action for trespass and false imprisonment against the officer arresting him, and recovered. Now upon these authorities, it was for the justice to decide whether the $10 were paid to settle the claim for the penalty, or to settle the whole claim against the plaintiff, for trespass at common law for running through the gate. He has found, as we must conclude, that the money was paid solely to settle the claim for the penalty, when no law existed making him liable to a penalty. Having come to that conclusion, he must have held that a settlement of a claim which had no legal existence, and the contract for the payment of $10, in liquidation of such a claim, was not beneficial to the infant. If the justice held thus, and we must presume that he did, then we are not at liberty to review his judgment. There was at least some evidence on which he founded his judgment. See 18 Wend. 141. This decision the county judge held to be binding on him; and we must regard it as conclusive upon us.

NEEDLES v. BURK.

81 Mo. 569.-1884.

Judgment affirmed.1

HOUGH, C. J.-The plaintiff sues the defendant to recover back from him the value of certain property which he alleges he delivered to the defendant, upon representations made by him to the plaintiff, that the plaintiff's infant son had carelessly and negligently set fire to and burned defendant's barn, of the value of $600, and upon the further representation that the plaintiff was liable for said. damage, and that defendant's neighbors all regarded him as liable, and were urging him, the defendant, to sue plaintiff therefor, that being ignorant whether or not his infant son had set fire to and burned defendant's barn, and, also, of his rights and liabilities in the premises, and relying upon the representations so made to him by the defendant, which representations were made by the defendant without knowing them to be true, and which were, in fact, untrue, and which were made for the purpose of obtaining from the plaintiff

'Polites v. Barlin, 149 Ky. 376 (1912), holds that an infant boot-black may recover tips handed to him by customers and deposited in his employer's cash register, believing the employer entitled to them.

In Renard v. Fiedler, 3 Duer (N. Y.) 318, 323 (1854), the court in discussing the question of recovery of money paid under mistake of law or mistake of fact says: "We confess that we are not at all disposed to extend the doctrine, which makes a distinction between different causes of error, by denying a remedy in one class of cases which it grants in another, although in both the error, if not corrected, is equally a source of injustice. It is peculiar, and not very creditable to the system of jurisprudence that we have adopted and follow. It has, doubtless, sprung from the misapplication of the maxim that "ignorantia legis neminem excusat." That every man must be presumed to know the law is indeed a necessary rule in the administration of criminal justice, but its application to bar a civil remedy is not demanded by any reasons of public policy, and, in many cases, is a resort to a fiction, not for the purpose of promoting, but of defeating justice. Hence, courts of equity have long struggied against the doctrine and have excepted many cases from its operation; and we think that courts of law, when not bound down by precedents, may reasonably follow the example."

his said property, plaintiff delivered said property to the defendant in payment of said supposed liability.

* * *

It is settled in this state that a father is not responsible for injuries inflicted through the negligence or wilful wrong of his minor child. Baker v. Haldeman, 24 Mo. 219. The plaintiff, therefore, was not liable to the defendant, Burk, for the value of his barn, even though it had been set on fire by the plaintiff's son. If the plaintiff's son had fired the barn, and in consequence thereof, but in ignorance of the fact that he was not legally liable therefor, the plaintiff had paid the defendant the amount of his loss, it would not be pretended that he could recover it back. But it is contended that, in addition to the mistake of law made by the plaintiff, he was induced by the misrepresentations of the 'defendant to believe that his son did fire the barn, and that, as this belief on his part caused him to pay the defendant the sum claimed, it constitutes such a mistake of fact as entitles him to recover back the sum paid.

There can be no question that where money has been paid under a mistake of fact, which causes an unfounded belief of a liability to pay, it may generally be recovered back, 1 Parsons on Con. 465 (6th Ed.). But it is also true that in order to entitle a person to recover back money paid under a mistake of fact the mistake must be as to a fact which, if true, would make the person paying liable to pay the money, not where, if true, it would merely make it desirable that he should pay the money. Aiken v. Short, i Hurlst. & N. Exch. 210. So, that if the alleged representation of the defendant to the plaintiff, that his son had burned his barn, was a mere mistake this would not of itself suffice to warrant a recovery. To entitle the plaintiff to recover, it should be shown, not only that the plaintiff's son did not burn the barn, but that the plaintiff was induced, by the representations of the defendant, to believe that his son did burn the barn, and that defendant did not believe his representations to be true, or knew that they were untrue; in other words, that such representations were fraudulently made. Where money is paid upon the fraudulent representation of a fact which, if true, would create no legal obligation, but would naturally excite emotions of benevolence, sympathy or compassion, and superinduce a sense of moral obligation which prompted the payment it is right and just that the party paying should be entitled to recover back the sum which he has thus been fraudulently induced to pay. If a simple mistake of fact which creates no legal liability, and which is wholly disconnected from any fraud, induce a payment of money to one who is lawfully entitled to compensation, but not from the party paying, while there may be a moral obligation to return the money, such moral obligation cannot be made the basis of an implied legal obligation which will sustain an action.

