goods was entirely voluntary, and was a valid contract on good consideration. Secondly, because the defendant is a mere receiver, and has paid over the money in question without any notice. The plaintiffs' letters shew that they were anxious to avoid a condemnation of the goods, and that with that view, they had voluntarily paid the money. The contract for the payment of the money was valid, as the 7 & 8 Geo. 4, c. 53 (a), s. 98, enables excise commissioners to restore seizures, and compound penalties at any time before Judgment. The crown made a bona fide seizure of the plaintiffs' goods, and instead of proceeding to condemn them, consented to restore them on being paid a less sum than the actual value of the goods. That is a sufficient consideration for the payment of this money by the plaintiffs. If we assume it to be doubtful, whether these goods would have been ultimately condemned, still there is a sufficient consideration for the payment of this money. Longridge v. Dorville (b). If this had been merely an executory agreement, the crown might have enforced it, and it would have been no defence to urge the illegal nature of the seizure. It cannot be said, that this money is recoverable, as money paid under compulsion; because in all cases of money paid under 98th section of the Act, there must be a species of duress.—[Parke, B. -But for that section of the Act of Parliament, the crown would be obliged to proceed with the seizure.]-The cases of distress and execution differ from these, because there the goods are in the nature of a pledge for the payment of the rent. Here the seizure is absolute. In Irving v. Wilson (c), which (a) That section is as follows:"and be it further enacted, that in all cases where any penalty or forfeiture shall be incurred under or by virtue of this Act or any other Act or Acts of Parliament relating to the revenue of excise, and it shall appear to the satisfaction of the commissioners of excise, or the commissioner or commissioners and assistant commissioners of excise in Scotland and Ireland respectively, that the same was incurred without any intention of fraud, or of offending against this Act, or any other Act or Acts of Parliament relating to the revenue of excise, it shall be lawful for such commissioners of excise or commissioner or commissioners and assistant commissioners of excise in Scotland and Ireland respectively, to forbear to order any prosecution for the recovery of such penalty, or upon such terms and conditions as they respectively shall order in that behalf to forbear to order any prosecution for the condemnation of such seizure, and to restore such seizure to the proprie tor or proprietors, or claimant or claimants thereof; and that in all cases where any prosecution shall have been commenced, or shall be depending for the recovery of any duty or any penalty mcurred, or for the condemnation of any seizure made under or by virtue of this Act, or any other Act, or Acts of Parliament relating to the revenue of ex cise, it shall be lawful for the commis- (b) 5 B. & Ald. 117. Exchequer. ATLEE v. BACKHOUSE. Exchequer. ATLEE v. BACKHOUSE. will be cited on the other side, the officer, against whom the action was brought, had not acted bona fide; on the contrary, he had been guilty of extortion in seizing the goods. Here the seizure was bona fide, and the defendant was not concerned in the taking. Hills v. Street (d), does not support the argument of the present plaintiff, for there the agreement was to pay generally the charges for distraining, whereas the charges made by the defendant in that case were excessive. Willoughby v. Blackhouse (e), Lindon v. Hooper (f), Knibbs v. Hall (g), are authorities in favour of the plaintiffs. Secondly, in the present case, the money has been bona fide paid over by the defendant; and all the authorities decide that, when money has been paid over without notice by one who is a mere channel of conveyance for that purpose, such money cannot be recovered. The case of Snowdon v. Davies (h), which was cited when this rule was moved for, is far from contradieting this position.-[Parke, B.-Suppose a broker, by mistake, seizes your goods instead of another's, and places the proceeds of the sale in the hands of a banker, and the banker bona fide pays over the sum to another person, can an action for money had and received be brought against the banker?]-Such an action could not be sustained. Greenway v. Hurd (i), shews that an action for money had and received will not lie against an officer, who has paid over to his superior the proceeds of goods seized under an Act of Parliament which has been repealed. If this Court should decide that the present action is maintainable, there will be an end to all compromise under this Act of Parliament. Erle and W. H. Watson, contrà.-The payment over of the money to the defendant, was not made a ground of nonsuit at the trial. The defendant relied upon the letters only.-[Lord Abinger, C. B.-Unless the contrary was proved, I should presume that the money was paid over by the seizing officer in pursuance of his duty.]-The seizure of the goods was illegal, and the plaintiffs may therefore recover the money which they paid to redeem them.