. 118. Ex parte Kendal, 17 Ves. 520. i Rose, 71. Devaynes o. Noble (Sleech's case), i Meriv. 539. which have overruled Lord Thurlow's determination in Hoare v. Cotencin, 1 Bro. C. C. 27.
(d) Crosby v. Middleton, 3 Ch. Rep. 55. Pr. Can. 309. Sims v. Barry, Finch, 413. 2 Freem. 16. Hunburn v. Curtis, Fitzg. 118. Onions v. Tyrer, 1 P. W. 345. Henkle v. Royal Exchange Company, 1 Ves. 118. Jalabert v. Duke of Chandos, 1 Eden, 372. East India Company v. Neave, 5 Ves. 173.
(e) Rodney v. Hare, Mose, 296. Roberts d. Kuffin, 2 Atk.
calculation of a legacy (a), or in the number (6), In what cases
granted. names, or description of legatees (c): or by arbitrators in a matter of fact, or in a matter of law if (according to the recent modification of the doctrine), a question of law has been expressly submitted to them (d). Upon this principle are founded the cases (too numerous to be here cited), in which
113. Earl Pomfret v. Lord Windsor, 2 Ves. 482. Brownell v. Brownell, 2 Bro. C. C. 82. Taylor v. Haylin, ib. 310. 1 Cox, 435. Johnson v. Curtis, 3 Bro. C. C. 266. Lewis o. Morgan, 3 Anst. 769. Walker v. Consett, For. Ex. Rep. 157. Grey . Minnithorpe, 3 Ves. 103. Chambers v. Goldwin, 5 Ves. 834, on Appeal, 9 Ves. 254. Twogood v. Swanston, 6 Ves. 485. Kinsa man v. Barker, 14 Ves. 579. Drew w. Power, 1 Sch. & Lef. 192.
(a) Milner v. Milner, 1 Ves. 106. Brackenbury v. Brackenbury, 2 Eden, 275. Amb. 474. Danvers v. Manning, 2 Bro.C.C. 18. i Cox, 203. Williams v. Williams, 2 Bro. C. C. 87. Phipps v. Lord Mulgrave, 3 Ves. 613.
(6) Sleech o. Thorington, 2 Ves. 260. Tomkins v. Tomkins, cit. 19 Ves. 126. Scott v. Fenhoulet, 1 Cox, 79. Stebbing v. Walkey, 2 Bro. C. C. 85. 1 Cox, 250. Humphreys v. Humphreys, 2 Cox, 184. Garvey v. Hibbert, 19 Ves. 125.
(c) Ulrich v. Lichfield, 2 Atk. 372. Hussey v. Berkley, 2 Eden, 194. Andrews v. Dobson, i Cox, 425. West V. Primate of Ireland, 3 Bro. C. C. 148. 2 Cox, 258. Delmare v. Rebello, 2 Bro. C. C. 446. 1 Ves. jun. 412. Standen v. Standen, 2 Ves. jun. 589. 6 Bro. P. C. 195. Abbot v. Massie, 3 Ves. 148. Kennell v. Abbott, 4 Ves. 808. Smith v. Coney, 6 Ves. 42. Holmes v. Custance, 12 Ves. 279. Smith v. Campbell, Coop. 278. Careless v. Careless, 1 Meriv. 384.
(d) Cornforth v. Geer, 2 Vern. 705. Metcalf v. Ives, 1 Atk. 63. Ridout 0. Pain, i Ves. 11. 2 Atk. 494. Anon. ib. 644. Price v. Williams, 3 Bro. C. C. 163. i Ves. jun. 365. Knox v. Simmons, 3 Bro. C. C. 358. i Ves. jun. 369. Morgan ù. Mather, 2 Ves. jun. 15. Dick v. Milligan, ib. 23. 4 Bro. C. C. 117. Ching v. Ching, 6 Ves. 282. Young, v. Walter, 9 Ves. 364. note to Nichols v. Chalie, 14 Ves, 271.
la what cases defective executions of powers and surrenders of granted.
copyhold have been supplied, and marriage settlements rectified pursuant to articles.
