Protection and the (1) plaintiff, in an action against the justice, is not entitled to recover any more than the amount of the penalty levied upon him (2) and two-pence damages, without any costs of suit, unless he alleges and proves that the acts were done maliciously and without any reasonable and probable cause (3), and proceeds by action on the case (4); and the plaintiff will not be entitled to recover any penalty that has been levied, nor any damages or costs, if the justice should prove at the trial that the plaintiff was guilty of the offence of which he had been convicted, or on account of which he had been apprehended or had otherwise suffered, and that the punishment which he actually underwent, was not greater than that assigned by law to the particular offence (5;· A recital in the warrant of commitment, that the conviction was grounded on the information of one person, when, in fact, the information was preferred by another, is not sufficient to render But the protection the magistrate amenable to an action (6). of the magistrate will not apply when the whole proceeding is coram non judice; and in a late case, when an action of trespass was brought against a magistrate who had isued his warrant to seize a gun, and the general issue was pleaded, it was holden necessary for the magistrate to show either by the conviction or by some other evidence that the gun was used for the purpose of destroying game (7). An action is also maintainable against an officer for neglecting to perform a ministerial duty enjoined by statute, as against the commissioners of customs for not making an order on the receiver general to pay the plaintiffs a premium of £700 on one of the 15 ships fitted and cleared out for the southern whale fishery, under the provisions of the statute 26 Geo. 3. c. 50. (8). It seems also that the court of king's bench will allow a writ of mandamus to be issued, to compel the coramissioners of excise to grant a permit for the removal of wine, but on granting a rule nisi for the mandamus, the court will not make it a part of the order, that the proceedings to seize (1) Massey v.Johnson, 12 East, 67.71. (2) Massey v. Johnson, 12East. 79. (3) Burley v. Bethune, 5 Taunt. (4) 43 Geo. 3. c..141. s. 1. (6) Massey ▼. Johnson, 12 East, 67. (7) Leigh v. Torring, Serjeant's Inn, Hil. Term, 1806. Cripps v. Durden, Cowp. 640.; Gray v. Cookson, 16 East, 21, 2. (8) Lacon v. Hooper, 6 T. R. 224. 26 Geo. 3. c. 50. s. 13. and s. 2 & 3. ante, 613. the wines, as unentered stock in the hands of the dealer, shall be Protection and stayed in the mean time. (1) An action of trespass against a revenue officer for an act done in the execution of his duty, is removable from any of the other courts of law into the office of pleas of the court of exchequer (2). The proceeding for the removal of an action of this nature is a very ancient branch of the jurisdiction of the court of exchequer, and it operates after the manner of an injunction. The usual order is that the action be removed out of the king's bench or common pleas, or out of any other courts having jurisdiction, as the courts in London, the courts of Whitechapel, the Marshalsea courts, the courts of great sessions, and the county courts, for it has been used in all these instances; and in a late case, an order was granted for removing a writ of quare clausum fregit, and the proceeding thereon, in the court of great sessions for the county of Anglesea, on affidavits that the action was believed to be brought for a supposed trespass in entering a house to search for a person, against whom a capias had been issued by virtue of an information against him for concealing uncustomed goods (3). The order is to remove the action into the office of pleas of the court of exchequer, in which court it will be in the same førwardness as in that out of which the action is removed; the proceeding does not operate as a certiorari to remove the cause, but is a personal order on the party to prevent him from continuing the action in the court below, with liberty to commence it in the exchequer; and it appears to render it necessary for the defendant to appear to accept a declaration, and to put the plaintiff in the same state of forwardnes as he was in the other court (4). Formerly, indeed, it seems to have been thought that the officers of the revenue had a personal privilege to be sued in the court of exchequer (5). But this opinion is now exploded, and there does not appear to be any pleadable privilege; on the contrary, the court has always con (1) The King v. the Commissioners of Excise, 2 T.R. 381.; and see, as to the remedy by mandamus, The Kingv. Cookson. 16 East, 376. The King v. The Collector and Comptroller of Customs at Liverpool, 2 M. & S. 223. (2) Anon. 1 Anstr. 205. Cawthorne v. Campbell, id. ibid. and cases there cited; and see 1 Man ning's Exchequer Practice, 161 to (3) Ex parte Kingsman and (4) Cawthorne v. Campbell, 1 Price, 201. (5) By Perrot, Baron, 1 Anstruther, 216. Liability of Revenue Offcers, &c. Action removable into Court of Exchequer. Protection and Liability of Revenue Offcers, &c. Notice of Action and Tender of Amends. fined the removal of suits of this nature to instances in which actions have been brought against revenue officers for acts done by them in the execution of their office (1). The court of exchequer has an inherent jurisdiction over all matters relating to the public revenue. But where the interposition of this authority is desired upon merely equitable grounds, and upon compli cated facts, the proceeding must be by bill or information filed, and not by a motion or petition to the court. (2) Persons concerned in the execution of the laws relating to the revenue, are especially privileged with respect to actions brought against them in several particulars. 