82 Mass. 594 | Mass. | 1860
The first ruling of the court to which exception is taken was in conformity with the English authorities, and also with those of New York and New Hampshire. Chit. Bills, (10th Amer. ed.) 503 & note. Tebbetts v. Dowd, 23 Wend. 386. Edwards v Tandy, 36 N. H. 540.
But there are three early cases in Massachusetts which are often cited as establishing a contrary doctrine, as well in respect to ignorance of the law, as to the consideration for the waiver. May v. Coffin, 4 Mass. 341. Warder v. Tucker, 7 Mass. 449. Freeman v. Boynton, 7 Mass. 483. In neither of those cases does there appear to have been a thorough discussion of either of these points, and the court evidently intended to decide according to the English authorities.
A few years later, in Hopkins v. Liswell, 12 Mass. 54, after citing those cases, the court say that all the eases show only
In Martin v. Ingersoll, 8 Pick. 1, the earlier cases were not cited ; but the court held the indorser liable, on the ground that his waiver was made without any misapprehension of the facts. It is true that no pretence of misapprehension of law was there made, so that the effect of such an error was not considered. In Creamer v. Perry, 17 Pick. 332, Shaw, C. J. states the law to be that if an indorser, knowing that there has been no demand and notice, and conversant with all the-circumstances, will promise to pay the note, it is to be deemed a waiver. In Low v. Howard, 10 Cush. 159, the defendant prevailed, because his waiver was made in ignorance of material facts ; but in stating the legal principle applicable to the case, the chief justice stated, in substance, that a waiver made with knowledge of all the material facts is valid.
The maxim, Ignorantia legis non excusat, merely holds men to a just responsibility for their acts, and there is no reason for making this case an exception to it. “ Every man must be taken to be cognizant of the law; otherwise, there is no saying to what extent the excuse of ignorance might be carried. It would be urged in almost every case.” Bilbie v. Lumley, 2 East, 472. And a waiver is binding, as a general rule, without any distinct consideration. In view of all the authorities and principles applicable to the subject, we are of opinion that the ruling was correct, and that the earlier decisions of this court, so far as "they state a contrary doctrine, cannot be sustained.
The opinion expressed by the presiding judge, in regard to the presumption of knowledge by the defendant in respect to the demand and notice, is to be regarded as an opinion relative to the weight of the evidence, and therefore not subject to exception. The principal objection to it is, that it is very strongly expressed. Exceptions overruled.