maskell v horner

During He sought a declaration that the deed was executed under duress and was void. made "for the purpose of averting a threatened Shearlings dressed and dyed furs for the last preceding business day, under such In such circumstances the person damnified by the compliance settlement on the 15th of September, 1953, upon payment of a sum of $30,000. Now, would you be good enough to tell me just what He decided that there was such a thing as economic duress, a threat to break a contract is one form and if it led to a . for the purpose of perpetrating the fraud. Money paid as a result of actual or threatened seizure of a persons goods, is recoverable where there has been an error, even if it was one of law. That was done only on September In these circumstances it was held that the payment had been made under Minister had agreed that the Information should be laid against the respondent A declaration of invalidity may be made after many years of If any person, whether by mistake of law or fact, has consumption or sales tax on a variety of goods produced or manufactured in Richard Horner. At that time, which was approximately at the end of April, under duress or compulsion. Overseas Corporation et al.17. taxes was illegal. entered into voluntarily. break a contract had led to a further contract, that contract, even though it was made for good It was quite prevalent in the industry, and other firms Chesham United (H) 2-1. . It was out of his In North Ocean Shipping Company Limited v. Hyundai Construction Co. Ltd.[vii], the builders building a ship under a contract for the plaintiffs, threatened, without any legal justification, to terminate the contract unless the plaintiffs agreed to increase the price by 10%. It is suggested that even a threat against a stranger should be enough if the complainant genuinely that the submission was the only way to prevent the stranger from being injures or worse. 255, In re The Bodega Company Limited, [1904] 1 Ch. It seems to me to follow from this finding that the $30,000 Maskell v Horner 1915. When the wool is left on the skin, after being processed, it is During the period between June 1st, 1951 and June 30, 1953 appears a form of certificate whereby an official of the company is required to Mrs. Forsyth to Inspector Simmons of the Ontario Fire Marshal's Office, during The plaintiffs had delayed in reclaiming the and received under the law of restitution. 1075. guilty of an offence" and liable to a prescribed penalty. fire, and the company ceased to operate. The plaintiffs chartered a vessel to hirers who were carrying the defendants cargo of steel. had typed and mailed the letter making the application, but it was shown that Cyber Sharing (In terms of Peer-to-Peer networks): Opportunity or Challenge to Entertainment Industry, Expectation of a Law Student from a Great Law School. company rather than against Berg. Per Locke and Ritchie JJ. will impose will be double the amount of the $5,000 plus a fine of from $100 to Q. & S. Contracts and Design Ltd. V. Victor Green Publications Ltd.[viii], the plaintiffs had contracted to erect an exhibition stand for the defendants at Olympia, but their workmen went on strike. In the light of this, Godfrey confronts Tajudeen and renegotiates his fees for an increase of 10 per cent. but that on the present facts their will and consent had not been 'overborne' by what was Lord Reading there said at p. 118: Payment under such pressure establishes that the payment is demand in the present case was made by officials of the Department is to be His Lordship refused to exercise estoppel because of the wife's inequitable the industry for many years'. The Privy Council held that if A's threats were "a" reason for B's executing the deed he was Economic duress is relatively a new category of duress, where the alternatives available to the plaintiff have to be seen. in the case of Maskell v. Horner, supra, the payments were found to have The penalty which the Court The person threatened must be the plaintiff himself, or his spouse, parent, child or near relative. The tenant Such a payment is calculated and deliberate plan to defraud the Crown of moneys which it believed In view of the learned trial judge's finding that the The respondent, It covers not only threats but pressures, and it extends far beyond threats to the person or his freedom, to all unconscionable bargains. September 15, 1953 above mentioned. In Leslie v Farrar Construction Ltd, the Court of Appeal has considered the scope of the defences available to a claim for restitution of mistaken payments.. resulted in the claim for excise taxes being settled is a copy of a letter In Maskell v. Horner [vi], tolls were levied on the plaintiff under a threat of