The judgment will be reversed and the cause remanded. All concur.i

1 Contra, Bishop v. Corning, 37 App. D. (N. Y.) 345 (1899).

WILLIAM CULBREATH v. JAMES M. AND DANIEL G. CULBREATH.

7 GA. 64.-1849.

OBADIAH M. CULBREATH died intestate leaving neither wife nor children. His nearest of kin were seven surviving brothers and sisters and the children of a deceased sister. William Culbreath, the administrator, under a misapprehension of the law, divided the estate equally between the seven brothers and sisters, to the exclusion of the children of the deceased sister. Subsequently, these children instituted suit against the administrator and recovered the one-eighth of the estate. The present action was by William Culbreath against two of the distributees, to recover back the amount overpaid on account of this mistake. Upon an agreed statement of the facts in the court below, the presiding judge awarded a nonsuit against the plaintiff, who appealed to this court.

* *

NISBET, J.-* * The question is, can a party recover back money paid, with a knowledge of all the facts, through mistake of the law?

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 man 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 lawgivers, 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.

It is difficult to say that an action for the recovery of money paid by mistake of the law will not lie, upon those principles which govern the action of assumpsit for money had and received. Those principles are well settled since the great case of Moses v. Macferlan, in 2 Burrow 1005. The grounds upon which that necessary and most benign remedy goes, are there laid down by Lord MANSfield. This claim falls within the principles there settled, and cannot be distinguished from cases which have been ruled to fall within them, but by an arbitrary exclusion. I am not now using the case of Moses v. Macferlan as the authority of a judgment upon the precise question made in this record; although Lord MANSFIELD there held, that money paid by mistake could be recovered back in this action, without distinguishing between mistake of law and fact. I refer to it, to demonstrate what are the principles upon which the action is founded. It is not founded upon the idea of a contract. In answer to the objection, that assumpsit would lie only upon a contract, express or implied, Lord MANSFIELD said, "If the defendant be under an obligation, from the ties of natural justice, to refund, the law implies a debt, and gives this action, founded in the equity of the plaintiff's case, as if it were upon contract." Again: "One great benefit derived to a suitor from the nature of this action is, that he need not state the special circumstances from which he concludes that ex aequo et bono the money received by the defendant ought to be deemed belonging to him."

"The defendant," says his Lordship, farther, "may defend himself by everything 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, "Hoc natura aequum est, neminem cum alterius detrimento fieri locupletiorem."

If there is justice in the plaintiff's 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 honorary or benevolent, between the parties, by the ties of natural justice the payer's right to recover it back is perfect, and the payee's obligation to refund is also perfect,-it becomes a debt. It is a case fully within the range of the ex aequo et bono rule. This is that case. It falls within none of the exceptions mentioned by Lord MANSFIELD. It was not paid as a debt due in honor or honesty, as in case of a debt barred by statute; it is not paid as a donation; it was not paid as a debt contracted in violation of public law; for example, money fairly lost at play. In all such cases it is conscientious for the defendant to keep it. In this case there is no right or equity or conscience upon which

the defendant can plant himself. Why, then, is not the case of a payment by mistake of the law within the principles of Moses v. Macferlan?

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 defense 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 philasophical equity of Marshall's mind, when yielding, in Hunt v. 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 fulfillment 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 does the judgment of this court embrace cases of concealment, fraud, or misrepresentation. They depend upon principles peculiar to themselves. And farther, it is scarcely necessary to add that a recovery cannot be had, unless it is proven that the plaintiff acted upon a mistake of the law.

2. There is a clear and practical distinction between ignorance and mistake of the law. Much of the confusion in the books, and

1 Accord, Lawrence v. Beaubien, 2 Bai. (S. C.) 623 (1831); Hutton v. Edgerton, 6 S. C. 485 (1875). Doubted in Robinson v. City Council, 2 Rich. L. (S. C.) 317, 320 (1846), and in Cuningham v. Cuningham, 20 S. C. 317 (1883), where the court says (p. 332): "In this state, however, the distinction has been sharply drawn between ignorance of law and mistake of law. In Lawrence v. Beaubien, 2 Bail. 623, and in Lowndes v. Chisholm, 2 McCord Ch. 455, the court holding that in cases of mistake, the court could give relief, and that it would be refused in cases of mere ignorance. The principal reason given being that mistake could be proved and that ignorance could not. As parties can now testify in their own behalf, it may be doubtful if this reason can be longer sufficient to justify the distinction."

Contra, Jacobs v. Morange, 47 N. Y. 57 (1871). In Champlin v. Laytin, 18 Wend. (N. Y.) 407, 415 (1837), Bronson, J., says: "Lawrence v. Beaubien, 2 Bailey's S. Car. R. 623, is the only case I have met with where a distinction