Sec 199

It has been already noticed that error on the question, whether a particular case is subject to a particular law, is, in this relation, a question of fact, not of law. The subsumption, as the process of classification is called by the Roman jurists, may sometimes be so simple that it may be difficult to see how it could be induced by error. On the other hand, cases constantly occur which are so complicated that counsel of eminence and skill may widely differ as to the particular rule of law under which they fall. It would, so argues Savigny, be great injustice to charge those experts, whose opinion in such cases is ultimately disapproved, not only with mistake, but with negligence. He cites to this effect a remarkable ruling in the Roman law, in a case3 in which eminent jurists, through various subsumptions of the facts (concerning which there was no dispute), took opposing views. Are we to hold the view which is finally discarded to be imputable to negligence? The Roman jurists did not so hold, and in the case before us, Error in subsumption of facts one of fact not of law.

1 Infra, sec 199, 533 ; Saxon Life Ass. Soc. in re, 2 J. & H. 408 ; McCarthy v. Decaix, 2 Rus. & M. 614; Naylor v. Winch, 1 Sim. & St. 555 ; Dunnage v. White, 1 Swanst. 137 ; Whelen's App., 70 Penn. St. 410; Jones v. Munroe, 32 Ga. 181.

2 Story's Eq. Jur. 12th ed. sec 131 ; citing Cann v. Cann, 1 P. Wil. 727; Naylor v. Winch, 1 Sim. & St. 555 ; Pickering v. Pickering, 2 Beav. 31 ; see fully infra, sec 533.

3 L. 38, de cond. indeb.

Africanus, while holding strictly to the principle that error of law is no defence where the error goes to a legal principle, maintains that it may be a defence when it goes to the question whether, in a doubtful case, a complicated system of facts falls under a particular rule.1 In our own practice, this distinction, though not accepted in terms, is practically recognized. When the question is whether a particular combination of facts falls within a particular legal rule, then error in this respect may entitle a party to relief in a case where, if the question were purely one of fact, equity would interfere.2 This distinction applies to the construction of documents;3 and when an. agreement is so framed as not to correctly express the intention of the parties, equity will not be precluded from relieving by the fact that the mistake was one of law.4 Judge Story5 gives as an illustration of the exception just stated, the case of an English eldest son, who is heir-at-law of his ancestor's fee simple estate, and who, in ignorance of the fact, agrees to divide with a younger brother. This agreement, it is held, would be void. Judge Story argues that the case (supposing that there was no fraud or imposition) " 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, as might fairly entitle him to the protection of a court of equity upon general principles. Indeed, when the party acts upon the misapprehension that he has no title at all to the property, it seems to involve in some measure a mistake of fact; that is, of the fact of ownership, arising from a mistake of law. A party can hardly be said to intend to part with a right or title, of whose existence he is wholly ignorant; and if he does not so intend, a court of equity will, in ordinary cases, relieve him from the legal effects of instruments which surrender such unsuspected right or title." This is virtually the position of the Roman law, that the question of the subsump-tion of a fact under a law is question not of law but of fact.1-

