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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. 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.” Werily, 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 Wicary 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 o

| Ancher v. The Bank of England, 2 Dougl. 637. Bize v. Dickason, 1 J. K. 285.

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

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

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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 author-
ities 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 in-
terest, 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

* 2 Dougl. 468.

contract's being executed. Lord Mansfield and Mr. justice

, Ashhurst said not one word about mistake of any kind.

It is worth remarking, that the counsel for the defendant, three eminent lawyers, the Attorney General, Cowper, and Dunning, virtually admitted that if the money had been paid under a mistake of the law, it might have been reclaimed; for they said, inter alia, “as the plaintiffs paid the money with their eyes open, and not under any mistake of the law,” the court would not assist them to recover it back. And Bearcroft, on the other side, said, it happened every day, that the premium was recovered back when it had been paid upon a mistake in point of law. All this goes to show what seems to have been the general understanding of the bar on the subject.

It is with the maxim, ignorantia juris non excusat, sanctioned by the authority of Mr. justice Buller in this case, that lord Ellenborough closes his opinion in Bilbie v. Lumley. We have already stated our reasons for believing this maxim to have, properly, no application to either of these cases, or to any similar case." To the reasoning employed by lord Ellenborough in Bilbie v. Lumley, we have also alluded.” We have gone somewhat at large into the grounds on which this decision professes to proceed, because the case is very often cited, and is, in fact, one of the main pillars on which the subsequent decisions and dicta on the subject rest.

In Brisbane v. Dacres,” also a prominent case, some of the judges relied much on Bilbie v. Lumley, which chief justice Mansfield then very happily characterized, as “a most positive decision.” In this case, the plaintiff, while captain of a vessel belonging to the squadron of admiral Dacres, had received on board his vessel a quantity of public specie, and also a large amount of private treasure, to be transported to England. Of the money received sor performing this service, he had paid over to admiral Dacres a large sum, in part of one third of the freight, which, in such cases, captains had been used to pay to the commander of the squadron; and he now sought to recover back this money, on the ground that the admiral was entitled to no part of such freight. The court were unanimously of opinion, that he could not recover back the money paid on account of the private specie. Mr. justice Gibbs held, that it was illegal for captain Brisbane to carry such specie;— an opinion which he had occasion, soon afterwards, to overrule." Mr. justice Chambre thought it immaterial, for the purposes of that case, whether the transaction was illegal or not. The point, however, chiefly considered by all the judges, respected the money, a very small sum, paid towards the third part of freight of the public treasure, and on this they decided against the plaintiff’s right to recover, the court being three to one against Mr. justice Chambre, who, so far as the question of mistake of law was concerned, is thought.by some to have had the better of the argument on this point, as he certainly had on the other. Indeed, the three judges, whose opinion was against the right of recovery, did, by no means, rest solely on the consideration of mistake of Raw. Mr. justice Gibbs, who alone can, with any propriety, be said to have put the case on that ground, had “considerable difficulty in saying, that there was anything unconscientious in admiral Dacres reQuiring this money to be paid to him, or receiving it when it was paid.” Chief justice Mansfield said, the maxim, volenti non fit injuria, applied most strongly to the case, and so far from regarding it as unconscientious for the defendant to retain the money, he thought “it would be most contrary to aequum et bonum, if the defendant were obliged to repay it.” And Mr. justice Heath thought it “very difficult to say that there was any evidence of ignorance of the law.” | Hatchwell v. Cooke, 6 Taunt. 577.

* Ante, 157. * Ante, 150. * 5 Taunt. 143.

In Stevens v. Lynch," the defendent, the drawer of a bill, with a knowledge that time had been given to the acceptor, had told the holder, “I know I am liable, and if the acceptor does not pay it I will;” and on this promise the plaintiff was held entitled to recover. We were never able to perceive how, on principle, a promise made by the drawer of a bill, or the endorser of a bill or note, after he had been discharged by laches, could be held legally binding. The undertaking of such a party is altogether conditional, and if the terms of the condition have not been complied with, he is legally, and, in many cases, morally, under no more obligation to pay than any one else. If, with his eyes open, he choose to pay, it may be very well. The difficulty is, to perceive how, in such a case, a promise to pay can be enforced by law. Before the promise, the party was absolutely discharged. His agreement had completely done its office. What consideration, therefore, has the promise to rest upon's The case is different where a new promise is set up in answer to a plea of the statute of limitation, or of infancy. There, the debt was, all the while, an actual, subsisting debt. The promise is not the foundation of the action, but simply the waiver of a special ground of defence, of which the party might otherwise have availed himself. Accordingly, we think that, so far as the doctrine goes, there is good reason in what the courts of Massachusetts have held to be well settled, namely, that a promise made under such circumstances as show an ignorance that the party is legally discharged, is without consideration, and void.” The same doctrine is held in Kentucky.”

* 12 East, 34.

* Freeman v. Boynton, 7 Mass. 483. ; and see May v. Coffin, 4 Mass. 347. Warder v. Tucker, 7 Mass. 449. Garland v. Salem Bank, 9 Mass. 408.

* Lawrence v. Ralston, 3 Bibb, 103. Ralston v. Bullitts, 3 Bibb, 261. Underwood v. Brockman, 4 Dana, 309.

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