-[Parke, B.-The nature of the transaction is this; the plaintiffs inform the commissioners, that if they will forbear to decide finally upon the seizure, and will deliver back the goods, a certain sum of money shall be paid to them. The consideration for this payment was the foregoing the right of condemnation; and this circumstance distinguishes the present case from that of private parties who possess no such right.]-It is clear law, that if an action is brought for money which is not due, and that money is paid, it may be recovered. The foregoing of a claim that is doubtful, may be a good consideration for the payment of money, but the case is otherwise where the claim is unfounded or illegal. The plaintiffs could have proved that the seizure was illegal, and that the whole transaction was a conspiracy between the excise officers and the servants of the plaintiffs; that being the case, the doctrine applies which is laid down in Astley v. Reynolds (j), Pulham v. Down (k), Shaw v. Woodcock (1), Morgan v. Palmer (m), Duke de Cada (d) 5 Bing. 37. (e) 2 B. & Cr. 821. (g) 1 Espin. N. P. C. 84. (i) 4 T. Rep. 553. val v. Collins (n), Knibbs v. Hall, fortifies this argument, for there the Lord ABINGER, C. B.-We may admit the authority of all the cases that have been cited. Those were cases where property had been taken or detained to enforce the payment of money that was not due, and it was held, that actions for money had and received might be brought by the party who had so paid the money. This rule holds good with regard to tolls improperly exacted, and was observed in the case of the Mayor of Yarmouth, who refused to grant a license unless a fee were first paid. But those cases have no application here, for neither the officer who seized the goods, nor the defendant had any intention of exacting money. The case stands thus; the plaintiffs apply to the commissioners to be allowed to redeem their goods on payment of a certain sum. At first the commissioners refuse; a negociation then takes place, the commissioners acting with perfect bona fides, entertain some doubts whether a compromise is proper, but when their doubts are cleared up, the matter ends thus; the plaintiffs are willing to resign all claim to the goods on condition of the crown's foregoing the right of condemnation, without prejudice however to the right to sue for penalties. Now what is the situation of the crown officers? they might, without any liability to costs, have proceeded to obtain a judgment in rem in the course of six or eight weeks. They forbear to take this course, and without any improper motive, enter into a compromise, the condition of which is, that the plaintiffs shall give up all claim to the goods. The latter then allege, that the money paid by them to recover the goods was paid under duress, and that they are at liberty to recover it at any time within six years. If we were to decide that this action is maintainable, we should render it impossible for the commis (n) 4 Ad. & Ell. 858; 2 Har. & Woll. 54, S. C. Exchequer. ATLER v. BACKHOUSE. Exchequer. ATLEE v. BACKHOUSE. sioners of excise to make any compromise in respect of goods seized, except in cases where they might be able to prove the legality of the seizure at any period within six years. I think therefore that this rule must be discharged. PARKE, B.-I am of the same opinion. We must assume it as a fact in this case, that the money was paid over by the excise officer to Backhouse, and by him to the bankers of the Treasury, before any notice was given; and then no action would lie against the defendant. For, although, if no compromise or condemnation had taken place, an action might have been sustained against the officer who made the seizure, it does not follow that an action will lie against the person to whom he has paid it over. The reason why an action for money had and received was held to lie against the bailiff in Snowden v. Davis (0) is, that the money was not paid for the purpose of being delivered to the sheriff, but in order to get rid of the exe cution. In the absence of the other circumstances of this case, an action might lie against the officer who seized the goods, but not against Backhouse, who, unless he has received notice, stands in the situation of a mere middleman. It appears to me, that this money being paid to the commissioners under an agreement cannot be recovered, and that the plaintiff is precluded from recovering by the Act of Parliament itself. When the matter was first before me, I doubted whether such a compromise as this was binding, but I now think it has a binding operation independently of the Act of Parliament. Mr. Erle says, that a party may recover money which has been paid to redeem goods wrongfully taken; and he alleges, that in the present case the goods were under duress. His argument is, that this cannot be considered a voluntary payment, as the parties were not on a footing of equality. But the question is, whether there was a binding agreement; I am of opinion that there was, that it was final, and that its conditions were, that upon the goods being re-delivered, the seizure should not be called in question, nor any attempt made to get back the money. There was also a sufficient consideration for this agree ment; neither the plaintiffs nor the commissioners considered the seizure as illegal, both parties acted with perfect bona fides, the plaintiffs agreed to pay a certain sum of money, the commissioners to deliver up the goods. The crown relinquished the beneficial right of a summary proceeding against the goods, and received from the plaintiffs the sum of 6,1627. 