1 Savigny, op. cit. 340.

2 Story's Eq. 12th ed. sec 138 a etseq.; Evans, note to 2 Peth. Obl. 395 ; Jones v. Clifford, L. R. 3 C. D. 779 ; Kelly v. Solari, 9 M. & W. 54 ; Cooper v. Phibbs, L. R. 2 H. L. C. 170; Snell v. Ins. Co., 98 U. S. 85 ; Oliver v. Ins. Co., 2 Curt. C. C. 277; Freeman v. Curtis, 51 Me. 140; Howard v. Puffer, 23 Vt. 365; McDaniels v. Bank, 29 Vt. 230; Warder v. Tucker, 7 Mass. 449 ; Canedy v. Marcy, 13 Gray, 373; Molony v. Rourke, 100 Mass. 190; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290 ; Northrop v. Graves, 19 Conn. 548; Blake-man v. Blakeman, 39 Conn. 320 ; Bank of Rochester v. Emerson, 10 Paige, 359 ; Champlain v. Laytin, 18 Wend. 467; Mayor of N. Y. v. Erben, 38 N. Y. 305; McMillan v. Fish, 29 N. J. Eq. 610 ; Logan v. Matthews, 6 Barr, 417 ; Gross v. Leber, 47 Penn. St. 520 ; Huss v. Morris, 63 Penn. St. 367 ; Russell's App., 75 Penn. St. 269 ; Gebb v. Rose, 40 Md. 387 ; Bigelow v. Barr, 4 Ohio, 358 ; Williams v. Champion, 6 Ohio, 169 ; McNaughton v. Partridge, 11 Ohio, 223 ; Clayton v. Freet, 10 Oh. St. 544; Golbia v. Sanasack, 53 111. 456 ; Baker v. Massey, 50 Iowa, 399 ; Ledyard v. Phillips, 32 Mich. 13; Fitzgerald v. Peck, 4 Litt. 125 ; Underwood v. Brock-man, 4 Dana, 309 ; Gratz v. Redd, 4 B. Monr. 178 ; Mason v. Pelletier, 82 N. C. 40; Garner v. Garner, 1 Dessaus. 437 ; Lowndes v. Chisolm, 2 McCord. Ch. 455 ; Hopkins v. Mazyck, 1 Hill, Ch. (S. C.) 242; Wyche v, Greene, 16 Ga. 49 ; Newell v. Stiles, 21 Ga. 118 ; Haden v Ware, 15 Ala. 149 ; Larkins v. Biddle, 21 Ala. 252; Dailey v. Jes-sup, 72 Mo. 144; State v. Paup, 8 Eng. (Ark.) 129 ; Moreland v. Atchison, 19 Tex. 303 ; Harrell v. De Normandie, 26 Tex. 120.

3 Kennard v. George, 44 N. H. 440 ; Molony v. Rourke, 100 Mass. 190 ; Clayton v. Freet, 10 Oh. St. 544. See, however, distinction taken, supra, sec 198, infra, sec 259.

4 Oliver v. Ins. Co., 2 Curtis, C. C. 277; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290; McKay v. Simpson, 6 Ired. Eq. 452; infra, sec 205.

5 Eq. Jur. 12th ed. sec 122, following Mr. Jeremy, Eq. Juris, pt. 2, ch. 2, p. 366 ; Leonard v. Leonard, 2 B. & B. 182.

1 To the same effect is 2 Pow. on Cont. 196, citing Lansdown v. Lansdown, Mosley, 364; 2 Jac. & W. 205. This is approved by Gibson, C. J., in Frewall v. Fitch, 5 Whart. 331, cited infra. In Lansdown v. Lansdown, ut supra, the plaintiff, who was the heir-at-law to his grandfather's estate, as eldest son to the eldest son, having differed on the question who was the heir to a deceased younger brother of the uncle, agreed to refer it to a neighbor, who was a schoolmaster, who reported that the title was in the uncle. The nephew, on this report, agreed to divide the property, which was subsequently done. Lord Chancellor King held that the land and conveyances were "obtained by mistake and misrepresentation of the law." Judge Story thinks "there is great difficulty in sustaining it (the decision) in point of principle or authority," and he properly pronounces untenable the ground of Lord Chancellor King, that the maxim that ignorance of the law does not excuse, does not apply to civil cases. In Hunt v. Rousmaniere, 8 Wheat. 214, 215, the case is sought to be distinguished on the ground that the plaintiff did not know he was the eldest son, or that he was imposed upon. This meets the view of the text, though on the reasoning of Lord King, if the case can be sustained at all, it must be on the ground that the plaintiff acted under a mistake of fact as to the family priority of an eldest son over a living uncle, so far as concerns the latter's younger brother. In other words, the plaintiff may have regarded the uncle, as to junior members, the head of the family, which may be regarded as a question of fact. But.