man of reasonable understanding is presumed to know the law, when he knows all the facts, but that no person can be presumed to be acquainted with all matters of fact; and, therefore, ignorance in the former case imports culpable negligence, but not so in the latter.' We have slight respect for presumptions, unless they have some sort of foundation to rest upon. That this presumption of universal knowledge of the law is so, because it is likely to be conformable to the fact, is not pretended. To suppose that every man should actually know, as if by intuition, the precise effect of all the laws operating upon his property and rights, were utterly preposterous. But facts,-not all matters of fact,but all the facts that concern the particular case in hand, a person may, as we think, ordinarily ascertain, by the use of reasonable diligence.

Let us test this same presumption by an example or two. A case arises, we will suppose, presenting a complicated series of legal questions, each difficult in itself, and of the effect of all which combined, a man of the nicest discrimination, the soundest judgment, and the most profound legal knowledge, can but form an opinion. And yet, forsooth, not he alone, but every one, so that he but have common sense, is presumed to know exactly what the law is, in such a case, and it is culpable negligence in him not to know it. Take another instance. An indorser of a note is called upon to pay it. His liability depends on the fact of a seasonable demand of the maker, and notice to himself. One would think this fact not very difficult to ascertain, and it would seem, that a man might reasonably be expected to require some evidence of his liability before he submitted to the demand. He has a right to such evidence, and it must be produced, and his liability affirmatively shown, before payment can be enforced by law. But he

1 See 1 Story, Eq. Jurisp. 155,

pays the amount without having informed himself, that there have been no demand and notice. And the law says, he is not presumed to know that fact, and it is not culpable negligence in him to be ignorant of it. This account of the distinction in question is, to say the least, extremely unsatisfactory.

But the advocates of the distinction allege a necessity for the presumption, that every man understands the law. It is thus stated by lord Ellenborough: "otherwise there is no saying to what extent the excuse of ignorance might not be carried. It would be urged in almost every case." As, by their own showing, the principal ground of the distinction is, that facts are more divers and more difficult to be known than the law, it would seem to be a fair inference, that mistakes of fact would be of more frequent occurrence than mistakes of law. If, therefore, such fearful consequences are to be apprehended from relieving against mistakes of law, a fortiori, the granting of relief in cases of mistakes of fact, one should suppose, must be attended with results, disastrous in the extreme. Yet, in this latter case, no such consequences are experienced.

✓ Besides, the reasoning of lord Ellenborough, to have much force, implies that if the plea of ignorance is to be held sufficient in any case, it must, as a matter of course, be so held in all cases, where it is set up;—which will be so, when the courts shall have become so obliging as to admit, as valid, without discrimination, every excuse which a party may choose to advance, and not till that time. What would be thought, if a judge, in an action on a breach of contract, for instance, should urge it as an argument against the plaintiff's recovering, that, if he were allowed so to do, almost every body would be setting up similar claims. The truth is, there is small encouragement

Bilbie v. Lumley, 2 East, R. 469; and see 1 Story, Eq. Jurisp. 123.

for a man to set up a breach of contract, unless he has some chance of making out his case. And, in like manner, what can it profit a party, to allege ignorance or mistake of the law, if he is wholly unable to substantiate the allegation? For mistake of law, like any thing else, every body admits, must be established by competent evidence.

And this disposes of an objection which has been made to granting relief in cases of mistake of law, that it would afford facilities for the practice of deception.' There can be little chance for successful deception, where a man is to be relieved, if at all, not on the mere pretence of his ignorance or mistake, but on reasonable proof of that fact.

Another ground that has been assigned for the distinction in question, and which is slightly inconsistent with lord Ellenborough's view of the matter, is, that mistakes of law can seldom or never be satisfactorily proved. This is confounding two things, that are essentially distinct. Whether a party will be able to furnish satisfactory evidence of a mistake is one question; whether he shall be relieved against such mistake, when it has been fairly made out, is another and quite a different question.

If it be true, that mistakes of law can never be proved, then the question as to relief can never arise. But we do not admit, that mistakes of this kind are materially more difficult to prove, than mistakes of fact. For example, a man pays money, which he afterwards seeks to recover back, on the ground that he was, at the time of the payment, ignorant of a particular fact which went to exonerate him from paying the demand. He may prove that the fact in question did exist; he may show circumstances which render it highly probable, that, at the time, he was ignorant of that fact; but to make out this latter point, by direct,

1 Storrs v. Barker, 6 Johns. Ch. R. 166.

2 Jones v. Watkins, 1 Stew. R. 81,

positive testimony, is impossible, for the knowledge of it lies within his own breast. Suppose him, now, to allege, that he made the payment under a mistaken notion of his legal liability. He can prove that he was not, in fact, liable; he can show circumstances and acts clearly indicating, that, at the time, he thought himself liable; but any attempt to prove, by direct testimony, what was his actual belief, must fail, in this case as in the other, and for precisely the same cause.

And there is no reason why circumstantial evidence should not be admitted, to prove a mistake or ignorance of the law, as well as for other purposes. Neither do we perceive any valid objection to the use of reasonable presumptions. Thus, in pecuniary transactions, in the absence of any intimation to the contrary, it may be fairly presumed, because such is commonly the fact, that a man intends to fulfil his legal and just obligations, and nothing more; and, as the world goes, the maxim, nemo præsumitur donare, may be safely taken to be true,--for bounty seldom goes abroad without wearing its its badge.

It has been stated as a further reason why mistakes of law should not be relieved, that the contrary practice would offer a premium to ignorance. This objection, we conceive, applies with equal force to granting relief against mistake or ignorance of facts. The argument rests upon the principle, that it is the policy of the law, to render men vigilant. But there is as much room for the exercise of vigilance in arriving at the facts of a case, as in ascertaining the law that is applicable to it; and a man may be remiss in the one respect, as well as in the other. It is admitted, that a party may recover back money overpaid by mistake of facts, though, by employing more diligence, he might have ascertained, before-hand, that the money was not due.1

1 Waite v. Leggett, 8 Cow. R. 195; and see 1 Story, Eq. Jurisp. 156.

Now, if, after having used equal diligence, he mistake his legal liability, it is not very obvious why, so far as the mere consideration of encouraging ignorance is concerned, the money should not be reclaimed in this case, as much as in the other.

Nor do we see any reason to apprehend serious consequences, in this respect, from granting redress in cases of mistakes of either kind. It is no great inducement to a man to pay money, for example, at a venture, that he may, should it prove not to have been due, recover it back by the lingering process of a suit at law.

We object, furthermore, to speaking of relief in such cases, as though it were something in the nature of a reward. The question is, not whether a man is to derive an advantage from his ignorance,—that nobody pretends,--but whether ignorance or mistake, wholly innocent in a moral point of view, shall subject him to the loss of his property.

Finally, it has been stated as the reason why money paid under a mistake in point of law, may not be recovered back, that litigation is not to be multiplied.' It is scarcely necessary to remark, that this reason, like the preceding one, is equally applicable to the case of recovering back money, paid under a mistake of facts. In either case, the recovery may cost a law-suit. Besides, though it is unquestionably true, that groundless litigation is to be discountenanced, it would comport singularly ill with the object for which courts are established, were they, from the fear of multiplying litigation, to refuse a hearing and redress to a suitor who had substantial justice on his side.

We have now noticed all the reasons we have seen assigned, for the alleged distinction between mistakes of law and of fact. We do not regard them as very convincing in themselves, or very consistent with each other; nor do we

'Goodman v. Sayers, 2 Jac. & Walk. R. 249.