ities supporting this rule that a person is much more likely to make a mistake of law than a mistake of fact, the wisdom of the rule would seem apparent. One of the modifications to the rule, however, is that illegal taxes paid voluntarily may not be recovered.

203. Basis of Rule.-The rule that money paid under a mistake of law cannot be recovered as between individuals, though sometimes unjust in its operation, is based on expediency and public convenience, because it would render the administration of justice almost impracticable if parties litigant should be permitted to set up as matters of relief or defense that they were ignorant of the law by which their transactions, dealings and contracts were governed. It has often been said by judges and text writers that everyone is presumed to know the law, but it is quite obvious that this phrase is not to be taken in its literal significance, and that it means no more than is expressed by the maxim ignorantia legis neminem excusat. Various other principles have been invoked in the application of the rule, 10. but the best that may be said of it even as applied to individuals is that it is a handy rule to apply in those rare cases where the application of it prevents gross injustice.11.

204. Mistake of Law Defined.-A mistake of law happens when a person, having full knowledge of the facts, comes to an erroneous conclusion as to their legal effect. It is a mistaken opinion or inference, arising from an imperfect or incorrect exercise of the judgment on facts as they really are.12 It has been said that mistake of law differs from ignorance of the law in that the former is capable of proof, the latter not; the former acts after reasoning, the latter

ing the rule but holding otherwise); 1916D 740; Mowatt v. Wright, 1 Lawrence v. Beaubien, 2 Bailey L. (S. C.) 623, 23 Am. Dec. 155. Notes: 64 Am. Dec. 95; 4 A. S. R. 608.

5. Spalding v. Lebanon, 156 Ky. 37, 160 S. W. 751, 49 L.R.A. (N.S.) 387,

6. Lamar v. Lamar, 261 Mo. 171, 169 S. W. 12, Ann. Cas. 1916D 740; Valley R. Co. v. Lake Erie Iron Co., 46 Ohio St. 44, 18 N. E. 486, 1 L.R.A. 412.

7. Brumagim v. Tillinghast, 18 Cal. 265, 79 Am. Dec. 176; Scott v. Ford, 45 Ore. 531, 78 Pac. 742, 80 Pac. 899, 68 L.R.A. 469.

Wend. (N. Y.) 355, 19 Am. Dec. 508; Scott v. Ford, 45 Ore. 531, 78 Pac. 742, 80 Pac. 899, 68 L.R.A. 469; Robinson v. Charleston, 2 Rich. L. (S. C.) 317, 45 Am. Dec. 739. See also EQUITY, vol. 10, pp. 304, 305.

10. Lamar v. Lamar, 261 Mo. 171, 169 S. W. 12, Ann. Cas. 1916D 740: Scott v. Ford, 45 Ore, 531, 78, Pac. 742, S0 Pac. 899, 68 L.R.A. 469.

11. Lester v. Baltimore, 29 Md. 415 96 Am, Dec. 542; Lamar y. Lamar. 261 Ma. 171, 169 S. W, 12, Ann. Cas. 1916D 740.

12. Scott v. Ford, 45 Ore. 531, 78 Pac. 742, 80 Pac. 899, 68 L.R.A. 469; Mowatt v. Wright, 1 Wend. (N. Y.) 355, 19 Am. Dec. 508; Berkhauser v. Schmitt, 45 Wis. 316, 30 Am. Rep. 740. See EQUITY, vol. 10, p. 304 et

8. See EVIDENCE, vol. 10, p. 873. 9. Elliott v. Swartwout. 10 Pet. 137, 9 U. S. (L. ed.) 373; Brumagim v. Tillinghast, 18 Cal. 265, 79 Am. Dec. 176; Lester v. Baltimore, 29 Md. 415, 96 Am. Dec. 542; Lamar v. Lamar, seq.... 261 Mo. 171, 169 S. W. 12, Ann. Cas.

without.13 In legal effect, however, there is no difference, and the terms are generally used interchangeably.14 It must be remembered in this connection that a mistake as to foreign law is regarded as a mistake of fact and the rules governing such mistakes apply.15

