CHAP. XVI. Mistake in law. Where a mortgagee with power of sale obtained a foreclosure decree, and then entered into an agreement to sell the estate, with a clause providing that as the vendor was mortgagee with power of sale, she would only enter into the usual covenant that she had not incumbered, the purchaser objected to the validity of the foreclosure decree, and insisted upon having the conveyance under the power of sale, and on the vendor declining to convey in that form, instituted a suit for specific performance, in which the vendor adduced evidence showing that the above-mentioned clause was inserted by inadvertence and that she never intended to incur the risk of opening the foreclosure by conveying under the power, it was held, that the misapprehension was a sufficient defence to the enforcement of a conveyance under the power, the Court being satisfied that the agreement would not have been entered into, if its true effect had been known.(a) It is a maxim of equity that parties making a mistake in matters of fact shall not be held bound by acts committed by them under such mistake. When, however, they make a mistake in law they cannot afterwards be heard to say that the contract shall on that account be set aside. (b) In the maxim "ignorantia juris haud excusat;" the word "jus" is used in the sense of denoting general law, the ordinary law of the country. But when the word "jus" is used in the sense of denoting a private right, that maxim has no application.(c) The Court has refused an injunction to restrain plaintiffs in an action-at-law from taking money out of court, (a) Watson v. Marston, 4 D. M. G. 230. (b) Mildmay v. Hungerford, 2 Vern. 243; Marshall v. Collett, 1 Y. & C. Exch, 232, 238. (c) Cooper v. Phibbs, L. R. 2 H. L. 149, 170, per Lord Westbury. which the defendants-at-law had paid into court in the CHAP. XVI. action, in ignorance that upon such payment the plaintiffs at law were entitled to stay their action, and take the sum so paid. (a) So where a lessor's agent had contracted to grant a lease for seven or fourteen years, which the lessor understood to mean a lease determinable at the lessor's option, and alleged that the agent had acted without authority, it was held that the lessee was entitled to have the agreement specifically performed, and to have a lease for fourteen years, determinable at his own option at the end of seven years. (b) But where the heir-at-law of a shareholder in a company, the shares in which were personal estate, being ignorant of that circumstance, and supposing himself to be liable in respect of the ancestor's shares, executed a deed of indemnity to the trustees of the company, it was held that he was entitled in equity to have his execution of the deed cancelled, as having been obtained under a mistake of fact and law. (c) (a) Great Western Railway Co. v. Cripps, 5 Hare, 91. (b) Powell v. Smith, L. R. 14 Eq. 85. (c) Broughton v. Hutt, 3 De G. & J. 501. acceptance of one of several articles acceptance of all if contract secus if contract not entire, or if goods sent in excess of sale by auction distinct contract for each lot, 206 goods not made, 207 goods sold by principal as agent, 207 mixed contract, 207 vendee must have an opportunity of judging whether goods user or experiments to ascertain quality, 209 goods need not be returned, 210 delay in refusing may amount to acceptance, 211-214 purchaser cannot after acceptance withdraw unless fraud, 214 ACCEPTANCE OF GOODS-continued. vendor's consent to acceptance necessary, 214 contract disaffirmed by vendor, 215 carrier of goods has no authority to accept, 215 distinction between "acceptance" and "receipt" may be acceptance without receipt, 217 ACCEPTANCE OF NEW LEASE, surrender by, 45 new lease need not be in writing, 46 recital in of surrender not sufficient, 46 nor new lease to begin presently, 47 what is sufficient new lease, 48, 49 of part effect of, 50 voidable on condition may be surrender, 50 but not void lease, 51 nor acceptance of lease made void contrary to intention of parties, 51, 52 rule same whether surrender express or implied, 52 commencement of new tenancy question of fact, 56 consent of all parties necessary, 56 by one of several executors, 57 query whether doctrine of surrender by, applies to freehold doctrine has been doubted, 58-61 ACCEPTANCE OF OFFER TO GUARANTEE. See "OFFER." ACKNOWLEDGMENT, of signature before witnesses, 311 under Statute of Frauds, 311 may be before each witness separately, 311 witnesses need not see signature, 312 or know nature of instrument, 312 under Wills Act signature must be made or acknowledged in presence of express acknowledgment not necessary if signature visible, 313-315 signature not visible, 315 when acknowledgment may be presumed from circum- stances of case, 315, 316 whether nature of document need be known to witnesses, 317 |