14s. The case resembles Longridge v. Dorville, without being exactly parallel. One circumstance is common to both, namely, that the party against whom the action had been brought, had abandoned a valuable right. This rule must be considered as discharged on this latter ground. BOLLAND, B.-It appears from the letters that the settlement was voluntary on the part of the plaintiffs, and made on a full and adequate consideration. The object of the plaintiffs was to obtain a return of their goods; with this view, they make several propositions to the commissioners, which are rejected; and finally, they agree to pay a large sum of money, and to hold themselves responsible for such proceedings for penalties, as the board should think proper to institute. (His lordship here read the two last letters of the plaintiffs to the commissioners.) In these letters, the plaintiffs have stated the (0) 1 Taunt. 363. reason why they desired restoration of their property, and they seem to have viewed the transaction in the same light in which this Court is disposed to regard it. Without entering, therefore, upon the question of notice, I think this rule must be discharged. GURNEY, B.-The compromise which has taken place in the present instance has been made upon sufficient consideration. The crown possessed the advantage of being able to try this question in a very speedy manner, and has relinquished the right of doing so. That circumstance affords a sufficient consideration for the payment of this money by the plaintiffs; and if they were able to recover it in this form of action, the consequence would be that they might wait till witnesses were dead, or till the commissioners were otherwise prejudiced in their defence by lapse of time, and might then try the legality of this seizure in an action for money had and received. It is not necessary to decide the question of the payment over of this money by the defendant, since the case may be decided on the other ground. Rule discharged. COSTER v, WILSON, Bart., and WEBB, Knt. Exchequer. ATLEE BACK HOUSE. s. 14, which states that witnesses were examined by the magistrates not bad beupon oath, is cause it omits to allege that the witnesses TRESPASS against magistrates for assault and false imprisonment. The An order under declaration stated that the defendants on, &c., imprisoned the plaintiff 11 G. 2, c. 19, in Maidstone gaol, whereby he was prevented from attending to his necessary affairs, and was forced to expend a large sum of money in procuring his discharge by Habeas Corpus. Plea: Not guilty. At the trial before Tindal, C. J., at the Maidstone Spring Assizes, 1835, it appeared that the plaintiff had occupied certain premises the ownership of which was disputed, that he had paid rent to one of the parties who claimed to be landlord, and that afterwards, by permission of that party, he had removed his goods from the premises. The person to whom the rent had been so paid appeared before the to the value of magistrates when the prisoner was brought up for examination, produced his title deeds, and claimed to be owner of the premises from which the goods had been removed. On the 21st April the defendants made the following is not invalid order: were examined upon oath, as the goods removed. A warrant of commitment for omitting to state that complaints were made in writing, and that the witexamined upon oath, if state nesses were ments to that tained in the "Kent (to wit). Be it remembered, that on the 21st day of April, in the year of our Lord 1837, at Woolwich in the county of Kent, Mary Curran, of Woolwich aforesaid, in the said county of Kent, widow in her own person came before us Sir Thomas Maryon Wilson, Baronet, and Sir John Webb, Knight, two of His Majesty's justices of the peace in and for the said county, residing near the place where the goods and chattels hereinafter mentioned were removed, (we, or either of us, not being interested in the messuage and premises whence the goods and chattels were removed as hereinafter mentioned), and informed us in writing that on the 19th day of April then instant, Thomas Coster, late of the parish of Woolwich aforesaid, labourer, unlawfully and fraudulently did convey away and carry off from a certain messuage and premises situate in Short's Alley in the parish of Woolwich aforesaid, in the said county, whereof the said Thomas Coster, had been for sometime previously, and was then and there the tenant by the month, under and from her the said Mary Curran, upon the holding of which said messuage and pre- where there are conflicting titles to the premises. effect are conorder, and the order is incorporated in the warrant. Magistrates are empowered by 11 G. 2, c. mine whether goods have fraudulently, been removed even in cases |