
    Halls Kirkpatrick & Co. v. The Bank of the State of South Carolina.
    
      Tried before Mr, Justice Martin, at Charleston, Spring Term, 1833.
    noto paid it to *hned t00““r“f; and afterwards t’iÓn'against the ¿j} money paid, on tris liability, to a™ unió the defendant,to ?how eitller a“ fact or mistake Habuuyfat0 the time ho paid the note’
    Assumpsit for inoney paid by mistake: — A promissory note, for fifteen hundred dollars, drawn by Matthew Howell, and indorsed by Arthur Howell, Thomas W. Howell, and Halls Kirkpatrick & Co. in the order in which they are mentioned, dated 12th May, 1823, and payable at sixty days, was discounted at the Branch Bank in Columbia. Being unpaid at maturity, it was placed in the hands of a notary of the Bank, for collection. The notary, understanding that the maker and the two first indorsers resided in the neighbourhood of Columbia, left a written demand of payment from the maker, and notices of non-payment, addressed to the two first indorsers, in the post-office in Columbia, and served William Hall, one of the plaintiffs, with notice that the note was then due and unpaid, and demanding payment. 1 he note being protested for non-payment, was paid and taken up by the plaintiffs, who immediately commenced suits against the maker and the two previous indorsers. They obtained judgement against the maker, but he proved to be insolvent. In the actions against the indorsers, the plaintiffs were nonsuited, on the ground that a proper demand had not been made on the maker, and, on appeal, the judgement of nonsuit was affirmed. They then instituted this action against the Bank, for the money paid by them on account of the note, on the ground that it was paid under a mistake as to their liability.
    The presiding judge charged the jury that the Bank was bound to show that due notice of non-payment by the maker of the note under protest, was given. The jury found for the plaintiffs, and the defendant appealed, on the ground of error in the charge of the presiding judge.
    
      
       See Harp. 426. Since this decision, notes made for negotiation in the Bank are drawn payable at the Bank. It,
    
   O’Neall, J.

The former opinion in this cause put the plaintiff’s right to recover upon the fact, whether they “ had notice that no demand, or an irregular and informal demand, had been made on the drawer.” In submitting this question to the jury, that admirable judge, the late Mr. Justice Martin, took, I think, an incorrect view both of the law and the facts. It was certainly not law to say, in this case, “ that the defend, ants were bound to show that due notice of non-payment by the drawer of the note under protest, was given.” After the indorsers (the plaintiffs) paid the note, the legal presumption was that due notice was given, for common prudence would have dictated to them not to pay the note unless this notice had been given, or if it had not, they were disposed to waive their legal advantage. That they did pay twenty-one days after they had received notice of non-payment by the drawer, would in itself constitute a sufficient legal presumption against their right to recover, to entitle the defendants to a verdict, unless the plaintiffs could repel it by shewing that their payment of the note was made “ under an ignorance of the facts, which discharged them.” Bail. on Bills, 189; Garland v. Salem Bank, 7 Mass. Rep. 408; Chitty on Bills, 307-8, and note 1. If the plaintiffs knew all the facts attending the demand of payment from the drawer, their payment must be regarded as made voluntarily, and they are not entitled to relief. For mere ignorance of the law will not of itself avail them ; there must be a mistake of the law, produced either by the act of the defendants, or by some one in whom the plaintiffs confided, to have such an effect. This is what is maintained by Lawrence v. Beaubien, 2 Bail. 023, and Mazyck v. Hopkins, 1 Hill Chan. Rep. 251. The burthen of shewing either an ignorance of the facts which discharged them, or a mistake of the law as to their liability, rested on the plaintiff. Shewing either the one or the other, would have been enough. It is clear that there was no such mistake of' the law as would in itself give them a claim to relief. Their reliance was upon an ignorance of the fact which would have discharged them, as well as it did the other indorsers. It was their business, and not the defendant’s, to shew this, and the error of the presiding judge, in this respect, may have induced the verdict which the jury found. In all events, it was an erroneous legal instruction, and, in a case where we think the right of the case, on the facts, was with the defendants, this is amply sufficient cause to justify us in ordering a new trial.

Smith, for the motion.

Johnson, J. concurred.

Harper, J.

having been counsel in the case, gave no opinion.  