
    BRITTAIN HART vs. JAMGS C. ROPER & AL.
    The maxim, “ignorantia legis neminem ecccusat” is founded upon-tha presumption that every one, competent to act for himself, knows the law ; but the presumption that he knows it is not conclusive, but may be rebutted.
    Therefore, when a plaintiff alleges in his bill, that he was ignorant of the 3aw, and the defendant demurs, it seems that the latter cannot take advantage of the maxim.
    Where a plaintiff alleges an important equity, he is at liberty to add a small’ item, not by itself within the jurisdiction of the Court, when it is connected with and tends to elucidate the main subject.
    Where a cause is removed to this Court upon Bill and demurrer, on-overruling the demurrer, the eause will be remanded to the Ceurt, from which it came, for further proceedings.
    Canse removed from the Court of Equity of Richmond County at the Fall Term 1849.
    James Roper died in the year 1833, leaving a will’,, which was admitted to probate at July term 1833 of the County Court of Richmond. The testator left no children surviving him, but left a widow and two grand-ehildren, James C. Roper, one of tbe defendants, and' Sarah, the wife of the other defendant. By the will, the testator gave to. his widow a negro girl, named Lucy, and some other personal property, “to her and her heirs forever,” and “lent to her for and during her natural life and widowhood” a tract of land, and two negro men, Robert and Elias, and some personal property. The rest of the estate both real and persona! was given to his two grand» children.
    At the said term of the County Court the widow enter* ed her dissent; and the jury, appointed according to the provisions of the Act of Assembly, allotted to her, in addition to the property willed, to make up her share oí the personal estate, the absolute estate in the negroes Robert and Elias ; also, a negro girl Nancy and two other small negroes, besides other personal property. This report was confirmed, and the widow, accordingly, took the negroes into her possession, and retained them until her marriage, with the exception of Robert, whom she sold.
    In November 1847 the plaintiff marrried the widow. In January 1849 she died, leaving the plaintiff in possession of the land, which had been assigned to her as dower, and the negroes and other personal property.
    The bill then alleges, that the plaintiffis illiterate, not able to read, ignorant of law and legal proceedings: that '‘he was entirely ignorant of the rights, which he had acquired by his marriage, and also of the rights, which his wife had acquired by her dissent, and of the extent of the interest and title, which she had acquired to said property, and to which he had succeeded by his marriage : that a few days after the death oí his wife, the defendants claimed, or pretended to claim, under the will of James Roper, an interest in all the estate and property of his wife, at the time of his marriage and, particularly, that they were entitled to two negroes, Elias and Robert, and the rent of the land for the years 1848 and 1849, and insisted, that the plaintiff should surrender the two negroes, and pay rent for the dower land ; and finally, “your orator, being ignorant of his rights, did surrender the negro Elias and a negro girl Nancy, in place of Robert, who had been sold,” and execute a note for $50 as rent for the land, and signed an instrument of writing, purporting to be a relinquishment or release to the defendants of all his claim to the two negroes ; “and at the same time, the defendants gave to your orator a paper writing, purporting to be a release or relinquishment of their claim to all the other property of his wife.”
    
      The bill proceeds : your orator is advised, “that the defendants had no claim, interest, right, or title to the said negroes Elias and Nancy, or to any other property of his wife ; and that no consideration passed from them to your orator: and that said release is inoperative, defective and void, inasmuch as there is no seal to said instrument of writing, no estate in the defendants for the release, (if it be one,) to operate upon, and no consideration, upon which said writing was obtained; the same having been obtained from your orator in ignorance of his rights, and by imposition and fraud.”
    The bill then offers to surrender the release or paper writing, given by the defendants ; and pra}'s, that the negroes may be restored to the plaintiff, the release or paper writing signed by him cancelled, and his note of *50 credited with $25, the rent for 1848.
    The defendants filed a demurrer.
    No counsel for the plaintiff.
    
      Strange, for the defendants, submitted the following:
    A voluntary deed will not be set aside.- White’s leading cases, 213, Velliers v. Benmont, 1 Yen. 101.
    Mistake of law not remediable — Story’s Eq. Jur. 111. U. S. Bank v. Daniel, 12 Peter’s R. 55. Corperill v Chelenely, 1 Russ. & Mylne, 417. Marshall v. Collett, 1 Young & Collyer Eq R. 23S.
   Pearson, J.

The first ground taken is, that, by the plaintiff’s own showing, the acts were done by him with a full knowledge of all the facts ; and the whole ground for relief is, that he acted in ignorance of the law.

