7 Ga. 64 | Ga. | 1849
By the Court. —
delivering the opinion.
Upon the- hearing before this Court, it was conceded on both
We are fully aware that the authorities upon this question are in conflict, as well in England as in this country. Great names and Courts of eminent authority, are arrayed on either side. It is not one of those questions upon which the mind promptly and satisfactorily arrives at a conclusion. This is true in reference both to principle and authority. It is not surprising, therefore, that Judge Alexander and this Court should differ. I think, and I shall try to prove, that the weight of authority is with us. If it were not so — if authorities were balanced — we feel justified in kicking the beam, and ruling according to that naked and changeless equity which forbids that one iman should retain the money of his neighbor, for which he paid nothing, and for which his neighbor received nothing : an equity which is natural — which savages understand — which cultivated reason approves, and which Christianity not only sanctions, but in a thousand forms -has ordained. In ruling in favor of these actions, we aim at no visionary moral perfectibility. We feel the necessity of practicable rules, by which rights are to be protected and wrongs redressed. We know the necessity, too, of general rules, and how absurd would be that attempt, which seeks to administer the equity which springs from each and every case. The insufficiency which marks all law-givers, laws and tribunals of justice — makes that a hopeless thing. Still, where neither positive law, nor a well settled train of decisions, impose upon Courts a prohibition, they are at liberty, nay, bound to respect the authority of natural equity and sound morality. Where these are found on one side of a doubtful question, they ought to cast the scale. Moreover, we believe that the rule we are about to lay down, may be so guarded, as in its application to be both practicable and politic.
“ The defendant, (says his Lordship, farther,)’may defend himself by every thing which shows that the plaintiff, ex aequo et bono, is not entitled to the whole of his demand, or to any part of it.” His summary is in the following words : “ In one word, the gist of this action is, that the defendant, upon the circumstances of the case, is obliged, by the ties of natural justice and equity, to refund the money.” In the language of the civilians, from whom Lord Mansfield borrowed many valuable principles, “ Hocnatura aequum est neminem cum alterius detrimento, fieri locupletiorem.”
If there is justice in the plaintiffs demand, and injustice or unconscientiousness in the defendant’s withholding it, the action lies; or, to use more appropriate language, the law will compel him to pay. Now, when money is paid to another, under a mistake as to the payer’s legal obligation to pay, and the payee’s legal right to receive it, and there is no consideration, moral, or hono
Right here the argument might rest on principle. Just here the onus is cast upon the other side, to show how and why this case is distinguishable from other cases falling confessedly within the principles upon which the action for money had and received is based. We shall see upon what footing the distinction is placed by Lord Ellenborough. It is that of policy. The doctrine which I am now repelling, never was defended upon principle — it never can be. No British or American Judge ever attempted its defence on principle. It was ruled on policy, and followed upon the authority of a few precedents. A policy which, it must be conceded, does private wrong, for the sake of an alleged public good; or, I should more appropriately say, rather than risk a doubtful public evil. It was, no doubt, this view of the subject which startled the calm philosophical equity of Marshall’s mind, when yielding, in Hunt vs. Rousemanier, to precedent, he still gave in his personal protest against the doctrine. For what he said in that- case can be viewed in no other light than as a personal protest. , It is wise, it is necessary for Courts to yield to established authority; but, inasmuch as the use of precedent is to illustrate principle, a single precedent, or a number of precedents should not control, when they are against principle.
We guard this doctrine by saying, that the action is not maintainable, where money is paid through mere ignorance of the law, or in fulfilment of a moral obligation, or on a contract against public law, or on any account which will make it consistent with equity and good conscience for the defendant to retain it. Nor
The distinction is a practical one, in this, that mere ignorance of the law is not susceptible of proof. Proof cannot reach the convictions of the mind, undeveloped in action; whereas, a mistake of the law, developed in overt acts, is capable of proof, like other facts.
The distinction between ignorance and mistake of the law, is recognised by Lord Roslyn in Fletcher vs. Talbot, 5 Vesey, 14; by Lord Manners, in Leonard vs. Leonard, 2 Ball Beatty, 180, ’3; by the Court of Appeals of South Carolina, in Lawrence vs. Bedu
In England, the authorities are pretty nearly in equilibrio, yet I must think that the preponderance, taking the cases at Law and in Equity together, is on the side of the principle which I am laboring to establish. This action for money had and received, is an equitable remedy, and lies generally where a bill will lie; decisions, therefore, in Chancery which recognize the principle, may be justly held to sustain it. The first case, then, in order of time, is that of Lansdown vs. Lansdown, reported in Mosety, 364, decided by Lord Chancellor King. That case was this — the second of four brothers died siezed of land, and the eldest entered upon it. But the youngest also claimed it. They agreed to leave the question of inheritance to one Hughes, a schoolmaster, who determined against the eldest brother, on the ground that lands could not ascend. Whereupon, the eldest agreed to divide the estate, and deeds were executed accordingly. Lord King decreed that they should be delivered up and cancelled, as having been obtained by mistake. There is no doubt whatever, but [the mistake was one of law as to the legal rights of the elder brother. It is a case in point. It is true that it has been greatly criticised. Mosety, the reporter, has been charged with inaccuracy, and was very much in disfavor with Lord Mansfield, Indeed, it is said that his Lordship did, on one occasion, order his reports not to be read before him. Yet there stands the case, and if supported by nothing else, it is sustained by its reasonableness. Judge Marshall, in referring to it, says, that it cannot be wholly disregarded.
