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justify him in so doing, by mistake kills one of his own family, this is no criminal action; but, if a man thinks he has a right to kill a person excommunicated or outlawed wherever he meets him, and does so, this is wilful murder. For a mistake in point of law, which every person of discretion not only may, but is bound and presumed to know, is, in criminal cases, no sort of defence (h). Ignorantia eorum quæ quis scire tenetur non excusat (i).

VOLENTI NON FIT INJURIA. (Wing. Max. 482).—It is

a general rule of the English law, that no one can maintain an action for a wrong where he has consented or contributed to the act which occasions his loss (k).

In accordance with the above maxim, when an action is brought for criminal conversation, the law is now clearly settled to be, that, if the husband consent to his wife's adultery, it goes in bar of his action: if he be guilty of negligence, or even of loose or improper conduct not amounting to a consent, it only goes in reduction of damages (1). So, if a person says, generally, "There are spring-guns in this wood," and if another then takes upon

(h) 4 Bla. Com. 27; Doct. and Stud., Dial. ii. c. 46.

(i) Hale, Pl. Cr. 42.

(*) Per Tindal, C. J., cited Gould v. Oliver, 2 Scott, N. R., 257. See Bird v. Holbrook, 4 Bing. 628, 639, 640; Plowd. 501.

(1) Per Buller, J., Duberley v. Gunning, 4 T. R. 657; per de Grey, C. J., Howard v. Burtonwood, cited 1 Selw. N. P., 10th ed., 8, n. (3);

Id. 10, n. (6); per Alderson, J.,
Winter v. Henn, 4 C. & P. 498.
As to the effect of a separation be-
tween husband and wife, or of the
wife's death, on the maintenance of
this action, see Weedon v. Timbrell,
5 T. R. 357; Chambers v. Caulfield,
6 East, 244; per Coleridge, J., Wilton
v. Webster, 7 C. & P. 198; Calcraft
v. Earl of Harborough, 4 C. & P.
499.

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Voluntary payment.

himself to go into the wood, knowing that he is in hazard of meeting with the injury which the guns are calculated to produce, he does so at his own peril, and must take the consequences of his own act (m). So, although the deck of a vessel is primâ facie an improper place for the stowage of a cargo, or any part of it, yet, when the loading on the deck has taken place with the consent of the merchant, it is obvious that no remedy against the shipowner or master for a wrongful loading of the goods on deck can exist (n). In addition to the above and similar decisions, there is an extensive class of cases to which the maxim volenti non fit injuria may be applied, but which will be more conveniently referred to another and more general principle of law; those, namely, in which redress is sought for an injury which has resulted from the negligence of both plaintiff and defendant, and in many of which it has, therefore, been held, that the former is precluded from recovering damages (o).

Further, the rule has always been, that, if a man has actually paid what the law would not have compelled him to pay, but what in equity and conscience he ought to pay, he cannot recover it back again in an action for money had and received. Thus, where a man has paid a debt which would otherwise have been barred by the Statute of Limitations, or a debt contracted during his infancy, which, in justice, he ought to discharge, in these cases, though the law would not have compelled payment, yet, the money being paid, it will not oblige the payee to refund it. But where money is paid under a mistake, which there was no ground to claim in

(m) Per Bayley, J., Ilott v. Wilkes, 3 B. & Ald. 311.

(n) Gould v. Oliver, 2 Scott, N.

R., 257, 264.

(0) See remarks on the maxim, sic utere tuo ut alienum non lædas.

conscience, the party may recover it back again as money had and received (p).

There is also a large class of cases in which it has been held, that money paid voluntarily cannot be recovered, although the original payment was not required by any equitable consideration; and these cases are very nearly allied in principle to those which have been considered in treating of a payment made in ignorance of the law.

Moore.

Thus, an occupier of lands, during a course of twelve Denby v. years, paid the property tax to the collector under stat. 46 Geo. 3, c. 65, and likewise the full rent as it became due to the landlord, without claiming, as he might have done, any deduction on account of the tax so paid; and it was held, that the occupier could not recover from the landlord any part of the tax so paid, for the payment was voluntary, and, according to the principle above stated, could not therefore be recovered (g).

payment.

The maxim under consideration holds only where the Compulsory party has a freedom of exercising his will (»); and therefore, where a debtor from mere necessity, occasioned, for instance, by a wrongful detainer of goods, pays more than the creditor can in justice demand, he shall not be said to pay it willingly, and has a right to recover the surplus so paid (s).

nolds.

