"In Stevens vs. Lynch, 12 East, 38, the plaintiff was the indorser, and the defendant the drawer of a bill of exchange. The defense was, that the plaintiff had given time to the acceptor after his dishonor of the bill. But it appeared that the defendant, with a full knowledge of that fact, said, 'I know I am liable, and if Jones, (the acceptor,) does not pay it, I will.' The Court says the defendant made the promise with a full knowledge of all the circumstances, and cannot now defend himself upon the ground of his ignorance of the law when he made the promise.

"The cases of Chatfield vs. Paxton and of Bize vs. Dickason, I. T. R., 285, were cited for the plaintiff upon the argument. But the Court said they considered those cases to have proceeded on the mistake of the person paying the money under an ignorance or misapprehension of the facts of the case.

"In the late case of Brisbane vs. Dacres, 5 Taunt., 144, this subject was elaborately considered by the Court of Common Pleas, and the principle of Bilbie vs. Lumley recognized and adopted. Brisbane was the captain of a frigate belonging to a squadron under the command of Admiral Dacres, the testator of the defendant, upon the Jamaica station; and in obedience to the orders of the admiral, in April, 1808, he received on board his frigate, $700,000 belonging to the government, and proceeded with the same to Portsmouth. He also received on board between one and two millions of dollars belonging to individuals, to be delivered at the Bank of England. The government and individual money was delivered according to order, and Captain Brisbane received from the government for the freight of the former, £850; and from the Bank of England, upwards of £7,000 for the freight of the latter. He paid over to the admiral one-third of the sums thus received, under the belief that he was legally entitled to it; but upon discovering that he was not, he brought this action to recover it back. It was shown to be the usage in the navy for the captains of vessels carrying a public and private treasure, to pay one-third of the freight for the same to the commander of the squadron to which they belonged, though it was admitted that since 1801 the admiral had in such cases no legal claim to any portion of the allowance. But the Court held that the money, having been paid with a full knowledge of all the circumstances and facts in the case, could not be recovered back, because it had been paid under a misapprehension of the law. As to the freight for the money belonging to individuals, it was held that Captain Brisbane had no right to carry it; that the whole of that part of the transaction was illegal; and that, the parties being in pari delicto, the law would aid neither. But as to the other portion of the demand, it was put upon the broad ground which I have stated, against the opinion of Mr. Justice Chambre. Mr. Justice Gibbs says, 'where a man demands money of another as a matter of right, and he pays it with a full knowledge of the facts upon which the demand is founded, he never can recover back the sum he has so voluntarily paid. By submitting to the demand, he that pays the money gives it to the person to whom he pays it, and closes the transaction between them. He who receives it has a right to consider it as his without dispute, and it would be most mischievous and unjust, if he who has acquiesced in the right by such voluntary payment should be at liberty, at any time within the statute of limitations to rip up the matter, and recover back the money.

"Against these cases and a variety of others in which the same principle is acknowledged with more or less distinctness, there is nothing to oppose but the dictum of DeGrey, Ch. J., in Farmer vs. Arundel, 2 Black 825, and of Lord Mansfield in Bize vs. Dickason, I. T. R. 285. The observation of Ch. J. DeGrey is, that 'When money is paid by one man to another, as a mistake either of fact or of law, or by deceit, an action will He to recover it back.' But in that case the action was not sustained, although the money had been paid by the plaintiff under a clear mistake of law. The case therefore, not only did not call for the dictum, but is in direct hostility with it. The proposition of Lord Mansfield, in Bize vs. Dickason was that 'Where money if paid under a mistake, which there was no ground to claim in conscience, the party may recover it back in an action of assumpsit.' If his Lordship meant mistake in fact, the proposition is undoubted; and that he did so mean and express himself, Mr. Justice Gibbs, in his opinion in Brisbane vs. Dacres, infers with great force, from the circumstance that Lord Mansfield had six years before, in Lowry vs. Bourdieu, heard it said by Mr. Justice Buller, that 'money paid in ignorance of the law could not be recovered back,' and had not dissented from the doctrine; and Buller, Justice, sat by him in Bize vs. Dickason, and would not have heard the contrary of that doctrine without noticing it. The only point to which the attention of the defendant's counsel in Bize vs. Dickason, seems to have been directed was, whether the case came within the principle of Grove vs. Duboid, I. T. R. 112 and the Court having expressed an opinion that it did, he abandoned the case, without adverting to the distinction that in Grove vs. Dubois, the broker had been allowed merely to set off his demand, and here he sought to recover back a sum which he had actually paid.

"Chief Justice Mansfield, in Brisbane vs. Dacres, in adverting: to these propositions of Ch. J. DeGrey and Lord Mansfield, says: 'It certainly is very hard upon a judge, if a rule which he lays down generally is to be taken up and carried to its full extent. Great caution ought to be used by the Court in extending such maxims to cases which the judge who uttered them never had in contemplation.'

"If money paid under a mistake of the law, though with a full knowledge of the facts in the case, can be recovered back in all cases where the party to whom it is paid is not in conscience and equity entitled to it, what is the practical distinction between a mistake in fact and a mistake in law. A party who has paid money under a mistake in fact cannot recover it back unless he is equitably entitled to it. The inquiry in every case, therefore, must be, not whether the money was paid under a misapprehension of the law, or in ignorance of the fact, for that is immaterial, but whether the party to whom it was paid can in equity and conscience retain it. If he cannot, if there was any mistake of any character, he shall refund.