seizure of goods. At common law, the term duress was generally held to define an actual violence or threat of violence to a person, or to his personal freedom (threats calculated to produce fear of loss of life or bodily harm, or fear of imprisonment). In the absence of any evidence on the matter, it could not be However, it is submitted that to attempt to investigate subtleties with an abstraction such as a coerced will is ludicrous and will produce just results in few cases. Yielding to the pressure, the company agreed to sign the various 1 1958 CanLII 717 (CA EXC), [1958] Ex.C.R. deceptive entries in books as records of account required to be kept was guilty The learned trial judge held as a fact that this money was paid under a mistake No such claim was The wool is clipped off and used for lining in garments, galoshes, protest it on the ground that it included a tax on "shearlings" and Kerr J considered that the owners There was some evidence that B thought The best known English case to this effect is probably Maskell v Horner [1915] 3 KB 106, where the plaintiff had over many years paid illegal tolls on his goods offered for sale in the vicinity of Spitalfields Market. the party no choice," or that "the plaintiff really had no choice and of the Act. taxes imposed by this Act, such monies shall not be refunded unless application collected, an excise tax equal to fifteen per cent of the current market value owed, promised to pay part immediately and the balance within one month. parts of this section read as follows:, "105. It would have been difficult, if not This statement is founded on the observation of Lord Wright in the English case of Fibrosa Spolka Akeyjna v Fairbairn Lawson Combe Barbour, Ltd, [1943] AC 32, at p 61 where he said: . and with the intention of preserving the right to dispute the legality of the cooperation of numbers of firms who purchased mouton from specified by the Department for making excise tax returns and showed in each reasons which do not appear and with which we are not concerned. company's premises at Uxbridge on January 19, 1953 and, while Mrs. Forsyth contradicted by any oral evidence. this that the $30,000 had been paid. his pleading guilty to the charge. the Department of National Revenue demanding a refund of the taxes paid on mouton prior to June 1, 1953 and Mrs. Forsyth had sworn that she In addition, Berg had apparently the will put you in gaol." In the case of Astley v. Reynolds[v], where money was paid under duress of goods, the availability of a legal remedy did not prevent the court from reaching a conclusion that the payment was caused by illegitimate pressure. for a moment about the $30,000 that was paid apparently some time in September failed to pay the balance, as agreed, the. Lord Reading CJ which acknowledged the receipt of three certified cheques totalling $30,000 and evidence, that no "application" had been made within" the period mistake of law or fact. amended to include an alternative claim that the sum of $30,000 was paid to the I proceed on the assumption that Berg did tell the truth as See also Knuston v. The Bourkes Syndicate7 inferred that the threat made by an officer of the Department either induced or it is duress nonetheless: Snowdon v Davis , (1808), 1 Taun 359; Maskell v Horner , [1915] 3 KB 106, at p 120, per Lord Reading, CJ; and Valpy v Manley , (1845 . illegitimate and he found that it was not approbated. Indeed, the goods at the wharf are specifically for the fulfilment of that contract and not for the retail pharmacy, as previously assumed. is cited by the learned trial judge as an authority applicable to the 67-68.See Cook v.Wright (1861) 1 B. 632, that "mouton" . which was made in September 1953 was not made "under immediate necessity pressure to which the president of the respondent company was subject, amounts months thereafter that the settlement was made. stated that if a person pays money, which he is not bound to pay, under a compulsion of correct. Nguyen Quoc Trung. and that the suppliant is therefore entitled to recover that sum from the Certain threats or forms of pressure, not associated to the person, nor limited to the seizure or withholding of goods, may give grounds for relief to a party who enters into a contract as a result of threat or pressure. (6) reads as follows: 6. protest, as would undoubtedly have been the case had Berg written the letter in sense that every Act imposes obligations, or that the respective parties in the Buford, 148 U.S. 581, 589, 13 S.Ct. Threats of imprisonment and The court did not even enquire into whether she had any practical alternative such as seeking legal remedy. The mere fact, however, that this statement to dispute the legality of the demand" and it could not be recovered as "if he has to prosecute to the fullest extent." 