Peterborough v. Lancaster

Gilchrist, J.

The maxim, ignorantia legis neminem excusat, is a fundamental one, and has always been received, with some few exceptions, as an elementary principle of the common law for many years. It is recognized as such in the Doct. Stu., dial. 2, ch. 46. It is an illustration of the tendency of the common law to aim at practical good rather than theoretical perfection, and to furnish a rule for the guidance of men in the common business of life. In Brisbane vs. Dacres, 5 Taunt. 144, which is a leading case on the subject, Gibbs, J., states the rule to be, that money paid to a man who claims it as his right, with a knowledge of all the facts, cannot be recovered back. It may be that on a farther view he may form a different opinion of the law, and his subsequent opinion may be the correct one. But there are many doubtful questions of law, and when they arise the defendant has an option either to litigate the question, or to submit to the demand and pay the money. If the money be paid with a full knowledge (or with the means of such knowledge,) of all the circumstances, it cannot be recovered back on account of the payment having been made under an ignorance of the law. Bilbie vs. Lumley, 2 East 469. If it were otherwise held, there would be no saying to what extent the excuse of ignorance might not be carried; it would be urged in almost every case. Per Lord Ellenborough, Bilbie vs. Lumley, supra. This is a settled principle of law and sound policy. There is no other principle which is safe and practicable in the common intercourse of mankind. Shotwell vs. Murray, 1 Johns. Ch. 512 ; Lyon vs. Richmond, 2 Johns. Ch. 60 . But whether *389 money paid through ignorance of the law can be recovered back, is said by Mr. Justice Morton to be a much vexed question, and involved in no inconsiderable perplexity. Haven vs. Foster, 9 Pick. 129 . This, however, must be considered as one of the exceptions to the general recognition of the principle above referred to.

The plaintiff contends that the sum of $33.42, paid by Northumberland to Peterborough, and being the sum expended for the support of the pauper from the 15th of January, 1839, to the 4th of May, 1839, may now be recovered of the defendant, because it was paid by Northumberland in ignorance of the law, and the plaintiff may now be compelled to repay it to that town. But what the circumstances were under which the money was paid, does not appear. If it were paid with a knowledge of the facts, or with reasonable means of ascertaining them, our opinion is that it cannot be recovered back. If it were paid in ignorance of a materia] fact, without reasonable moans of ascertaining it, then it might be recovered. But mere ignorance of the law will not enable a party to recover money paid in consequence of that ignorance. Whether the presumed liability on the part of Northumberland, to discharge which the payment was made, arose from a view of the law, or of the facts, or from a consideration both of the law and the facts, does not appear. But the facts might have been ascertained by one party as easily as by the other; and, in the absence of all evidence to the contrary, we must presume that the money was paid with a full knowledge of all the facts.

Perhaps it may be said, that from the present case we are authorized to believe that this was not a compromise of disputed rights, but merely a payment of money by Northumberland upon a request by Peterborough. But whether this were so, does not appear, and therefore what would be the effect of such a payment it is unnecessary to decide. Peter-borough, however, now has the money, and it does not ap *390 pear that this town ever has been or ever will be called upon to repay it; and during the existence of such a state of facts there is surely no reason why the defendant should be compelled to pay the plaintiff the same sum of money which the latter has already received from Northumberland. The verdict, therefore, must be amended, by deducting from its present amount the sum of $33.42.

