hold in civil cases.1 This broad statement is utterly irreconcilable with the well established doctrine, both of Courts of Law and Courts of Equity. The general rule certainly is (as has been very clearly stated by the Supreme Court of the United States), that a mistake of the law is not a ground for reforming a deed founded on such a mistake. And whatever exceptions there may be to this rule, they are not only few in number, but they will be found to have something peculiar in their character, and to involve other elements of decision.2 § 117. In illustration of this remark, we may refer to a case, commonly cited as an exception to the general rule. In that case, a daughter of a freeman of London had a legacy of 10,000l., left by her father's will, upon condition that she should release her orphanage share; and, after her father's death, she accepted the legacy, and executed the release. Upon a bill, afterwards filed by her against her brother, who was the executor, the release was set aside, and she was restored to her orphanage share, which amounted to 40,000l. Lord Chancellor Talbot, in making the decree, admitted that there was no fraud in her brother, who had told her that she was entitled to her election to take an account of her father's personal estate, and to claim her orphanage share; but she chose to accept the legacy. His Lordship said, "It is true, it appears, the son (the defendant) did inform the daughter that she was bound either to waive the legacy given by the father, or release her right to the custom. And so far she might know, that it was in her power to accept either the 1 Lansdowne v. Lansdowne, Moseley, R. 364; S. C. 2 Jac. & Walk. 205. 2 Hunt v. Rousmaniere, 1 Peters, Sup. C. R. 15 ; S. C. 8 Wheaton, R. 211, 212. See also Hepburn v. Dunlop, 10 Wheaton, R. 179, 195; Shotwell v. Murray, 1 John. Ch. R. 512, 515; Lyon v. Richmond, 2 John. Ch. R. 51, 60; Storrs v. Barker, 6 John. Ch. R. 169, 170. Mr. Chancellor Kent has laid down the doctrine in equally strong terms. "It is rarely," says he, "that a mistake in point of law, with a full knowledge of all the facts, can afford ground for relief, or be considered as a sufficient indemnity against the injurious consequences of deception practised upon mankind, &c. It would, therefore, seem to be a wise principle of policy, that ignorance of the law, with a knowledge of the facts, cannot generally be set up as a defence." Storrs v. Barker, 6 John. Ch. R. 169, 170. legacy or orphanage part. But I hardly think she knew she was entitled to have an account taken of the personal estate of her father; and first to know what her orphanage part did amount to; and that, when she should be fully apprised of this, then, and not till then, she was to make her election; which very much alters the case: for probably she would not have elected to accept her legacy, had she known, or been informed, what her orphanage part amounted unto, before she waived it and acccepted the legacy." § 118. It is apparent from this language, that the decision of his Lordship rested upon mixed considerations, and not exclusively upon mere mistake or ignorance of the law by the daughter. There was no fraud in her brother; but it is clear that she relied upon her brother for a knowledge of her rights and duties in point of law; and he, however innocently, omitted to state some most material legal considerations, affecting her rights and duty. She acted under this misplaced confidence, and was misled by it; which of itself constituted no inconsiderable ground for relief. But a far more weighty reason is, that she acted under ignorance of facts; for she neither knew, nor had any means of knowing, what her orphanage share was, when she made her election. It was, therefore, a clear case of surprise in matters of fact, as well as of law. No ultimate decision was made in the case, it being compromised by the parties. § 119. The case of Evans v. Llewellyn2 is expressly put in the decree upon the ground of surprise, "the conveyance having been obtained and executed by the plaintiffs improvidently." It was admitted that there was no sufficient proof of fraud or imposition practised upon the plaintiff, (though the facts might well lead to some doubt on that point,) and the plaintiff was certainly not ignorant of any of the facts which respected his rights. The Master of the Rolls (Sir Lloyd Kenyon, afterwards Lord Kenyon) said, "The party was taken by surprise. He had not sufficient 1 Pusey v. Desbouvrie, 3 P. Will. 315, 321; 2 Ball & Beat. 182. time to act with caution; and therefore, though there was no actual fraud, it is something like fraud; for an undue advantage was taken of his situation. I am of opinion, that the party was not competent to protect himself; and therefore this Court is bound to afford him such protection; and therefore these deeds ought to be set aside, as improvidently obtained. If the plaintiff had in fact gone back, I should not have rescinded the transaction."1 §120. The most general class of cases relied on, as exceptions to the rule, is that class, where the party has acted under a misconception, or ignorance of his title to the property, respecting which some agreement has been made, or conveyance executed. So far as ignorance in point of fact of any title in the party is an ingredient in any of these cases, they fall under a very different consideration.2 But so far as the party knowing all the facts, has acted upon a mistake of the law applicable to his title, they are proper to be discussed in this place. Upon a close survey, many, though not all of the cases in the latter predicament, will be found to have turned, not upon the consideration of a mere mistake of law, stripped of all other circumstances, but upon an admixture of other ingredients, going to establish misrepresentation, imposition, undue confidence, undue influence, mental imbecility, or that sort of surprise which Equity uniformly regards as a just foundation for relief.3 11 Cox, R 340, 341. 2 See Ramsden v. Hylton, 2 Ves. 304; Cann v. Cann, 1 P. Will. 727; Farewell v. Coker, cited 2 Meriv. 