Ezch. of Pleas, 1838. The rule re LUMLEY V. THOMPSON. PLATT having, on the part of the plaintiff, obtained a quiring a term's rule to set aside certain proceedings in this cause for notice before any step be taken in a cause, ment. irregularity, Chilton, in shewing cause, objected that, as more than four terms had intervened since any step taken in the cause, (nothing having been done since Easter Term, 1836), no new step could now be taken without a term's notice; and referred to May v. Wooding (a), and the rule of C. P,, E., 13 Geo. 3, there cited. In Tipton v. Meeke (b) where the plaintiff, having obtained a rule for a new trial, neglected to carry the cause down for more than four terms, the Court refused to discharge the rule on motion, without a term's notice having been given. PARKE, B.-The plaintiff does not here seek to take any proceeding to judgment, but complains that the past proceedings are irregular, and applies to the equitable jurisdiction of the Court to have them set aside. The object of the rule requiring a term's notice is, that each party may be forewarned of the intention of the other to take any step in proceedings towards judgment, where they have been suspended for so long a period as four terms. That reason does not apply here. Cause was then shewn on the merits, and on another ground the rule was Discharged. (a) 3 M. & Sel. 500. (b) 8 Moore, 579. Erch. of Pleas, 1838. ATLEE and Others v. BACKHOUSE. tember, 1834, a seizure of spirits was made by the officers of excise on the plaintiffs' premises. missioners of restoration of the spirits; first, on se curity being ASSUMPSIT for money had and received. Plea, non on the 1st Sepassumpsit. At the trial before Lord Abinger, C. B., at the London Sittings after Trinity Term, 1837, the following facts were opened on the part of the plaintiffs, and admitted between the parties:The plaintiffs, Messrs. Atlee, Young, and Bainbridge, The plainin the year 1834, were partners in an extensive distillery to the Comat Wandsworth, the rate of their consumption being about Excise for the 24 pipes of spirits to be delivered out per day. On the the spir 1st September, 1834, they had placed in waggons on their premises, certain casks of spirits which were to be delivered out the following morning, and in respect of which request notes had been left at the Excise Office for permits, and for which permits would arrive in time the next morning to carry out the spirits. On the night of that day some of the officers of Excise came upon the premises, and seized all the spirits that were found there, as well in the vats of the store room as in casks in another part of the store, and in the casks which had been placed on the waggons, as being forfeited for a breach of the regulations of the excise laws. The alleged ground of forfeiture was, that in the night, when the officers were ab given for paypenalties in ment of any curred; then, on payment of their value, to abide the result of the inquiry; which requests were refused. A writ of ap praisement having been sued out, in order to the condemnation of the goods, the plaintiffs Commissioners proposed to the to pay the amount at which they were appraised, upon their restoration. The Commissioners answered "that they could accept no offer for the restoration of the seizure, the acceptance of which might prejudice the proceedings for penalties;" whereupon the plaintiff's stated, that, by their paying the money, they gave up all claim to the seizure, and held themselves responsible for such proceedings for penalties as the Board might think fit to institute." The Commissioners thereupon agreed to restore the spirits; and accordingly, on the 11th September, the appraised value was paid by the plaintiffs to the defendant, the Receiver-General of Excise, and the spirits were restored to them. An information for penalties was subsequently filed against the plaintiffs, in which a verdict was taken for the Crown, by consent, for a mitigated amount of penalties. In November, 1836, the plaintiffs gave the defendant notice of action, and re-demanded the money:-Held, that the plaintiffs could not recover back the money so paid, in an action for money had and received, inasmuch as it was paid on a binding agreement, made upon good consideration, whereby the plaintiffs agreed that it should not be recoverable back; and further, that they were precluded from recovering by the provisions of the 7 & 8 Geo. 4, c. 53, s. 98.