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that was resorted to, and about five hundred men in the district of Minas were thus seized. The families of these were also secured, making a total of nearly two thousand persons in that district alone. To prevent any escape the country was laid waste by fire. There were more than two hundred and fifty houses burned in a single district.

The historian of Nova Scotia,' describing this scene, says, the soldiery "stationed in the midst of a beautiful and fertile country, suddenly found themselves without a foe to subdue and without population to protect.

"The volumes of smoke which the half expiring embers emitted, while they marked the site of the peasants' humble cottage, bore testimony to the extent of destruction.

"For several successive evenings the cattle assembled around the smouldering ruins, as if in anxious expectation of their masters, while all night long the faithful watchdogs of the Neutrals howled over the scene of desolation, and mourned alike the hand that fed and the house that sheltered them,"

The whole population were forced on board ships and carried off into exile. More than a thousand were distributed through Massachusetts, being divided among the towns and supported for a while at the public charge. But they were never reconciled to their state of bondage and dependence, and never mingled with the inhabitants or became incorporated with them. Many of them died, and some returned at last to their former homes, and their history is lost.

General Winslow having executed this unpleasant commission, returned to Massachusetts in disgust at the treatment to which the Provincial troops were subjected by the officers of the regular army.

He did not however long remain inactive. War was then raging all along the frontier settlements. The year

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'55 became memorable not only by the defeat of general Braddock, but by disasters upon the northern frontier. The following year, general Winslow was in command of an expedition under lord Loudon against Crown Point, but accomplished little by the enterprise. He however received on this occasion a commission as commander in chief of the Provincial troops, from the governor of New York.

The next year, 1757, he received from Governor Pownal, the appointment of major general of the Massachusetts forces, and this commission was renewed by governor Bernard in 1762.

Nor was it in military life only that he received marks of public confidence. He filled many important civil posts of honor, especially that of counsellor, which was ever regarded as one of the most honorable in the province under its charter form of government.

It may have seemed almost a solecism that the name of general Winslow should have been selected as deserving notice as one of the judges of the commonwealth. But in addition to his eminent character as a public officer, there seemed to be a propriety in illustrating through him the qualifications which were regarded as fitting a man, at that period of our history, for a judicial station.

At the age of fifty nine, without any previous preparation or study, he was made the chief justice of his county.

How he succeeded in his new sphere of duties or how the stern soldier and exemplary officer was able to hold the scales of justice between his fellow citizens, does not appear. He retained the office till his death, May 17, 1774, at the age of 71.

His contemporaries spoke of his character in the obituary notices of him, which have been preserved, in terms of high eulogy, and the long time during which he retained the public confidence seems to have justified such commendations, for he was alike esteemed as a gentleman, a soldier, and a magistrate.

E. W.

ART. VI.-ON MISTAKES OF LAW.

[Concluded from the last number.]

HAVING, in our last number, inquired somewhat into the grounds of the alleged doctrine, that there can be no relief against mistakes of law, we proceed now to an examination of the authorities, with a view to ascertain whether from them it can be satisfactorily made out, that such a doctrine does actually exist.

The first case we shall notice, is that of Bilbię v. Lumley,' a leading case on the subject. There an action was brought by an underwriter on a policy of insurance, to recover back money paid on a loss by capture. The position assumed by the plaintiff was, that the money was paid under a mistake. It does not, however, appear from the report, what evidence there was to establish that fact. It may be admitted, that the underwriter was not legally obligated to pay the loss;-a material letter, then in the possession of the assured, not having been disclosed at the time the policy was effected. But the casualty contemplated by the parties had occurred; a loss had happened, That the letter in question was fraudulently withheld, was not pretended; and such a supposition is rendered highly improbable by the fact, that the same letter was submitted, with the other papers, to the inspection of the underwriters, before the loss was adjusted. Under these circumstances, it is possible, to say the least, that the plaintiff might have thought himself bound in honor and honesty to pay, though he knew that, by the strict letter of the law, he was exonerated; and that he might afterwards, for some cause, have changed his views of the matter. At all events, as the defendant had been guilty of no moral delinquency, as a loss

1 2 East, 469.

had actually occurred, and must be borne by one party or the other, and as the plaintiff had paid the money, it can scarcely be said to have been against conscience for the defendant to retain it.

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At the trial before Mr. justice Rooke, the plaintiff had a verdict. On a motion for a new trial, the case was not argued. Lord Ellenborough asked the counsel for the plaintiff, whether there was any case in which a party who had paid money with a full knowledge of the facts of the case, could recover it back on account of his ignorance of the law. The question might have been answered in the affirmative by reference to at least two cases,' as we shall hereafter show. But what if no such case could be produced? Because a thing has never been done, does it follow, necessarily, that it should never be done? His lordship proceeded to say, "the case of Chatfield v. Paxton was the only one he ever heard of, where lord Kenyon, at nisi prius, intimated something of that sort.' Verily, if the decision in this case were to be taken as a fair specimen of judicial candor, one might well say, with Jeremy Bentham, "the judge is the advocate run to seed." Chatfield v. Paxton was an action to recover back money paid under a mistake, and the plaintiff prevailed. At the trial, lord Kenyon is reported to have said, "it is not only necessary that the plaintiff should know all the facts, but that he should know the legal consequences of them." And Sir Vicary Gibbs, who was of counsel for the defendant in the case, represents lord Kenyon to have ruled, that "a payment made under an ignorance of the law would enable the plaintiff to recover back the money ;" and the ground on which he moved for a new trial, which, under all the circumstances of the case, was denied, was the misdirection

Ancher v. The Bank of England, 2 Dougl. 637. Bize v. Dickason, 1

J. K. 285.

2 Chitty on Bills, 538, (8th Ed.)

3 See in Brisbane v. Dacres, 5 Taunt. 143.

of the judge on this point. A very intelligible intimation this of lord Kenyon's, be it worth what it may.

As lord Ellenborough lays so much stress on the absence of what he deems sufficient authority for the recovery of money paid under ignorance of the law, we might reasonably expect he would adduce some weighty authorities against such recovery. The only case he cites to that point, is Lowry v. Bourdieu,' in which, he says, "money paid under a mere mistake of the law was endeavored to be recovered back." One would naturally infer, from this language, that the case in question was decided on the ground of mistake of law; in which inference if he were to repose, he would labor under a grievous error of fact. The action there was brought to recover back the premium paid on a policy of insurance, on ship ard cargo, in which the insured had no interest. Lord Mansfield said it was a gaming policy, and against an act of parliament, and therefore it was clear, that the court would not interfere to assist either party, according to the well known rule, in pari delicto melior est conditio possidentis. Two of the other judges were also of opinion that it was a gaming policy. But Mr. justice Willes thought otherwise on this point. The parties, he supposed, believed there was an interest, and he said it would be very hard that a man should lose what he had paid under a mere mistake. He thought, therefore, that in conscience the defendant ought to refund the money. The case, then, it would seem, turned on the point, that the transaction was illegal and the parties equally guilty. Mr justice Buller, it is true, remarked that there was no mistake in matter of fact, and if the law was mistaken, the rule applied, ignorantia juris non excusat. And this is all he said about mistake; but he proceeded to state, that this was a gaming policy, and without interest, and he dwelt particularly upon the circumstance of the

1 2 Dougl. 468.

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