ground that a man has a right to take his own when he finds it. If a man has stolen my horse, or has my stolen horse and will not give it up, I certainly may take it, if I can without force, without commit ting a trespass. Suppose a thief has stolen a pair of diamond earrings, and the owner discovers them (or thinks he does) in the ears of a lady who has bought them in good faith, who is walking on the street, and he snatches them from her ears, or with a pistol com pels her to surrender them. If this is not robbery, why is it any offense whatever? But however much this doctrine of taking one's own by force appeals to the uncultivated sense of right, it is rather dangerous. A man may very easily kill his debtor in the process of collecting his debt in good faith. In the principal case of the gambler, the facts appeal very strongly to a court, because the prisoner probably had no ade quate civil remedy; but the evident answer is that he did not deserve any. He was breaking the law in gambling (at least we suppose so), and could not reasonably invoke its protection. Suppose he had killed the monte man in the struggle; would he not have been guilty at least of manslaughter? M1stake of Law. — In a recent article, under this heading, in the " New Jersey Law Journal," it seems to be assumed that no relief can be obtained from a mistake of law, disconnected from fraud, cit ing the case of Wintermute v. Snyder, 3 N. J. Eq. 489, and observing : " In New York, neither on the law nor equity side of the court can relief be obtained from a mistake of law. Vanderbeck v. Rochester, 122 N. Y. 285, is a good case on the subject." That case hardly warrants that conclusion. It simply de cided that a voluntary payment of an assessment, made under a mistake of law, and not induced by any fraud or improper conduct on the part of the payee, cannot be recalled. The law on the subject is thus laid down in Browne on Parol Evidence, section 44 : — "Equity will generally relieve either party against a mutual mistake of law affecting the written expression of their agreement, but not against a unilateral mistake of law unless the mistake was brought about by or known to the other party; and not against a mutual or a unilateral mistake respecting the general law on the subject of their agreement." In Adsit v. Adsit, 2 Johns. Ch. 448, Kent thought that a widow's acceptance of a legacy in lieu of dower, under the mistaken impression that by the terms of the will an acceptance waived her dower, would not estop her from claiming dower. So in Evan's Appeal, 51 Conn. 435. Mr. Pomeroy treats the topic learnedly in 2 Eq. Jur. §§ 845, 846, 849. The New York doctrine is admirably explained by Earl, Corn's, in
Pitcher -,,. Hennessey, 48 N. Y. 415, which we think supports Mr. Browne's rule, and it also finds clear support in Dinwiddie v. Self, 145 Illinois, 290; Lee v. Percival, 85 Iowa, 639; Benson v. Markoe, 37 Minn. 30; 5 Am. St. Rep. 816; Parker v. Parker, 88 Ala. 362; 16 Am. St. Rep. 62; Griffith v. Townley, 69 Mo. 13; 33 Am. Rep. 476; March v. McNair, 48 Hun. 117; Park Bros. & Co., Limited, 7/. Blodgett & Clapp Co., 64 Conn. 28; Goode and Riley, 153 Mass. 585. The writer in the "New Jersey Law Journal " admits that the law is different in England and in some of the States in the case of mutual mis take of law. The subject is rather difficult, and not free from obscurity, and affords a field for development of the law and the adoption of a rriore reasonable and practical rule than the idea that every citizen is pre sumed to know the law, when not only does no lay citizen know it, but no lawyer and no judge knows it.
Sunday — Hunt1ng on. — In Gross v. Miller, Iowa Supreme Court, 26 L. R. A 605, it was held that the mere fact that both parties were violating the Sunday law, by hunting on that day, will not prevent one of them from recovering from the other for in juries caused by the negligent discharge of a revolver by the other. The opinion gives a very convenient summary of the law on this somewhat vexed question. The decision is unquestionably in harmony with the great preponderance of authority. The Court refer to the distinction raised in the Massachusetts cases between an action by one joint violator against an other and an action by one violator against a person who is not violating the Sunday law, allowing a recov ery in the latter and denying it in the former case, and characterize it as "a doctrine abhorrent to our en lightened civilization, and fit only to be administered in the dark ages." In respect to the theory of con tributing cause, the Court say: " We cannot see, upon principle, why the mere act of violating such a law should in any case be held a contributing cause to the injur)-, if one follows. If the boys had not gone to thewoods, the accident would not have happened; and the same is true if they had not been in exist ence." . . . "It could not have been reasonably anticipated that going out hunting on Sunday would result in plaintiff's being shot. It was at most a pos sible, and not a probable, result of the violation of the law." And the Court cite with approval Judge Cooley's dictum, from his work on Torts: "The principle is, that to deprive a party of redress because of his own illegal conduct, the illegality must have contributed to the injury." Mr. Pollock says of the Massachusetts cases on this question: " They are not generally considered good law." (Torts, ch. 4 [13])-
