
    Hubbard, Administrator, &c. vs. Martin.
    The act of assembly authorized and required the judges of the circuit courts, when unable from sickness or other cause to hold their courts, to certify the fact to the governor, who, upon receiving the same, was to appoint a special judge to hold the courts of such judge as he could not hold; and the special judge was to receive compensation out of the treasury, to be deducted out of the salary of the regular judge. Under this act of assembly, A forwarded a certificate of his inability to hold his courts; the governor appointed M special jndge; M held the courts of A; A had overdrawn his salary, so that there was not so much money due A aswonld pay M; A paid M part of the money, and executed his note for the balance. After the payment of the money and execution of the note, the supreme court decided that the act of assembly under which M was appointed was unconstitutional, and M’s appointment void: Held, that A could neither recover the money paid, nor enjoin the collection of the note. -
    A, with a full knowledge of all the facts, but under a mistake of the law, voluntarily paid money and executed his note to M: Held, that A could neither recover the money paid, nor enjoin the collection of the note, on the naked ground of mistake of the law.
    This is a bill to enjoin a judgment on a note for one hundred and ninety-three dollars, transferred after due, by JohnH. Martin to defendants Boyers and, Wins, and to cause defendant Martin to refund one hundred and fifty dollars, paid to him by N. W. Williams in his lifetime. N. W. Williams was judge of the third circuit; in 1831 his health was too ill to permit him to do business; he certified to the governor the fact, who appointed John H. Martin, Esq. to 'hold the courts as special 'judge, pursuant to the^act of 1S27, oh. 37, who did so.' For this service Mr. Martin, by the provisions of the act of assembly, was entitled to have six dollars a day; which amounted, after this rate, to the foregoing sums of one hundred and ninety-three, and one hundréd and fifty dollars, and which the statute ordered should be paid to the special judge, to be deducted from the salary of the regular judge; but he had drawn the amount of his salary in advance from the treasurer, who could ■ not deduct, and refused to pay. Judge Williams was applied to by Mr. Martin, as holding the money in trust, and he paid part, and gave his note for the balance. The supreme court afterwards pronounced the adjudications of Mr. Martin void, because the legislature jjad no power to cause to be appointed a special judge by the governor; the appointing power being vested in the general assembly. 
    
    - This bill was demurred to by the defendants; the chancellor sustained the demurrer and dismissed the bill, and the qomplainant appealed to this court.
    
      James Rucks, for complainants. .
    
      J. S. Yerger, for the defendants. -
    
      
       See the case of Smith and Normant, 3 Yerg. Rep.
    
   CatRon, C. J.

delivered the opinion of the court.

It is insisted, that the appointment of Mr. Martin being void, Judge-Williams paid the money, and executed his note to Mr. Martin through a mistake of the law, and is entitled to relief; and further, as a circumstance, that the regular judge was under something like'duress; for had he failed to certify to the governor, and failed to hold the courts, he would have been probably impeached, and Ms triers being the laiy makers, would in all probability have adjudged in favor of the constitutionality of their own law, convicted him of neglect of duty, and removed him from office.

If this is not placing the claim to relief on the ground that the judges have the right to shrink from their duty through fear of the consequences, it is at least set up as a prominent circumstance, to give controlling might to the mistake of law. This is beside the merits. Judge Williams had received money from the government not his, and held it as trustee for the state — having not performed the services pertaining to his station, he was not entitled to the compensation. That Mr. Martin performed the service required of him by the state, is admitted in the bill, and that the community derived no benefit from it was not his fault; he was entitled to his salary of six dollars per day; and Judge Williams, holding the money for the state, rightfully paid it over to Mr. Martin; and having had a right in conscience, to receive the money, upon the facts, he cannot be deprived of it.

But the money having been paid, and the note executed by Judge Williams voluntarily, with a full knowledge of all the facts, and Mr. Martin having a right in conscience to receive it, although he had not in law, still Judge Williams’ administrators have no right to recover it back, and enjoin the, judgment obtained on the note, because of the naked mistake of the law. 2 Stark. Ev. 112; 6 Yerg. Rep. 484.

I think the decree dismissing the bill should be affirmed.

Green, J. concurred.

Peck, J.,

dissented.

I dissent from a majority of the court. The act of ■assembly was void, and has been so pronounced. Martin ^demanded the money under a void authority. He could perform no part of the duty for which he claimed this compensation; all his acts under the unconstitutional law were void. 'Williams gave the bond under a mistake of both law .and fact. Whether Martin performed services or not was the fact; what he might legally do, was the law of the case. He had done nothing — Williams had it all to do over again.

Whose money this is (for it is not paid) is a question between Judge Williams and the. State; Martin has no right to demand it of Williams, for if the legislature employed Martin to do an idle thing, it is nothing to the latter, but a question between the employer and him employed. Having no law to sustain him as a judge, Martin stands self-constituted as such, his commission was ■utterly, void; and as he could legally do nothing,'he could not legally have compensation from Williams, who never employed him.

In my opinion the case is for the complainant.

Decree affirmed.  