—Held, also, that, at all events, the action could not be maintained against the defendant, inasmuch as the money was received by him only for the purpose of its being paid over pursuant to the act of Parliament, and it was not shewn that it remained in his hands till he had notice to retain it. VOL. III. T T M. W. 1838. ATLEE บ. BACKHOUSE. Exch. of Pleas, sent, the plaintiffs' servants had set the machinery at work which removed the spirits from the receiver into the store vats, in breach of the provisions of the 6 Geo. 4, c. 80, ss. 75 & 79 and it was contended for the plaintiffs, that assuming this to have been done in fraud of the revenue, (which the plaintiff's denied), the seizure of any spirits besides those which were actually so removed was clearly illegal. On the 2nd of September, the plaintiff, Mr. Atlee, addressed the following letter to the Commissioners of Excise : "Honorable Sirs, "An extensive seizure of spirits has been made on the last night and this morning. Your Honors' officers will detail to you the whole particulars. We have to crave your Honors' indulgence that the spirits seized may be restored to us; we on our parts entering into bonds to give security for the payment of which penalty may have been incurred, upon the investigation of the case. "I remain, for partners and self, "Your Honors' obedient servant, "JOHN ATLee." This proposition being refused, on the 4th of September Mr. Atlee wrote again as follows: "Your Honors having rejected my petition for the restoration of our spirits, waggons, and utensils, on my giving security for the same, except as to the latter waggons, &c. &c., I have now to beg you will restore the whole on my paying into the hands of your receiver the value of the spirits, waggons, vat, and pump, &c. &c., of 6,500l., to abide the result of trial or investigation. "For partners and self, "JOHN ATLee." This and other similar applications having been also rejected, on the 9th of September Mr. Atlee wrote as Exch. of Pleas, follows: "Honorable Sirs, "The officers of your Honorable Board having intimated to us that the removal of the spirits seized is in contemplation, we beg to assure your Honors that we are now fully occupied in investigating the subject, and we crave your indulgence that no steps be taken for the removal of the spirits in the present stage of the matter. Should your Honors require any security to be given by us against any improper interference on our part in the interim, we are perfectly ready to enter the same, in such manner as you may direct." This request was not complied with, and a writ of appraisement having been sued out, with a view to proceeding by information in rem for the condemnation of the spirits, on the 10th of September Mr. Atlee wrote to the Commissioners as follows: "Honorable Sirs, "Your Honors are aware that on the night of the 1st of September instant, an extensive seizure was made by your officers of spirits, vats, and waggons, upon our premises, for an alleged breach of the revenue laws on the part of our servants. Without entering now upon the merits of the case, we are most anxious to avoid the great anxiety attendant upon any legal proceedings, and to remove the grievous hindrance and interruption which the seizure of our property has unavoidably occasioned in the prosecution of our business: we therefore respectfully crave leave of your Honors that upon our paying the sum of 5,000l. the whole of the property seized should be restored to us." This offer being also declined, on the same day another letter was sent to the Commissioners in the same terms, 1838. ATLEE v. BACKHOUSE. 1838. ATLEE V. Exch. of Pleas, except that the plaintiffs proposed the payment of the sum of 5,9621. 14s. (at which amount the goods had been appraised), in addition to a sum of 200l. which they had BACKHOUSE. already paid on the restoration of their waggons. In answer to this letter, the commissioners made the following communication to Mr. Atlee :-" The Board cannot accept any offer for the restoration of the seizure, the acceptance of which may prejudice such proceedings as they may be advised to institute for penalties." On the same day Mr. Atlee wrote again to them as follows: "Honorable Sirs, "I beg to state that by our paying the sum of 6,1627. 14s., we give up all claim to the seizure, holding ourselves responsible for such proceedings for penalties as the Board may think fit to institute." The Commissioners thereupon agreed to restore the spirits, &c. on receipt of the sum of 6,1627. 14s., and that sum was accordingly paid by the plaintiffs to the defendant, the Receiver-General for the Excise, and the goods were restored to the plaintiffs. Afterwards, on the 13th September, the plaintiffs wrote to the Commissioners as follows:-"We beg to inform your Honors, that on the 11th instant, in accordance with your permission, we paid to the Receiver-General of Excise the sum of 5,9627. 14s. for the release of the spirits, vats, and other property seized upon our premises on the 1st of September instant. It is far from our wish or intention to enter into any argument with your Honors upon the question, but we beg most respectfully to submit to your Honors that as to twelve pipes of the spirits seized, there is room for your Honors' favorable consideration," &c. &c. An information was subsequently filed by the AttorneyGeneral against the plaintiffs for penalties, which came on for trial in the month of May 1835; and after a hearing of two days, a general verdict was taken by consent |