1 Mr. Warren gives an illustration of this in the report of the famous ejectment case, in "Ten Thousand a Year," in which a deed of confirmation unexpectedly turns up, and that deed is as unexpectedly excluded on proof of an interlineation.

2 "Where the officers of a public or municipal corporation act officially, and under an innocent mistake of the law, in which the other contracting party equally participated with equal opportunities of knowledge, neither party at the time looking to personal liability, the officers are not in any case liable, nor is the corporation liable." Dillon Munic. Cor. sec 176; adopted in Humphrey v. Jones, 71 Mo. 66. In Freval v. Fitch, 5 Whart. 332, Ch. J. Gibson said : "It is insisted, however, that a bargain can be set aside only for a misconception of fact, and not of law with which every one is bound to be acquainted. That position is disproved by Lansdown v. Lansdown, Mosley,.

364 ; in which a deed executed on the mistaken advice of a school-master, in regard to a point of law, was set aside and the party ordered to convey. This principle is not peculiar to equity ; for being of the essence of every contract, it is equally enforced at law whenever the court can look at the consideration, and when a chancellor has not exclusive jurisdiction." See supra, sec 186. It was consequently held that where a non-negotiable note was purchased on a misrepresentation of the vendor, however innocent, as to the legal liability of the veudor, the vendor would be liable to refund the money paid in an action for money had and received. » Cooper v. Phibbs, L. R. 2 H. L. p. 170 ; followed by Beauchamp v. Winn, L. R. 6 H. L. 223; Pollock, 3d ed. 409.

4 That this is so as to construction of document, see Wh. on Ev. sec 1241; Kos-tenbader v. Spotts, 80 Penn. St. 430 ; Brent v. State, 43 Ala. 297.

5 Pollock, 3d ed. 421.

1 Wh. on Ev. sec 920 et seq. ; infra, sec 205, 662.

2 2d ed. 347.

3 Citing Roden v. Small Arms Co., 46 L. J. Q. B. 213.

4 May v. Coffin, 4 Mass. 346 ; Warder v. Tucker, 7 Mass. 452; Freeman v. Boynton, 7 Mass. 488; Haven v. Foster, 9 Pick. 112; Molony v, Rourke, 100 Mass. 190 ; and see Stoddard v. Hart, 23 N. Y. 556 ; Lanning v. Carpenter, 48 N. Y. 408 ; Pitcher v. Hen-nessy, 48 N. Y. 415 ; Zollman v. Moore, 21 Grat. 313 ; Rochester v. Bank, 13 Wis. 432.

In Kelly v. Solari, 9 M. & W. 54, a life insurance policy having lapsed in consequence of nonpayment of premium, and the officers of the company having, in forgetfulness of this fact, paid the insurance, it was held that the money so paid could be recovered back by the company. Here there was a mistaken subsumption of facts. And so in McCarthy v. Decaix, 2 Rus. & M. 614, which was the case of a foreigner, who after being divorced in Denmark from a wife he married in England, and who after the wife's death renounced, in ignorance of the law, his marital rights, it was held that this did not preclude him from coming forward in England to assert these rights as his wife's administrator.

5 Bingham v. Bingham, 1 Ves. Sr. 126 ; Broughton ft. Hutt, 3 DeG. & J. 501; Cooper v. Phibbs, L. R. 2 H. L. 149; Hurd v. Hall, 12 Wis. 112. In Fane v. Fane, L. R. 20 Eq. 698, a resettlement of family estates was made by the father, tenant for life, and the son, tenant in tail in remainder, the parties erroneously supposing that a charge for portions was within the power of the father to release. The resettlement was set aside, as founded on mistake.

1 Einl. sec 12.

2 L. 4, sec 75-82.

3 Art. 1109.

4 Art. 1110.

5 This is exhibited with much clearness in Zitelmann's treatise on Irrthum (Leipzig, 1879), pp. 433-602. He shows that as errors of fact are to be regarded, (1) errors as to the nature of a transaction ; (2) errors as to property though involving title ; and (3) errors as to identity or incidents of persons, though these also involve legal rights.