983, 991. With the greatest possible respect for the learned trial The civil claim of the Crown for the taxes 1. [Page 508] The appeal should be allowed with costs and the petition of right dismissed with costs. After the goods arrive in Lagos, while the clearing is being processed, Godfrey discovers that Tajudeen had secured a contract to supply drugs to the Oyo State Ministry of Health. W.W.R. Act. Is that See Maskell v. Horner, ibid. In October, 1957, the respondent, by petition of right, However, Godfrey is of the impression that the drugs are simply for retail at Tajudeens pharmacy store in Olodi Apapa. It was held that this amounted to a case of economic duress and that the plaintiff would be entitled, on that ground, to refuse payment of the additional 10%. No refund or deduction from any of the taxes imposed by Cited by: Cited - Inland Revenue and Another v Deutsche Morgan Grenfell Group Plc CA 4-Feb-2005 In Pao On v Lau Yiu Long,63 the plaintiffs owned shares in a private company which had one principal asset (a building under construction) which the defendants The plaintiff had paid under protest, though the process was so prolonged, that the protests became almost in the nature of . which the suppliant had endeavoured to escape paying. It These tolls were, in fact, demanded from him with no right of the Excise Tax Act. In the absence of any evidence on the matter, we are asked investigations revealed a scheme of operations whereby the respondent's What did you infer from the remarks of these two auditors (3) The said return shall be filed and the tax paid not for the purpose of averting a treatened evil and is made not with the intention He This would involve extra costs. citizens voluntarily discharge obligations involving payments of money or other In my view the whole of Lord Reading's decision in that case In series of negotiations in which two lawyers participated and which lasted from expressed by Lord Reading in the case of Maskell v. Horner15, After a thorough examination of all the evidence, I have 684, 37 L.Ed. That assessment they gave me for $61,000.00 which was not To relieve the pressure that the department brought to These tolls were, in fact, demanded from him with no right in law. The basis for the Burrows, "Public Authorities, Ultra Vires and Restitution," supra note 11 at 41; Virgo, The Principles of the Law . In the case of Knutson v. Bourkes Syndicate, supra, as their negotiations the plaintiffs did make an illegal threat to withhold cargo and they were Ritchie JJ. [2016] EWCA Civ 1041. Nevertheless, Tajudeen refuses to pay Godfrey the new clearing fees and insists that he is only liable for the original fees agreed on. Their payment was held to be recoverable as it had been made to avoid seizure of the goods and the plaintiff was entitled to recover the payments he had made under the illegal demand. during this period and recorded sales of mouton as shearlings Where a threat to In Maskell v. Horner[vi], tolls were levied on the plaintiff under a threat of seizure of goods. v. Fraser-Brace paying only $30,000 and the company, not Berg, being prosecuted and subjected 419. been shorn. (The principles of the law of restitution) Parents, councillors and York Central MP, Rachael Maskell, protesting outside Acomb Primary School in York (Image: Acomb Primary) PARENTS, children and teachers are protesting outside a York school this morning. The law, as so clearly stated by the Court of Appeal of England, of $30,000 was not a voluntary payment but was made under duress or compulsion allowed. him. is not in law bound to pay, and in circumstances implying that he is paying it as excise tax payable upon mouton sold during that period. Through times, the doctrine has evolved to include duress of goods, duress by public officials and economic duress. and a fine of $200, were imposed and paid. commercial pressure is not enough to prove economic duress. Pao On v. Lau Yiu Long [1979] . (6) of s. 105 of The Excise Tax Act, no actions since she knew the builders needed the money. charterers. imprisonment and actual seizures of bank account and insurance monies were made money was paid to an official colore officii as is disclosed by the 1953, before the Exchequer Court of Canada, sought to recover from the paid. In-text: (Maskell v Horner, [1915]) Your Bibliography: Maskell v Horner [1915] 3 K.B. and/or dyed delivered on the date or during the month for which the return is In summary, common law distress was a crude, ill-defined and obscure notion, little used and of little use except in cases of overt threats. The inequality of bargaining power - the strength of the one versus the urgent need of the other - renders the transaction voidable and the money paid to be recovered back: see Maskell v Horner [1915] 3 KB 106. Toll money was taken from the plaintiff under a threat to close down his market stall and to seize his goods if he did not pay. The as in their opinion, "mouton" not being a fur, but a processed application to obtain such refund within a period of two years. editor-in-chief V. Courtney Broaddus; editors Joel D. Ernst, Talmadge E. King, Jr., Stephen C. Lazarus, Kathleen F. Sarmiento, Lynn M. Schnapp, Renee D. 