The case also finds that the selectmen of Northumberland made an agreement in writing with the plaintiff that they Avould support the pauper from the 4th day of May, 1839, to the 4th day of December, 1839. The sum expended during this period was $45.85, but no part of it has been paid by Northumberland. But such an agreement cannot affect the right of the plaintiff to recover. Selectmen have a general superintendence over the prudential affairs of the town. They are confined in the exercise of their duties to such acts as, in the exercise of a sound discretion, would be proper. Woodbury, J., Sanborn vs. Deerfield, 2 N. H. Rep. 253 . But they have not a general authority to bind their town by contract. Andover vs. Grafton, 7 N. H. Rep. 300 . They have a discretionary power to give an indemnity on behalf of the town. Pike vs. Middleton, 12 N. H. Rep. 278 . As they are ex officio overseers of the poor, they may waive exceptions to a notice given them by another town that a pauper has been relieved. Hanover vs. Eaton, 3 N. H. Rep. 38 . They cannot by their mere acts or declarations change the settlement of a pauper from one town to another, and confess away the rights of their town. Peru vs. Turner, 1 Fairf. 185; Jaffrey vs. Cornish, 10 N. H. Rep. 505 . And there is nothing in the statutes, or in the nature of their authority, or in the reason of the matter, which can enable them to bind their town to maintain a pauper with whose support the town is not legally chargeable. Within their proper sphere they may do all acts necessary to the proper discharge of their duties, but of their mere motion to impose a pecuniary liability upon the town, is be *391 yond their powers. They might as well assume to charge the town with the payment of a sum of money for any other purpose, as for this; and our opinion is that this contract does not affect the right of the plaintiff to recover.

The defendant excepts to the notice served on the 11th of April, 1839, because it is not dated, and because it does not appear when the support specified therein was furnished. But the notice states that on the 15th day of January, Iasi past, and ever since, the pauper has been supported by Peterborough, and that the sums expended for her relief since the 15th day of January are as follows, &c. We have held that where a complaint under the bastardy act alleged that the child was begotten on the 15th day of May last, and was not dated, but was sworn to on the 13th day of January, 1840, the time was alleged with sufficient precision. Marston vs. Jenness, 12 N. H. Rep. 137 . The service renders the time in this case as certain as it was made by the administration of the oath in the case cited, and this exception must be overruled.

It is objected to the second notice, served on the 29th day of November, 1839, that it was not returned to the clerk’s office within twenty days from its service. The act of December 16th, 1828, section 11, [N. H. Laws 306, Ed. of 1830,) which governs this case, requires such a return to be made. Under the second section of the act of June 27th, 1809, which contained a similar provision, we have held that an action for relief furnished a pauper could not be maintained, unless such return were made. Conway vs. Wakefield, 3 N. H. Rep. 277 . That decision settles that nothing can be recovered under this notice, and the amount specified therein must be deducted from the verdict.

It is also objected to the second and third notices, that they specify the relief furnished to have been “ board and nursing,” while in the writ the relief is stated to have been “ board and washing.” Nursing, which in this connection means aid rendered in sickness, is a very different matter *392 from washing, and proof of the latter cannot upon any principle support a claim for the former. The party has chosen to specify in this manner, and must be bound by his specification ; and for this variance the notices are bad, and the amount of the support mentioned in them must be deducted from the verdict.

It is objected that there is no evidence that the meeting at which Moore was elected was duly held, or that the warrant for the meeting had a seal upon it. These proceedings took place thirty-eight years ago, and the case finds that Lovejoy, the town clerk at that time, is dead. A copy of the original warrant for the meeting was produced on the trial, and there is evidence that the signatures of two of the persons whose names are signed to it as selectmen are genuine. It also appears that the warrant, when it was found by Adams, had a seal upon it; or at least it may fairly be inferred that such was the case, for there was a seal upon it when it was returned to him by the selectmen, to whom he had lent it, and there is no reason to suppose that the seal was placed there by them. We think that these facts, together with the evidence of the posting up of the warrant, and the election and oath of Moore, bring the case within the principle of Bishop vs. Cone, 3 N. H. Rep. 515; Northwood vs. Barrington, 9 N. H. Rep. 369 , and Cavis vs. Robertson, 9 N. H. Rep. 524 , and that there is sufficient evidence to authorize the jury to presume that the meeting was duly held.

It is said that the pauper’s husband acquired a settlement in Vermont, and consequently lost his settlement in Lancaster. This objection must be overruled, because the point is settled the other way by the case of Hanover vs. Weare, 2 N. H. Rep. 131 , in which it is held that the,operation of all pauper laws is local, and that in disputes between our own corporations, we can look only to settlements acquired within our own limits.

The plaintiff is entitled to recover only the sum of $45.85, the amount expended from the 4th day of May to the 4th *393 day of December, 1839, and being the sum which Northumberland contracted to pay. The verdict must be amended by being reduced to ¡¡>45.85, and for that sum there must be Judgment for the plaintiff.