The plaintiff having, in the month of August, pawned Astley v. Reysome goods with the defendant for 20., without making

(p) Per Lord Mansfield, C. J., Bize v. Dickson, 1 T. R. 286, 287; Farmer v. Arundel, 2 W. Bla. 824.

(q) Denby v. Moore, 1 B. & Ald. 123; cited, per Bayley, J., Stubbs v. Parsons, 3 B. & Ald. 518. See also Cartwright v. Rowley, 2 Esp. 723; Fulham v. Down, 6 Esp. 26, note; Bull., N. P., 131; cited, 8 T. R. 576; Spragg v. Hammond, 2 B. & B.

59; per Dallas, C. J., Andrew v.
Hancock, 1 B. & B. 43.

(r) 1 Selw., N. P., 10th ed., 84.

(s) See per Lord Mansfield, C. J., Smith v. Bromley, cited Dougl. 696, commenting on Tomkins v. Bernet, 1 Salk. 22; cited, Argument, 6 Scott, N. R. 318; per Patteson, J., and Coleridge, J., Ashmole v. Wainwright, 2 Q. B. 845, 846.

K

Intentional wrong-doer.

any agreement for interest, went in the October following to redeem them, when the defendant insisted on having 107. as interest for the 201. The plaintiff tendering him 201. and 47. for interest, knowing the same to be more than the legal interest amounted to, the defendant still insisted on having 101. as interest; whereupon the plaintiff, finding that he could not otherwise get his goods back, paid defendant the sum which he demanded, and brought an action for the surplus beyond the legal interest as money had and received to his use. The Court held, that the action would well lie, for it was a payment by compulsion (t).

It is worthy of observation, also, that there are cases where an intentional wrong-doer will be, to a certain extent, protected by the law through motives of public policy. Thus, a horse with a rider on him cannot be distrained damage feasant, on the ground of the danger to the peace which might result if such a distress were levied; and therefore, to a plea in trespass, justifying the taking of a horse, cart, and other chattels, damage feasant, it is a good replication that the horse, cart, and chattels were, at the time of the distress, in the actual possession and under the personal care of, and then being used by, the plaintiff (u).

(t) Astley v. Reynolds, Stra. 915; Hills v. Street, 5 Bing. 37; Bosanquet v. Dashwood, Cas. temp. Talbot, 38.

(u) Field v. Adames, 12 A. & E. 649, and cases there cited; Storey v.

Robinson, 6 T. R. 138; Bunch v. Kennington, 1 Q. B. 679, where Ld. Denman, C. J., observes, that “ perhaps the replication in Field v. Adames was rather loose."

INTEREST REIPUBLICÆ UT SIT FINIS LITIUM. (6 Rep. 9).After a recovery by process of law there must be an end of litigation (x).

If an action be brought, and the merits of the question Res judicata. be discussed between the parties, and a final judgment obtained by either, the parties are concluded, and cannot canvass the same question again in another action, although, perhaps, some objection or argument might have been urged upon the first trial which would have led to a different judgment. In such a case, the matter in dispute has passed in rem judicatam, and the former decision is conclusive between the same parties, if either attempts, by commencing another action, to re-open the question (y). If it were otherwise, there would be no security for any person, and great oppression might be done under colour and pretence of law (z). To unravel the grounds and motives which may have led to the determination of a question once settled by the jurisdiction to which the law has referred it, would be extremely dangerous; and it is better for the general administration of justice that an inconvenience should sometimes fall upon an individual, than that the whole system of law should be overturned and endless uncertainty be introduced (a).

It is then a general rule, that, where money has been paid by the plaintiff to the defendant under the compulsion of legal process, that is, after bonâ fide proceedings have been actually commenced, which money is afterwards discovered not

(x) Per Lord Kenyon, C. J., 7 T. R. 269; Co. Litt. 303. b.

(y) Per Ld. Kenyon, C. J., Greathead v. Bromley, 7 T. R. 456; Lord Bagot v. Williams, 3 B. & C. 235.

(z) 7 T. R. 269; 6 Rep. 9.
(a) Judgment, Reg. v. Justices of
West Riding, 1 Q. B. 631; Schu-
mann v. Weatherhead, 1 East, 541;
Vin. Abr. "Judgment," (M. a.)

Payment by law.

compulsion of

1

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