Bilbie against Lumley and Others

JurisdictionEngland & Wales
Judgment Date28 June 1802
Date28 June 1802
CourtCourt of the King's Bench

English Reports Citation: 102 E.R. 448


Bilbie against Lumley and Others

Distinguished, Hales v. Freeman, 1819, 4 Moore, 21. Discussed, Smith v. Alsop, 1824, 13 Price, 825.

bilbie against lumley and others. Monday, June 28th, 1802. Money paid by one with full knowledge (or the means of such knowledge in his hands) of all the circumstances cannot be recovered back again on account of such payment having been made under an ignorance of the law. [Distinguished, Hales v. Freeman, 1819, 4 Moore, 21. Discussed, Smith v. Alsop, 1824, 13 Price, 825.] This was an action for money had and received, and upon other common counts, which was brought by an underwriter upon a policy of insurance in order to recover back 1001. which he had paid upon the policy as for a loss by capture to the defendants the assured. The ground on which the action was endeavoured to be sustained was that the money was paid under a mistake, the defendants not having at the time of the insurance effected disclosed to the underwriter (the present plaintiff) a [470] material letter which had been before received by them relating to the time of sailing of the ship insured. It was not now denied that the letter was material to be disclosed ; but the defence rested on now and at the trial was that before the loss on the policy was adjusted, and the money paid by the present plaintiff, all the papers had been laid before the underwriters, and amongst others the letter in question : and therefore it was contended at the trial before Booke J. at York, that the money having been paid with full knowledge, or with full means of knowledge of all the circumstances, could not now be recovered back again. On the other hand it was insisted that it was sufficient to sustain the action that the money had been paid under a mistake of the law; the plaintiff not being apprized at the time of the payment that the concealment of the particular circumstance disclosed in the letter kept back was a defence to any action which might have been brought on the policy: and the learned Judge being of that opinion, the plaintiff obtained a verdict. (a)1 Cowp. 129. (b) 2 Term Rep. 749. (a)2 But such lessee may maintain trespass upon his mere possession against a wrong doer. Graham v. Peat, ante, 1 vol. 244. 2 EAST, 471. BILBIE V. LTJMLEY 449 A rule nisi was granted in the last term for setting aside the verdict and having a new trial; which was to have been supported now by Park for the...

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64 cases
7 books & journal articles
  • Change of position and restitution for wrongs: 'ne'er the twain shall meet'?
    • Australia
    • Melbourne University Law Review Vol. 33 No. 1, April 2009
    • 1 April 2009
    ...was typically actionable only if the mistake was one of fact and not simply a mistake of law: see, eg, Bilbie v Lumley (1802) 2 East 469; 102 ER 448. This restriction was abolished in Australia by David Securities (1992) 175 CLR 353, 385 (Mason CJ, Deane, Toohey, Gaudron and McHugh (85) Lip......
  • The Development of the High Court's Willingness to Overrule Common Law Precedent
    • United Kingdom
    • Sage Federal Law Review No. 45-2, June 2017
    • 1 June 2017
    ...OVERTURNED David Securities v Commonwealth Bank of Australia (1992) 175 CLR 353 Restitution: mistake of law Bilbie v Lumley (1802) 2 East 469 (102 ER 448) held to be no longer part of Australian law. Northern Territory v Mengel (1995) 185 CLR 307 Tort Beaudesert Shire Council v Smith (1966)......
  • Table of Cases
    • Canada
    • Irwin Books The Law of Large-Scale Claims Interjurisdictional Dimensions
    • 15 June 2005
    ...60 D.L.R. (4th) 30, [1989] B.C.J. No. 1032 (C.A.) ........................................ 285 Bilbie v. Lumley (1802), 2 East 469, 102 E.R. 448 .............................................. 256 Blake v. Minister of Correctional Services (1984), 5 C.H.R.R. D/2417 (Ont. Bd. Of Inquiry) ..........
  • The Rise and Fall of the Mistake of Law Rule
    • Ireland
    • Trinity College Law Review No. III-2000, January 2000
    • 1 January 2000
    ...(5"' Ed., Sweet and Maxwell, 1998), at 213: "few subjects are more confused than recovery of money paid under a mistake of law." 2 (1802) 2 East 469; 102 ER 448. © 2000 Erik Gannon and Dublin University Law Society Introduction [Vol. 3 Trinity College Law Review defendants who failed to dis......
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