Umphelby v McLean and Another
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1817 |
| Date | 01 January 1817 |
| Court | Court of the King's Bench |
English Reports Citation: 106 E.R. 16
IN THE COURT OF KING'S BENCH.
See Royal Aquarium, Limited, v. Parkinson, [1892] 1 Q. B. 445.
against M'LiAN and another. 1817. Assumpsit for money had and received, brought to recover the amount of an excessive charge made by the defendants as collectors, on a distress for arrears of taxes : Held that the defendants were not entitled to a month's notice before action brought, under stat. 43 G. 3, e. 92, s. 70, which provides that no writ or process shall be sued out for any thing done in pursuance of that Act, till after one month's notice. [See Eoyal Aquarium, Limited, v. Parkinson, [1892] 1 Q. B. 445.] Assumpsit for money had and received. Plea, non assumpsit. At the trial before Dallas J. at the last Spring Assizes for the county of Kent, it appeared that this action was brought to recover the amount of an excessive charge, made by the defendants as collectors of taxes, for their expences upon a distress upon the plaintiff's property, for an arrear [43] of taxes. Two objections were raised on the part of the defendants, first, that under the stat. 43 G. 3, c. 99, the defendants were entitled to a month's notice, before action brought. Secondly, that the action had not been commenced in time, that is, not within six months next day after the fact committed. The excessive charge having been clearly proved, the learned Judge directed the jury to find a verdict for the plaintiff, with liberty to the defendants to move. Accordingly, in Easter term last, Gurney obtained a rule nisi to set aside the verdict and enter a nonsuit, against which Marryat now shewed cause. The question is, whether in assumpsit to recover back money improperly taken from the plaintiff, the defendants are entitled to the protection afforded by the 70th section of the Act, by which it is enacted, "That if any action shall be brought against any person, for any thing done in pursuance of this Act, such action shall be commenced within six calendar months next after the fact committed ; and no writ or process shall be sued, until one calendar month next after notice shall be given to the defendant, and the defendant may within the month tender amends, and may plead the same if not accepted in bar of the action, &c." This is an action for a non-feazance, in not returning back the money which the defendants extorted from the plaintiff. The Act of Parliament extends its protection to cases of misfeazanee and...
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