Admitting the bill to be liable to this objection, it may be gravely questioned, whether advantage can be taken of it by demurrer. The-maxim, “ignorantia legis,” <$-c., is founded upon the presumption, that every one, competent to act for himself, knows the law. It is necessary for-the Courts, whether in reference to civil or criminal matters,''' to act upon this presumption, however wide of the mark it may be in many cases; for, in the language of Lord E-luenborougii, “otherwise there is no saying, to what extent the excuse of ignorance might not be carried and» there would be much embarrassing litigation, and no small danger of injustice from the nature and difficulty of the proper proofs. 1 Story’s Eq. 123.

But while on the one hand, whether a party knows the law, is not left as an open question for enquiry, as it is¡>whether he knows of the existence of a fact; on the other, the presumption that be knows it is not conclusive, but may be rebutted. For instance, if there be an intention! to pass a freehold estate, and the vendee accepts a deed of feoffment, without livery, he will be relieved upon the ground, that he was under a mistake as to the law ; for,, the intention being clear, the failure to effect; it makes the mistake manifest, and rebuts the presumption.. So, in the case of McKay v. Simpson, decided at this term, re-fief was given, because of a mistake of law, as to the fo,rm of a transfer of Bank stock. It is different, however, when the intention is carried into effect, because, in such eases, there is nothing to rebut the- presumption, and the ignorance of the party can only be shown by going into proof, which is not admissible.

As this presumption is not conclusive, it would seem to follow, that, if a defendant, by demurring, admits that the plaintiff was ignorant of the law, the Court must act upon the admission, and it may be, that such, would1 also be the case, when the answer makes the admission, so as to dispense with the necessity of any proof to rebut the presumption. That it is so in the case of a demurrer, is strongly sustained by the fact, that the learned and diligent counsel for the defendant has not been able to cite any case, in which the objection was taken by demurrer.

We put our decision upon the ground, that the bill is not liable to the objection ; for, it does not appear, that the plaintiff had a full knowledge of all the facts. A fair 'construction of the bill leads to the conclusion, that the plaintiff was “ignorant of the extent of the “interest and title, which his wife had acquired, and to which he had succeeded by the marriage,” in consequence of his ignorance of the facts, as well as of the law, upon which his title was founded.

The bill is hastily drawn. A confusion of ideas is introduced by the use of generalities, and sweeping expressions, than which nothing is more calculated to destory certainty, so much to be desired in all judicial proceedings. It does appear, however, that fourteen years intervened between the dissent and the marriage ; that during the life of his wife, the title of the plaintiff was not called in question; that she died a little over a year after the marriage ; and that, in a few days after her death, the defendants “claimed under the will an interest in all the estate and property of his wife at the time of the marriage, and, particularly, that they were entitled to the two negroes, Elias and Robert, and the rent of land from the time of the marriage.

It is certain the parties knew the contents of the will. By it the land and the two negroes Elias and Robert wrere “lent” to the widow for her life or widowhood, Elias is surrendered ; Nancy is substituted for Robert, who had been sold ; and rent is exacted from the marriage, not the death of the widow.

It is almost as certain, that the contents of the report of the jury were not known to the plaintiff, and possibly not to the defendants. In the absence of any admission, that the plaintiff knew the contents of the report, his being ignorant of the extent of his title must be ascribed to his want of information as to this fact, rather than to suppose he was so stupid, as not to know the difference between an estate for the life or widowhood of his wife, and the absolute estate. But if it is to be ascribed to both causes, this ground of demurrer fails.

The next ground is, that by the plaintiff’s own showing, the instrument signed by the defendants, purporting to pass their interest in the rest of the property to the plaintiff, is void for want of a seal, and that no consideration, passed to make the transfer of the two slaves by the plaintiff to the defendants valid, as the instrument, signed by him, was not under seal, and, therefore, the plaintiff had a clear remedy at law.

This objection is based upon a misapprehension of the plaintiff’s allegation. There is no allegation of a gift, which would not be valid without a deed The allegation is, that the transaction was made to assume the form of a 'sale and delivery of the two slaves for a pretended consideration ; whereas, in fact, there was no consideration, and the pretence of one was the means used to effect the fraud and induce the plaintiff to deliver up his proper-, ty. This Court has concurrent jurisdiction in matters of fraud : and it would be a disgrace to any Court, having jurisdiction, to decline to exercise it, because the fraud is so palpable and gross, that, possibly, redress might be had in some other Court.

The third ground is, that the fifty dollar note is under the jurisdiction of this Court. That is true, but, as the plaintiff has alleged an important equity, he is at liberty to add a small item, as it is connected with, and tends to elucidate, the main subject.

The demurrer must be overruled with costs.

The opinion and decree will be sent, together with the other papers, to the Court of Equity below, to which the cause is remanded. The cause was removed to this Court under an act of the last Legislature. There is no express provision as to what is to be done in a case like this. But it is a remedial statute, and by a liberal construction, in connection with the other statutes, we infer, that it was the intention of the Legislature to have the cases sent back, to be further prosecuted in the Court below.

Per Curiam.

Ordered accordingly.  