269. McCarthy v. Decaix, 2 Russ. & Mylne, 614. In this last case Lord Chancellor Brougham held, that where a husband renounced his title to his wife's property from whom he had been divorced, under a mistake in point of law, that the divorce was valid, and he had no longer any title to her property, and under a mistake of fact as to the amount of the property renounced, the information respecting which the other party knew and withheld from him, he was entitled to relief. But the relief seems to have been granted upon mixed considerations. His Lordship, in one part of his opinion, said: "What he (the husband) has done was in ignorance of law, possibly of fact; but in a case of this kind, that would be one and the same thing." See also Corking v. Pratt, 1 Ves. 400. 3 See Willan v. Willan, 16 Ves. 82.-Mr. Jeremy (Eq. Jurisd. P. 2, ch. 2, p. 366) seems to suppose, that there is something technical in the meaning of the § 121. It has been laid down as unquestionable doctrine, that if a party, acting in ignorance of a plain and settled principle of law, is induced to give up a portion of his indisputable property to another, under the name of a compromise, a Court of Equity will relieve him from the effect of his mistake.1 But where a doubtful question arises, such word surprise, as used in Courts of Equity; for, speaking upon what, he says, is technically called a case of surprise, he adds, " which [surprise] it seems is a term for the immediate result of a certain species of mistake, upon which this Court will relieve," a definition or description not very intelligible, and rather tending to obscure, than to clear up the subject. In another place (ch. 3, p. 383, note) he says, that surprise is often used as synonymous with fraud; but that "they may, perhaps, be distinguished by the circumstance, that in instances, to which the term fraud is applied, an unjust design is presupposed; but that in those to which surprise is assigned, no fraudulent intention is to be presumed. In the former case one of the parties seeks to injure the other in the latter both of them act under an actual misconception of the law." Whether this explanation makes the matter much clearer may be doubted. The truth is, that there does not seem any thing technical or peculiar in the word surprise, as used in Courts of Equity. The He defines it to be common definition of Johnson sufficiently explains its sense. the act of taking unawares; the state of being taken unawares ; sudden confusion or perplexity. When a Court of Equity relieves on the ground of surprise, it does so upon the ground that the party has been taken unawares, that he has acted without due deliberation, and under confused and sudden impressions. The case of Evans v. Llewellyn, 2 Bro. Ch. R. 150, is a direct authority to this very view of the matter. There may be cases where the word surprise is used in a more lax sense, and where it is deemed presumptive of, or approaching to fraud. (1 Fonbl. Eq. B. 1, ch. 2, § 8, p 125; Earl of Bath and Montague's Case, 3 Ch. Cas. 56, 74, 103, 114.) But it will always be found that the true use of it is, where something has been done which was unexpected, and operated to mislead or confuse the parties on the sudden, and on that account has been deemed a fraud. See Earl of Bath and Montague's Case, 3 Ch. Ca. 56, 74, 114; Irnham v. Child, 1 Bro. Ch. 92; Marquis of Townshend v. Strangrom, 6 Ves. 327, 338; Twining v. Morrice, 2 Bro. Ch. R. 326; Willan v. Willan, 16 Ves. 81, 86, 87. In Evans v. Llewellyn, 1 Cox, R. 340, the Master of the Rolls, adverting to the cases of surprise, where an undue advantage is taken of the party's situation, said, "The cases of infants dealing with guardians, of sons with fathers, all proceed upon the same general principles, and establish this, that, if the party is in a situation in which he is not a free agent, and is not equal to protecting himself, this Court will protect him." See 1 Fonbl. Eq. B. 1, ch. 2, § 8. See post. § 234, § 235, and note, $234. § 237, § 238, § 239, § 240, § 242. 1 Naylor v. Winch, 1 Sim. & Stu. 555. See also 1 Ves. 126; Moseley, R. 364; 2 Jac. & Walk. 205; Leonard v. Leonard, 2 B. & Beatt. 180; Dunnage v. White, 1 Swanst. 137. See Hunt v. Rousmaniere, 8 Wheaton, R. 211 to 215; S. C. 1 Peters, Sup. C. R. 1, 15, 16; Gudon v. Gudon, 3 Swanst. 400.-In the very case in which this doctrine is laid down in such general terms, relief was as a question respecting the true construction of a will, a different rule prevails; and a compromise, fairly entered into with due deliberation, will be upheld in a Court of Equity, as reasonable in itself to terminate the differences by dividing the stake, and as supported by principles of public policy.1 § 122. In regard to the first proposition, the terms in which it is expressed have the material qualification, that the party has, upon plain and settled principles of law, a clear title, and yet is in gross ignorance that he possesses any title whatsoever. Thus, in England, if the eldest son, who is heir at law of all the undisposed of fee simple estates of his ancestor, should, in gross ignorance of the law, knowing, however, that he was the eldest son, agree to divide the estates with a younger brother; such an agreement, executed or unexecuted, would be held in a Court of Equity invalid, and relief accordingly granted. In a case thus strongly put, there may be ingredients which would give a colouring to the case, independent of the mere ignorance of the law. If the younger son were not equally ignorant, there would be much ground to suspect fraud, imposition, misrepresentation, or undue influence on his part.2 And if he were equally ignorant, the case would exhibit such a gross mistake of rights, as would lead to the conclusion of such great mental imbecility or surprise, or blind and credulous confidence on the part of the eldest son, and might fairly entitle him to the protection of a Court of Equity upon general principles.3 Indeed, where the party acts upon the misapprehension that he has no title at all in the property, it seems to involve in denied, because the claim was doubtful, and the compromise was after due deliberation. Naylor v. Winch, 1 Sim. & Stu. 555. Is there any distinction between ignorance of a principle of law, and mistake of a principle of law, as to this point? See 1 Madd. Ch. Pr. 61. 1 Ibid. 2 Jeremy on Eq. Jurisd. Pt. 2, ch. 2, p. 366; Leonard v. Leonard, 2 B. & Beatt. 182. 3 See Hunt v. Rousmaniere, 8 Wheaton, R. 211, 212, 214; S. C. 1 Peters, Sup. C. R. 15, 16. S. C. 2 Mason, R. 342. 3 Mason, R. 294. See Ayliffe's Pand. B. 2, tit. 15, p. 116. |