205-206. Payment by Municipality. The rule that money voluntarily paid under a mistake of law cannot be recovered is not applied, by the weight of authority, to payments made by municipal officers under a mistake of law and in violation thereof, and it is quite generally held that a municipality may recover its money thus paid out.16 In some jurisdictions it is provided by statute that money paid out by the officers of the government under an erroneous conclusion in the construction or application of a statute may be sued for and recovered. A distinction has been drawn between a payment made in direct violation of law, and a payment made under a mistake of law, it being held that where an officer makes a payment and the act is within his general jurisdiction, but the payment is made under a mistake of law, there can be no recovery, but where the payment is made in direct violation of law there may be a recovery.18 Thus it has been held that fees paid by a county to a public officer under a mistaken belief on his part and that of the county that he was entitled to them by law cannot be recovered by the county, for the reason that its mistake was one of law, for which no recovery can be had.19

207. Fees and Allowances Paid to Public Officers.-On grounds of public policy, the rule as to voluntary payments or payments made under a mistake of law is ordinarily held not to apply to fees or compensation paid out of public funds to public officers. In the first place, inasmuch as public revenues are trust funds and ministerial officers are trustees for the administration of those funds, it is not within the scope of their authority to make payments unauthorized by law.20 In the second place, the fidelity which public officers owe

13. Lawrence v. Beaubien, 2 Bailey L. (S. C.) 623, 23 Am. Dec. 155.

14. See the next preceding paragraph.

15. Norton v. Marden, 15 Me. 45, 32 Am. Dec. 132.

16. McKnight v. United States, 98 U. S. 179, 25 U. S. (L. ed.) 115; Norfolk County v. Cook, 211 Mass. 390, 97 N. E. 778, Ann. Cas. 1913B 650 and note; Lamar v. Lamar, 261 Mo. 171, 169 S. W. 12, Ann. Cas. 1916D 740 and note.

Note: 94 A. S. R. 424.

Painter v. Polk County, 81 Ia. 242, 47 N. W. 65, 25 A. S. R. 489, is opposed to the rule stated in the text, but later decisions in effect overrule it. See Ann. Cas. 1913B 651 note.

17. Wisconsin Cent. R. Co. v. United States, 164 U. S. 190, 17 S. Ct. 45, 41 U. S. (L. ed.) 399.

18. Notes: 94 A. S. R. 424; Ann. Cas. 1913B 653.

19. Painter v. Polk County, 81 Ia. 242, 47 N. W. 65, 25 A. S. R. 489 and 'note.

Note: 55 A. S. R. 883.

See also MUNICIPAL CORPORATIONS, 20. State v. Young, 134 Ia. 505, 110 vol. 19, p. 1142. As to the application N. W, 292, 13 Ann. Cas. 345; Jones v. of the doctrine to the government, see Lucas County, 57 Ohio St. 189, 48 N. EQUITY, vol. 10, p. 313. The case of E. 882, 63 A. S. R. 710.

to the government in whose service they are makes restitution & duty. Accordingly, it is a general rule that fees or compensation pard illegally or by mistake, out of public funds, by ministerial officers or boards to public officers, or amounts collected by public officers which they have been permitted illegally to retain as fees or compensation, may be recovered back. In some jurisdictions it has been held that where a board has acted in a judicial capacity in passing on claims for fees or compensation, such fees or compensation, though allowed under a mistake of law, cannot, in the absence of fraud, be recovered back.3 A distinction has been made between allowing more than is due on a legal claim and allowing a claim that in its entirety is not chargeable against the municipality. It has been held that the action of a board of supervisors in auditing and allowing an excessive claim is binding and where such claim is paid the excess cannot be recovered by the county. But where the board audits and allows a claim which cannot under any circumstances constitute a charge against the county such allowance is void; and if such claim is void the county may recover the amount of the payment.1