The case of Bize vs. Dickason, was decided by Lord Mansfield in the Court of King’s Bench. The judgment of the Court was delivered as follows : “ The rule has always been, that if a man has actually paid what the law would not have compelled him to. pay, but what in equity and conscience he ought, he cannot recover it back again in an action for money had and received. So, where a man has paid a debt which would otherwise have been barred by the Statute of Limitations, or a debt contracted during his infancy, which in justice he ought to discharge, though the law would not have compelled the payment, yet the money being paid, it will not oblige the payee to refund it; but where money is paid under a mistake, which there was no ground to claim in con
Yhis authority is incontrovertible, and has not been controverted. The case made shows a mistake of law. The mistake spoken of by Lord Mansfield, could not have been a mistake of facts, because the case exhibits no mistake of facts, but does exhibit a mistake of the law.
The principle was sustained by a decree in Bingham, vs, Bingham, 1 Vesey, Sen. 126; There, the bill was filed on the- ground of a mistake in law. The Master of the Rolls said, “ Though 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 Consideration of the sale of an estate to which he had no right.” See the note to this case in Buts 1 Supplement, 79, which shows the mistake to have been one of law. Also recognized in Turner vs. Turner, 2 Ch. R. 154, in Leonard vs. Leonard, 2 Ball & Beatty, 171, by Lord Manners; by Lord Thurlow, in Jones vs. Morgan, 1 Bro. C. C. 219, and by Lord Eldon, in Stockly vs. Stockly, 1 Ves. & Beame, 23, 31, and in Anchor vs. The Bank of England, Doug. 638.
To these authorities may be added the dicta of Lord Ch. J. DeGray, in Farmer vs. Arundel, (2 Black. R. 824,) who declared, “ That where money is paid by one man to another on a mistake, either of fact Or of law, or by deceit, this action will certainly lie.” Of Lord Kenyon, in the case of Chatfield and Paxton, (see Chitty on Bills, 102,)and of Chambre, J¡ in Brisbane vs. Dacres, (5 Taunt. 157.) This Judge, arguing the point with great strength, says, “ It seems to me a most dangerous doctrine, that a man getting possession of -money to any extent, in consequence of another party’s ignorance of the law, cannot be called on to repay it.” He illustrates by putting the very case made in principle in this record. “ Suppose (says he) an administrator pays money, per capita, in misapplication of the effects' of the intestate, shall it be said that he cannot recover it back?”
Opposed to this weight of authority in England, stand the two cases of Bilbie vs. Lumley, (2 East, 469,) and Brisbane vs. Dacres, (5 Taunt. 157,) — -in the latter case Gharhbre, J. dissenting— and the obiter opinion of Buller, J.
It is worthy of remark, that Lord Ellenborough, who presided
The authority of Bilbie vs. Lumley, has been followed in this country, by Chancellor Kent, (Shotwell vs. Mundy, 1 John. Ch. R. 512, Lyon vs. Richmond, 2 John. Ch. R. 51, 6 lb. 169, 170,) and by the Supreme Court, in Hunt vs. Rousmanier, (1 Peters, 1.) In the same ease, however, in 8 Wheat. 215, Ch. J. Marshall says, “ Although we do not find the naked principle, that relief may be granted on account of ignorance of the 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.” The case im 1 Peters, 1, was decided, however, upon other principles than that one now under discussion. The same may be said of the cases in Johnson’s Chancery Reports, above referred to. Yet it may not be deified but that the Courts there recognise the rule as settled in Bilbie vs. Lumley. It may be questioned whether the recognition of that authority by the Supreme Court, is worth as much as the opinion of Ch. J. Marshall, intimated so plainly in the above extract, as to- the rule in Chancery. The leaning of Mir. J. Story, in his Commentaries on Equity, is the same way ; and yet he says, “It has'- been laid down as unquestionable doctrine, that if a party, aeting 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 a compromise, a Court of Equity will relieve liim from the effect of his mistake.” Story’s Com. vol. 1, § 121.
Why it is that a party may be relieved from the consequences of a mistake of the law, where he gives up his property, under the name of a compromise, and not under other circumstances, it is difficult to see.
Mistake of the law has been held without relief in Illinois, (3 Gilman, 162,) in Tennessee, (8 Yerger, 298,) in New Jersey, (1 Green’s Ch. Rep. 145,) and in Alabama, (9 Ala. 662,), and it may be elsewhere, beyond my time for ascertainment.-
The writers on the Civil Law are divided as to the question whether money paid under a mistake of the law, is liable to repetition. Vinnius and D’Aguesseau hold the affirmative; so Sir W. D. Evans. The argument of the great French Chancellor, L’Aguesseau, is, to my mind, unanswerable, (which see in 2 Evans’ Pothier, Appendix, 308.) Pothier and Heineceius maintain the negative ; and it is said that the text of the Roman Law is with them. See Rogers vs. Atkinson, 1 Kelly, 25, 26. Collier vs. Lanier, 1 Kelly, 238.
Let the judgment of the Court below be reversed.