1. No writ or other process can be sued out against an officer of the customs or excise (3), or " any person acting by his order in his aid, for any thing done in the execution or by reason of the acts relating to either branch of the revenue, until the expiration of one calendar month next after notice in writing has been delivered to him or left at his usual place of abode by the attorney or agent for the person who intends to sue; in which notice must be stated, clearly and explicitly, the cause of action, the name and place of abode of the person in whose name the action is intended to be brought, and the name and place of abode of the attorney or agent; and a fee of 20 shillings and no more, is to be paid for preparing and serving the notice (4). Officers of the army and navy, and other persons lawfully employed in the execution of the laws relating to the customs or excise, are entitled to the benefit of notice (5), and a person who received a yearly stipend from the board of excise, but had no regular appointment, and who was sent by an excise officer to make search in a boat on its coming to the shore, was held entitled to notice, although the officer was not present at the time (5). But a notice does not appear to be action is brought for a mere non-feazance (7), as for retaining (1) Cawthorne v. Campbell, 1 Anstr. 205. (2) Ex parte Durrand, 3 Anstr. 743. (3) Also extended to officers of the (4) 28 Geo. 3. c. 37. s. 25. necessary when an (6) Clements and wife v. Keen, 2 Smith, Rep. 220. The action was brought for assault on plaintiff's wife. Plaintiff's counsel gave up the point, on defendant's waving the treble costs. (7) Umphelly v. M'Lean, 1 Barn. & Ald. 42. Atkins v. Banwell, 3 East, 92. Blanchard v. Bramble, 3 M. & S. 131. Revenue Offi too large a sum for a fee out of the produce of property dis- Protection and trained; nor is a notice necessary when an action is brought Liability of against the officer for an act clearly foreign to his line of cers, &c. duty, as for taking money for the restoration of goods not liable to seizure (1); or for seizing goods by virtue of a warrant of a description obviously different from those mentioned in it (2). But the notice is necessary when an action is intended to be brought for an act of an official nature, although the particular act may not have been strictly within the line of the officer's duty, as when duties received by an officer are sought to be recovered back in an action for money had and received, on the ground that the statute which imposed them had been previously repealed (3). So a notice must be given previously to the commencement of an action for an assault, if committed by the officer in the supposed execution of his duty, upon a person whom he suspected to be employed in running goods, although the person assaulted afterwards turned out to be innocent (4). And when the officer fairly believes that he is acting in conformity to the powers conferred upon him, the protection afforded by the statute will apply (5). The requisites of the notice have been already adverted to. It should state the cause of action, but it need not specify the form (6); although if a particular form of action be stated, it should be adhered to in the subsequent proceedings (7). It should state the facts, but it need not contain the legal reasons or arguments upon which the action is grounded (8). It should contain the plaintiff's name and place of abode; and a notice of action against a custom-house officer for breaking the plaintiff's dwelling house at C. street in the parish of G. is insufficient without identifying the place stated as the place of the plaintiff's abode (9). The attorney or agent's name and place of abode should also be stated; but if the surname be stated, it is sufficient to state the initial letter of the christian name (10), and the attorney may Protection and describe himself of the town in which he resides, as of BirRevenue Offi. mingham, without any further specification (1). cers, &c. Tender of Limitation of 2. The principal object. of the notice of action is to enable the officer to tender amends, if any act has been done by him which is not strictly conformable to law. The statute 28 Geo. 3. c. 37. provides that an officer, or other person acting in his aid, to whom the notice has been given, may at at any time within one calendar month after the giving of the notice, tender amends to the person complaining, or his agent or attorney, and if the amends are not accepted, may plead the tender in bar to the action, together with the plea of not guilty, and any other plea, with leave of the court; and if upon issue being joined on the plea, the jury find that the amends tendered were sufficient, they will give a verdict for the defendant; and if such verdict be given, or if the plaintiff be nonsuited, or if he discontinue the action, or if judgment be given for the defendant upon demurrer, the defendant will be entitled to the costs which he would have been entitled to if he had pleaded only the general issue; and if the jury find that no amends were tendered, or that they were insufficient, and also find against the defendant on the other plea or pleas, they will give a verdict for the plaintiff, with such damages as they think proper (2). Even when an officer, or a person acting in his aid, has neglected to tender amends, or has tendered insufficient amends before action brought, it is still lawful for him, by leave of the court, at any time before issue joined, to pay money into court (3); and proceedings in an action for an unlawful seisure have been stayed on the terms of restoring the goods and paying costs. (4) 3. The statute 28 Geo. 3. c. 37. also provides that every action or suit for a thing done in pursuance of the acts relating to the customs or excise, shall be commenced within three months next after the matter or thing done (5). In computing the time, the day on which the act was done is to be included and reckoned as one (6). And the calculation is made by lunar (1) Osborn v. Gough, 3 Bos. & (2) 28 Geo. 3. c. 37. s. 27. (5) 28 Geo. 3. e. 37. s. 23. and see 23 Geo. 3. c. 70. 8. 34. 24 Geo. 3. st. 2. c. 47. s. 35-39. and see the consolidation act, 59Geo.3. c.52. s.59. and 24Geo. 3. sess. 2. c. 47. s. 39. (6) Castle v. Burdett, 3 T. R. 623. Glassington v. Rawlins, 3 East, 407. Lester v. Garland, 15 Ves. J. 254. Watson v. Pears, 2 Campb. 294. |