Illegality of Contract and Failure of Consideration

208. Money Paid on Illegal or Invalid Contract Generally.-Where money has been paid on an illegal contract, it is a general rule that if the contract is executed and the parties are in pari delicto, neither of them can recover from the other the money so paid, but if the contract continues executory and the party paying the money is desirous of rescinding it, he may do so and recover back by action of indebitatus assumpsit for money had and received. Thus money paid to secure services which the other contracting party has no legal right to perform may be recovered back so long as the contract remains executory. And payment on shares of stock to be issued illegally may be recovered back before the stock is delivered. When money has been paid on an executory agreement, which is free from moral

1. Note: 13 Ann. Cas. 351.

2. State v. Young, 134 Ia. 505, 110 N. W. 292, 13 Ann. Cas. 345 and note. 3. Note: 13 Ann. Cas. 351.

4. Wayne County v. Reynolds, 126 Mich. 231, 85 N. W. 574, 86 A. S. R. 541.

5. Thomas v. Richmond, 12 Wall. 349, 20 U. S. (L. ed.) 453; Congress, etc., Spring Co. v. Knowlton, 103 U. S. 49, 26 U. S. (L. ed.) 347; Groton v. Waldoborough, 11 Me. 306, 26 Am. Dec. 530 and note; Wyman v. Fiske, 3 Allen (Mass.) 238, 80 Am. Dec. 66; Speise v. McCoy, 6 Watts & S. (Pa.)

485, 40 Am. Dec. 579; Touro v. Cassin, 1 Nott & MeC. (S. C.) 173, 9 Am. Dec. 680; Kenneth v. South Carolina R. Co., 15 Rich. L. (S. C.) 284, 98 Am. Dec. 382; Boyd v. Anderson, 1 Overt. (Tenn.) 438, 3 Am. Dec. 762.

6. Thomas v. Richmond, 12 Wall. 549, 20 U. S. (L. ed.) 453; Congress, etc., Spring Co. v. Knowlton, 103 U. S. 49, 26 U. S. (L. ed.) 347.

Note: 6 L.R.A. 193.

7. Deaton v. Lawson, 40 Wash. 486, 82 Pac. 879, 111 A. S. R. 922, 2 L.R.A. (N.S.) 392...

7

8. Congress, etc., Spring Co. v;

turpitude, and is not prohibited by positive law, but which is invalid by reason of the legal incapacity of a party thereto, otherwise capable of contracting, to enter into that particular agreement, or for want of compliance with some formal requirement of the law, as that the contract shall be in writing, and the like, the money so paid may, while the agreement remains executory, be recovered back by the party paying it, in an action for money had and received.9

209. Parties Not in Pari Delicto.-Where the law that creates the illegality in the transaction was designed for the coercion of one party and the protection of the other, or where the one party is the principal offender and the other criminal only from a constrained acquiescence in the illegal conduct, in such cases there is no parity of delictum at all between the parties, and the one protected by the law, or acting under compulsion, may, at any time, resort to the law for his remedy, though the illegal transaction be completed.10 In applying this rule it has been held that a vendee having no notice of the violation of the statute may recover back money paid for an interest in a patent right which was sold without filing a copy of the letters or an affidavit of genuineness with the county clerk, as required by statute, a breach of which is made a misdemeanor.11 And in cases of bills or other obligations illegally issued by a banking or other private corporation, which has received the consideration therefor, it would enable them to commit a double wrong to hold that they might repudiate the illegal obligations, and also retain the proceeds. Hence where the parties are not in pari delicto, actions are sustained to recover back the money or other consideration received for such obligations, though the obligations themselves, being against law, cannot be sued on. The corporation issuing the bills contrary to law, and against penal sanctions, is deemed more guilty than the members of the community who receive them whenever the receiving of them is not expressly prohibited. The latter are regarded as the persons intended to be protected by law; and if they have not themselves violated an express law in receiving the bills the principles of justice. require that they shall be able to recover the money received by the bank for them.12

Knowlton, 103 U. S. 49, 26 U. S. (L. pendent School Dist. No. 5 v. Collins, ed.) 347.

