
    Catherine Proctor vs. Andrew McCall.
    Plaintiff was tbe payee of a note drawn by defendant, which a third person had got possession of fraudulently and transferred to W. Notice was given to defendant not to pay the note to W., but he did pay it to him, and this action was brought for the amount of the note: — Meld, that W. was an incompetent witness for defendant — he being liable to defendant in case of plaintiff’s recovery.
    BEFORE JOHNSON, J., AT LAURENS, SPRING TERM, 1832.
    The report of his Honor, the presiding Judge, is as follows:
    “Plaintiff held defendant’s note for the amount sued for, and married one Craig, who was proved to have had a wife alive at that time. Under the fraudulent marriage, Craig acquired possession of defendant’s note, and. traded it to Wm. D. Watts, and soon afterwards absconded. Plaintiff gave notice to defendant of the fraud committed on her, and forbid his paying the note to Watts or to any other. The defendant, however, did pay the note to Watts, and this action was brought to recover it from him, on the ground that he paid it with notice to one who had no right to receive it.
    “ The defendant offered Watts as a witness, who was rejected on the score of interest, since he will be clearly liable to defendant, if the plaintiff recovers in this action.
    “ I charged the jury that Craig had acquired by his fraudulent marriage no title to the note, and therefore the principal question was whether Watts had notice of that fraud before he purchased the note from Craig. If he had notice, the plaintiff was entitled to a verdict, because the -defendant under the circumstances of this case could be in no better situation than Watts, if he had paid it wrongfully, to Watts, after notice, that payment was no protection. They found a verdict for the plaintiff, and, as I thought, very properly.”
    The defendant appealed, and now moved for a new trial on the following ground:
    That the Court erred in rejecting the testimony of William D. Watts, who was a competent witness.
   The opinion of the Court was delivered by

JOHNSON, J.

Whether Watts was or was not a competent witness for the defendant, depends entirely on the question, whether he (Watts) was liable over to the defendant in the event of the plaintiff’s recovery against him.

For the defendant it is alleged, that he paid the money to Watts with a full knowledge of all the circumstances, and it is insisted therefore that in law he is not entitled to recover it back, whether ¿he plaintiff recovers against him or not. But this case is not supported by the evidence. The plaintiff and Watts both claimed the money from the defendant, and it is true that the plaintiff informed him coA-ectly as to the facts on which her claim was founded, but it does not appear whether Watts was or was not equally candid in the exhibition of his claim: for anything that appears, he might have denied every fact stated by the plaintiff, or stated other matters equally opposed to her right to receive, and thus have left the defendant in ignorance as to the true state of the facts, and assuming for the present, that the rule contended for by the defendant is correct, it has no application. All that we can deduce from the evidence is that the defendant paid to Watts money which the plaintiff was entitled to receive, and prima facie, it was done by mistake; for he will not be presumed to have intended to give away his money, and according to the ex eqwo et lono principle, he would be entitled to recover it back. The allegation that be paid it with a' full knowledge of all the circumstances must come from the party receiving, and from him the proof also must come.

I am not satisfied, however, that if the case assumed by the defendant in reality existed, and that he was fully aware of all the facts and circumstances on which the claims of both the plaintiff and Watts were founded, that he would not be entitled to recover it back from Watts.

I concede freely, that money voluntarily paid, with a knowledge, or the means of knowing all the circumstances on which the claim is founded, cannot in general be recovered back, and that the payer is not helped by his ignorance of the law; and these are the rules laid down in Lowrie vs. Bourdieu, Doug. 468, and Bilbie vs. Lumley, 3 East, 471. These cases proceed upon the principle, that a man may give away his money if he will, and he is bound by it: volenti non fit injuria, says Lawrence, J., in Chatfield vs. Paxton, 2 East. 471, note a, Day’s ed. He may buy his peace; there may exist a moral obligation which the law will not enforce, as in Morris vs. Tarin, 1 Dal. 147, and if he pay his money for these, or any other like considerations, he cannot recover it back. But in Lawrence vs. Beaubien, (2 Bail. 623,) decided in this Court after great deliberation, a distinction was taken between ignorance and a mistake in law, and it was held that a party was not bound by a contract entered into under a mistake of the law; and the proof there was, that he was led into the mistake by the advice of counsel learned in the law: and I apprehend that when full proof of like mistake can be made out by other means, the same rule will obtain. What is the case here as assumed by the defendant ? He certainly did not intend to give Watts the money. He could not have intended to buy his peace; for the payment to Watts exposed him to an action at the suit of the plaintiff. He was under no obligation to Watts, but what arose out of his possession of the note. He could, therefore, have had no other inducement to pay the money to him, but the honest belief that he was legally bound to pay; and thus I think the proof of a mistake in law is clearly made.

There is another view of this question, which appears to me worthy of consideration, and which I am induced to throw out, that it may meet the eye of the profession. In all the cases in which it has been held that money voluntary paid could not be recovered back, the payment has operated to discharge the payer from a real or supposed obligation. But here the very same obligation is found to be due to a third person, and I think it may be well questioned, whether recovery against him by that third person does not raise an obligation on the receiver to refund it.

Motion dismissed.

Harper, J., concurred.

O’NealXi, J., had been of counsel, and gave no opinion.

Motion dismissed.  