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mainly with reference to the remedy at law. Indeed, it has recently been decided[1] by Jessel, M. R., that the sole remedy of a party seeking only to recover money paid under mistake of fact, is at law.

Although an action at law in account to recover money so paid was maintained at an early day,[2] and the right to recover therefor, in indebitatus assumpsit, for money had and received was regarded as settled law in the time of Lord Holt,[3] yet bills in equity have also been maintained.[4] In principle it is impossible to distinguish between fraud and mistake: in each case, if there is no mistake as to identity of parties or subject-matter, a transfer with intent to convey title passes the legal title; and as the legal title is passed with plaintiff’s consent without a contract in fact on the part of the person receiving it to transfer it back, the plaintiff’s claim, if any he has, must be an equitable one. That fraud and mistake are alike in this respect was recognized by Lord Holt, in Tomkyns v. Barnet.[5] And it is a general principle that equity will not relinquish its jurisdiction, because a Court of law also gives a remedy.[6] In Varet v. N. Y. Ins. Co., supra, Chancellor Walworth says: “The equitable action of assumpsit is now allowed in many cases . . . where the remedy was originally in equity only. But the fact that a remedy exists at law in such cases does not deprive this Court of its ancient jurisdiction to grant relief here.” Or, in the language of an English Chancellor, “This Court is not at liberty to give up its jurisdiction because Courts of law have fallen in love with it.” It would seem, then, that Jessel’s decision cannot be supported, and in this class of cases a Court of equity has concurrent jurisdiction with a Court of law.

What mistake of fact, all other necessary conditions existing, will a Court regard as sufficient?

In Aiken v. Short,[7] Bramwell said: “In order to entitle a person to recover back money paid under a mistake of fact, the

  1. Lamb v. Cranfield, 43 L. J. Ch. 408.
  2. Hewer v. Bartholomew, Cro. Eliz. 614.
  3. Tomkyns v. Barnet, Skin. 411; Lamine v. Dorrell, 2 L. Ray. 1216.
  4. Bingham v. Bingham, 1 Ves. Sr. 126; Neal v. Read, 7 Baxter, 333; First Nat. Bank v. Mastin Bank, 2 McC. 438. See also Conyers v. Hammond, 2 Cas. in Ch. 81; Pooley v. Ray, 1 P. Wms. 355.
  5. Skin. 411.
  6. Colt v. Woollaston, 2 P. Wms. 154; Varet v. N. Y. Ins. Co., 7 Paige, 560.
  7. 1 H. & N. 210.