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. 1 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. 3 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 for 1 Ante, 157. 2 Ante, 150. 35 Taunt. 143. 1 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 law. 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. 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? 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.' 1 12 East, 34. 2 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. 3 Lawrence v. Ralston, 3 Bibb, 103. Ralston v. Bullitts, 3 Bibb, 261. Underwood v. Brockman, 4 Dana, 309. Gomery v. Bond' was a case where the seller of goods, on the buyer's refusing to accept them, requested the latter to sell them for him, which he agreed to do if he could, but finally returned them to the seller, who declined receiving them back, and brought this action for the price. The case was tried before Mr. baron Richards, who directed the jury, in deciding whether the plaintiff had waived the contract, to consider whether, at the time he made the request to sell, he was aware of his rights. The plaintiff had a verdict, and the defendant moved for a new trial, on the ground of misdirection of the judge on this point. The court said nothing, directly, about ignorance or mistake of rights, but they deemed the point in question to have been improperly left to the jury, and granted a new trial. Lord Ellenborough thought there could be no doubt, from the evidence, that the plaintiff had waived the contract, and allowed the other party to sell the goods for him. The case of the East India Company v. Tritton,' was an action to recover back money paid by the plaintiffs as acceptors of certain bills of exchange, to the defendants, on the faith of an insufficient prior endorsement, of the validity of which the plaintiffs had, and the defendants had not, the means of judging. The defendants received the money merely as agents of a prior party, and had paid it over in the usual course of business. The case, therefore, would seem to be disposed of by the familiar principle, that where an agent has received money, bona fide, and paid it over to his principal, fairly, and without notice not to do so, that is a sufficient protection to the agent. The court put their decision very much on this ground; but Mr. justice Holroyd said the money was paid not under a mistake of fact but of law, and, therefore, the case of Bilbie v. Lumley 13 Maule & Selw. 378. 23 Barn. & Cresw. 280. 3 was sufficient to dispose of the question. The inquiry as to the effect of the plaintiffs' mistake, might have arisen, had the action been against the party to whose use the money came; but as it was, we conceive that question had nothing to do with the case. The plaintiffs had no equity against the defendants, who, as agents, had received and paid over the money, in all good faith and honesty. In Milnes v. Duncan,1 the plaintiff had passed to the defendant a bill, which the latter made his own by neglecting to present it in due season. He then demanded of the plaintiff the amount of the bill, alleging that the bill was on an insufficient stamp, and was therefore void. The plaintiff's agent, after having twice examined the bill, paid the money; but it turned out that the bill was drawn in Ireland, and was on the appropriate stamp for such a bill, drawn in that country. This action was brought to recover back the money thus paid, and the court held that it was sustainable. Mr. justice Bayley stated the rule to be, that money paid under a mistake of law cannot be recovered back, but that if paid under a mistake of facts it may be recovered. The plaintiff in this case, he said, paid the amount under an impression that the bill was void. This, of itself, would look like a mistake of the law, but then that mistake might have originated, as the court assumed it did, in overlooking the fact of the place where the bill was drawn. It is said there was nothing about the bill calculated to raise any suspicion that it was drawn in Ireland. The bill, however, bore date of the place where it was drawn, and as the plaintiff's agent inspected it with especial reference to its validity, it is, perhaps, about as probable that he was not aware it made any difference whether the bill was drawn in England or in Ireland, as that he was ignorant of the fact that it was drawn in 16 Barn. & Cresw. 671. |