9. Johnson v. Evans, 8 Gill (Md.) 155, 50 Am. Dec. 669; Gillet v. Maynård, 5 Johns. (N. Y.) 85, 4 Am. Dèc. 329; Merryfield v. Willson, 14 Tex. 224, 65 Am. Dec. 117; Northwestern Union Packet Co. v. Shaw, 37 Wis. 655, 19 Am. Rep. 781.

10. Thomas v. Richmond, 12 Wall. 349, 20 U. S. (L. ed.) 453; Inde

15 Idaho 535, 98 Pac. 857, 128 A. S. R. 76; Groton v. Waldoborough, 11 Me. 306, 26 Am. Dec. 530; Kenneth v. South Carolina R. Co., 15 Rich. L. (S. C.) 284, 98 Am. Dec. 382.

11. Michener v. Watts, 176 Ind. 376, 96 N. E. 127, 36 L.R.A.(N.S.) 142.

12. Thomas v. Richmond, 12 Wall. 349, 20 U. S. (L. ed.) 453.

210. Failure of Consideration Generally. It is familiar law that an action may be maintained to recover back money paid as the price of articles sold, or of work done, when the articles are not delivered or the work not done. The reason is that the consideration for the payment has failed.18 And assumpsit for money had and received lies to recover back money paid on a contract which the other party refuses to perform, or which it has become impossible for him to comply with.14 But if the failure of consideration is due to the act of the party making payment then he cannot recover. 15 Accordingly it has been held that no part of the interest paid in advance on a note according to its terms can be recovered upon a voluntary payment of the principal, during the time for which the interest has been paid, in the absence of a promise by the payee to return unearned interest in case of such payment, or of a reservation of the right to bring suit within the time for which interest has been paid.10

211. Money Paid for Worthless Paper or Unmarketable Title.Where a person sells an obligation which turns out to be valueless, and not of such a character as he represents it to be, he is liable to the vendee as on a failure of consideration.17 Thus a purchaser from a city of bonds which are void for want of power to issue them may recover the amount paid as for a failure of consideration; and to maintain the action, it is not essential that he should first return, or offer to return, the void bonds.18 Likewise a purchaser and holder of counterfeit United States bonds, redeemed by the United States after his purchase, may recover the purchase money without returning the bonds, and before repaying the United States. 19 Money paid for a bill which turns out to be counterfeit may be recovered, for a payment for such a bill must be regarded as a payment by mistake for a thing of no value, but which was, at the time it was received, believed to be and imported on its face to be of intrinsic worth.20 A vendee on the failure of his vendor to give a marketable title may

13. The Bird of Paradise, 5 Wall. 545, 18 U. S. (L. ed.) 662; U. S. v. Barlow, 132 U. S. 271, 10 S. Ct. 77, 33 U. S. (L. ed.) 346; Murray v. Clay, 9 Ark. 39, 47 Am. Dec. 731; Dean v. Mason, 4 Conn. 428, 10 Am. Dec. 162; Ticonic Bank v. Smiley, 27 Me. 225, 46 Am. Dec. 593; Ellis v. Ohio L. Ins., etc., Co., 4 Ohio St. 628, 64 Am. Dec. 610; Pipkin v. James, 1 Humph. (Tenn.) 325, 34 Am. Dec. 652; Boyd v. Anderson, 1 Overt. (Tenn.) 438, 3 Am. Dec. 762; Paul v. Kenosha, 22 Wis. 266, 94 Am. Dec. 598.

Note: 18 Am. Dec. 443.

R. C. L. Vol. XXI.-12.

177

And see ASSUMPSIT, vol. 2, p. 788. 14. Philipson v. Bates, 2 Mo. 116, 22 Am. Dec. 444.

15. Ashbrook v. Hite, 9 Ohio St. 357, 75 Am., Dec. 468.

16. Skelly v. Bristol Sav. Bank, 63 Conn. 83, 26 Atl. 474, 38 A. S. R. 340, 19 L.R.A. 599.

17. Paul v. Kenosha, 22 Wis. 266, 94 Am. Dec. 598.

18. Paul v. Kenosha, 22 Wis. 266, 94 Am. Dec. 598.

19. Brewster v. Burnett, 125 Mass. 68, 28 Am. Rep. 203...