A common instance of this equity is the case of a joint bond, where the court infers, from the nature of the condition and the whole transaction, that the bond was made joint by mistake, and that the real intention of the parties was, that it should be joint and several (a). It appears also that similar relief would be given in a case which is the converse of this; as where a person executes a bond, meaning that it should be the joint bond of himself and another, and not his several bond; in such a case, unless there is something special, the person who had become so severally bound, has a right to have that bond delivered up; for his intention was not to become a mere several obligee, but to be a joint and several obligee, and the rights are different both in law and equity : for if he is only a several obligee he has no remedies over against any one, but if he is a joint and several obligee or only a joint obligee, there is a right of contribution against the other sureties in equity, and of exoneration against
the principal(b). Mistake in It is clearly settled, that where a deed has been,
executed, or money paid from ignorance of a fact, or under an erroneous impression respecting it, a
(a) Primrose v. Bromley, 1 Atk. 89. Bishop v. Church, 2 Ves. 100. 371. Simpson v. Vaughan, 2 Atk. 33. Thomas v. Frazer, 3 Ves. 399. Burn v. Burn, ib. 573. Gray v. Chiswell, 9 Ves. 125. Underwood v. Horwood, 10 Ves. 217. Ex parte Halket, 19 Ves. 475. Devaynes v. Noble, 1 Meriv. 564.
(6) 10 Ves. 225.
court of equity will relieve (a). But there seems to In what cases have been some difference of opinion upon the ques
granted. tion, whether it would do so, where an act has been done under a mistake of the law. Lord King is reported in one case to have laid down, that the maxim ignorantia juris non excusat respected only the public, where ignorance cannot be pleaded in excuse of crimes, but that it did not apply in civil cases; and he accordingly set aside certain instru. ments which had been executed under a mistaken impression of the law (6). In another case Lord Talbot observed, that it seemed hard that a person should suffer for ignorance of the law, or of the customs of the City of London, and set aside a release executed by an orphan ignorant of the full extent of her rights(c). There is also a dictum of Lord Hardwicke, in which he intimated a similar opinion(d); but in a subsequent case(e), in which the subject was brought more immediately under his consideration, he observed, that if parties are entering into an agreement and have the facts before them and their counsel, they shall be supposed to be acquainted with the consequence of law. Lord Eldon (f) has noticed this
passage with approbation, and there are
(a) Pooley v. Wray, 1 P. W. 354. East v. Thornberry, 3 P.W. 125. Bingham v. Bingham, 1 Ves. 126. Cocking v. Pratt, ib. 400. Salkeld v. Vernon, 1 Eden. 64. Evans v. Llewellyn, 2 Bro. C. C. 150. 1 Cox, 333. East India Company v. Donald, 9 Ves. 275. Kidney v. Coussmaker, 12 Ves, 136.
(6) Lansdown v. Lansdown, Mose, 364.
In what cases numerous cases in which the court has refused to granted.
interfere where an instrument has been executed or a sum of money paid under an erroneous notion of the law(a). We may now, therefore, consider the maxim ignorantia juris non excusat as fully recog. nised in equity as it has long been unquestionably
established in civil cases at law (b). Mistake in A court of equity will not relieve against a misconduct of a cause at law.
(a) Mildmay v. Hungerford, 1 Vern. 243. Harman v. Camm, 4 Vin. Ab. 387. Wildey o. Coopers' Company, 3 P. W. 127. n. Atwood v. Lamprey, ib. Lord Irnham v. Child, 1 Bro. C.C. 92. Langstaffe v. Fenwick, 10 Ves. 406. Currie v. Goold, 2 Mad. Rep. 163.
(b) The principle that ignorantia juris non excusat is firmly established at law, in civil as well as in criminal cases, and it has been repeatedly determined that money paid under a mistake of law cannot be recovered. Lowrie v. Bourdieu, Doug. 467. Bilbie v. Lumley, 2 East, 469. Herbert v. Champion, 1 Campb. 134. Brisbane v. Dacres, 5 Taunt. 379. Stevens v. Lynch, 12 East, 38. Gomery v. Bond, 3 M. & S. 378. If it ever become necessary to examine this interesting question again in a court of equity, it would probably be found expedient to refer to the civil law authorities, where the subject appears to have been most elaborately discussed. The reader will find two entire titles dedicated to the discussion of the distinction between the juris et facti ignorantia, Dig. 22. Tit. 6. and Cod. 1. Tit. 16. Sir W. D. Evans, in the appendix to his valuable translation of Pothier, has given a translation of a learned dissertation of D’Aguesseau upon this point, who, as well as Vinnius, was of opinion (but contrary to the received doctrine) that money paid from a mistaken idea of legal obligation was subject to repetition. Pothier, on the other hand, and Heineccius - maintained the contrary opinion, though the latter made a distinction, holding that with respect to an agreement entered into under a mistake of law, no engagement was contracted. The code Napoleon adopts the distinction of the digest, holding that an error in the person, or in the object, or an error in calculation
may be amended, but not an error of right. 2052. 2053. 2058.