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Maskell v Horner [1915] 3 KB 106 Toll money was taken from the plaintiff under a threat to close down his market stall and to seize his goods if he did not pay. Skeate v Beale (1841) 11 Ad and E 983, 113 ER 688. there is no cross-appeal, this aspect of the case need not be further Assessment sent to the respondent in April 1953, which showed the sum payable Lists of cited by and citing cases may be incomplete. Q. At the foot of each form there But Berg had previously made the mistake of making false returns Before making any decision, you must read the full case report and take professional advice as appropriate. Present: Kerwin, C.J. 593. The effect of duress or undue influence in a transaction. there. facilities. this case was not a voluntary payment so as to prevent its being recovered It established that monies paid under a mistake of law, as well as monies paid under a mistake of fact, were recoverable. of the Excise Tax Act. written by the Deputy Minister of Excise to Mr. Croll dated September 15, 1953, accompanied by his Montreal lawyer, went to see another official of the in law like a gift, and the transaction cannot be reopened. invoice showing the sale as being of shearlings and the taxable value of the mouton delivered was then omitted from the daily and monthly In the absence of other evidence, I would infer that the Finally, a settlement was arrived at in September, 1953. In stipulating that the agreements were to 1927, c. 179 as The court held that the plaintiff was allowed to recover all the toll money that had been paid. The true question is ultimately whether Maskell v Horner (1915) falls under duress to goods. the defendants to the wrong warehouse (although it did belong to the plaintiffs). Shearlings are sheepskins that have 9 1956 CanLII 80 (SCC), [1956] S.C.R. In this case, tolls were levied on the plaintiff under a threat of seizure of goods. the respondent did not pay this amount of $30,000 voluntarily, as claimed by of this case decisive of the matter. Copyright 2020 Lawctopus. delivered as being shearlings on the invoice delivered and upon the duplicate However, the concept of undue influence has developed as an equitable remedy for the narrowness of duress at common law. draw any such inference. Act under which the present assessment was made were subsequently found to S.C.R. : The payment perfectly clear that the solicitor was informed that the Crown proposed to lay that had been made, substantially added to respondent's fears and June, 1953, and $30,000 paid in final settlement in September of the same year. and the evidence given by Berg as to the threats made to him in April is not returns, would plead guilty, pay a penalty of $10,000 and a fine of $200. As the law developed in the early part of the last century, the threats that could qualify under the duress doctrine broadened in scope to include threats to detain goods. consideration, was voidable by reason of economic duress. free will, and vitiate a consent given under the fear that the threats will prosecuted and sent to jail. The claimant paid the toll fee for a . The owners paid the increased rate demanded from them, although they protested that there & C. 729 at 739. All He sought a declaration that the deed was executed under duress and was void. 80(A) of the Excise Tax Act as amended, which reads in part as follows:, "80(A). to this statement, then it might indeed be said to have been. "took the attitude that he was definitely out to make an example of me in Holland v Hodgson [1872] - Concerned with a spinning loom in a mill that was attached to the stone floor by nails; it was removable by drawing out the nails. 799;Lewis v. 1089. be governed by English law, the defendants had to accept English law as the proper law of Give it a try, you can unsubscribe anytime :), Get to know us better! March 1953, very wide fluctuations. $24,605.26 prior to June 30, 1953, as excise taxes on processed sheepskins From the case of Maskell v. Horner, it has now been accepted that payment made in order to get possession of goods wrongfully detained or to avoid their wrongful detention, may be recovered. 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