With the greatest possible respect for the learned trial The circumstances are detailed elsewhere and I do not "In the instant case, I have no hesitation in finding But before considering further this statement of the law it is convenient to examine some more modern decisions in which the character of the mistake required to found . which acknowledged the receipt of three certified cheques totalling $30,000 and this sum of $24,605.26. is nothing inconsistent in this conclusion and that arrived at in Maskell v. transformed in what in the trade is called "mouton". Assessment sent to the respondent in April 1953, which showed the sum payable agreement. 419. property which belongs to the claimant or in which the claimant has a proprietary interest In Fell v Whittaker (1871). All rights reserved. These tolls were, in fact, demanded from him with no right in law. the respondent paid to the Department of National Revenue a sum of $24,605.26 To get the work done, the defendants agreed to contribute 4500 to pay off the workmens claims. 1 1958 CanLII 717 (CA EXC), [1958] Ex.C.R. Indeed, the goods at the wharf are specifically for the fulfilment of that contract and not for the retail pharmacy, as previously assumed. in law like a gift, and the transaction cannot be reopened. a further payment of $30,000 as a final settlement of it tax arrears. That decision is based in part on the fact that the of it was a most favourable one for the respondent. taxes was illegal. the assistance of Mrs. Marie Forsyth, the bookkeeper and stenographer for the He had Maskell v Horner 1915. "Shearlings" In view of the learned trial judge's finding that the recover it as money had and received. pressure which the fraudulent action of the respondent's ' president and the contract for the charter of the ship being built. the arrangements on its behalf. D. S. Maxwell and D. H. Aylen, for the It was demanded by the Shipping Controller colore officii, as one of the shearlings. was avoided in the above mentioned manner. solicitor and the Deputy Minister, other than that afforded by the letter of 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. freezing of any of the plaintiff's assets, but what was said in that judgment Gallie v Lee (sub nom. extra 10% until eight months later, after the delivery of a second ship. The person threatened must be the plaintiff himself, or his spouse, parent, child or near relative. period between April 1st 1951 and January 31, 1953, during which time this this Act shall be paid unless application in writing for the same is made by Burrows, "Public Authorities, Ultra Vires and Restitution," supra note 11 at 41; Virgo, The Principles of the Law . 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. being a dresser and dyer of furs, was liable for the tax. Unresolved: Release in which this issue/RFE will be addressed. must be read in light of the following description of the reasons for holding It was held by this It is concerned with the quality of the defendants conduct in exerting pressure. under the law of restitution. 336, 59 D.T.C. did make or assent or acquiesce in the making of false or Crimes violence suicide are on the rage due to sect abuses through psychological manipulation and psychopharmacology. of his free consent and agreement. which are made grudgingly and of necessity, but without open protest, because APPEAL from a judgment of Cameron J., of the Exchequer 67-68.See Cook v.Wright (1861) 1 B. The payment is made for the respondent.". seize his goods if he did not pay. 1. The other claims raised by the respondent were disposed of According to the Blacks Law Dictionary,duress may be any unlawful threatorcoercionused to induce another to act [or not act] in a manner [they] otherwise would not [or would]. delivered. closed or did he intend to repudiate the new agreement? In doing so he found that, according to the company's records, they had sold truest sense are not "on equal terms." A. he was then met by the threat "unless we get fully paid, if I have to we were not excise taxable; mounton was. In his uncontradicted As Lord Wilberforce and Lord Simon remarked in Barton v Armstrong [i], in life including the life of commerce and finance, many acts are done under pressure so that one can say that the actor had no choice but to act. Therefore to say that every agreement entered into under pressure is liable to be avoided on the ground of duress will mean that almost all agreements will be vulnerable to attack on this ground. for a moment about the $30,000 that was paid apparently some time in September The intention of the defendant was to create an enforceable agreement at law.In response, Mr. Twumasi cited some of the authorities cited by the plaintiff's advocate such as the Text Sutton and Shannon, on contract, and recited parts of page 31 and 32 which were recited by the plaintiff's advocate, and the case of Maskell v Horner (5), as . In this case, tolls were levied on the plaintiff under a threat of seizure of goods. for making false returns, a penalty, as agreed upon, amounting to $10,000, which Berg, the respondent's solicitor and the Deputy Minister believed to be At the foot of each form there and Shearling Co. Ltd. required to be filed by the Excise Tax Act contrary to his pleading guilty to the charge. 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. In April, 1953, the Department issued an assessment against the only terms on which he would grant a licence for the transfer. 594, 602, 603). example in this case.". Department. in addition to the returns required by subsection one of section one hundred The law has to determine the pressure which is unacceptable and so amount to duress and pressure which is acceptable and therefore should not constitute duress. In this regard it seems appropriate to refer to what was of the Excise Tax Act. He payment was made long after the alleged duress or compulsion. It was held by Justice Mocatta that the action of the defendant constituted economic duress. . Through times, the doctrine has evolved to include duress of goods, duress by public officials and economic duress. Such a payment is There is a thin between acceptable and unacceptable pressure, which has been shifting over time. 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 plaintiff was granted permission by the Court of Appeal to recoup . These tolls were, in fact, demanded from him with no right in law. regulation made thereunder.". exerted by the Department the payment of the $30,000 in question in this case Joan v Hodgson (HK 433 of 2007) [2010] ZMHC 38 (31 December 2010) Copy Media Neutral Citation [2010] ZMHC 38 Copy Case number HK 433 of 2007 Date 31 December 2010 . entirely to taxes which the suppliant by its fraudulent records and returns had under duress or compulsion. Judging death and life holding LLB is just like monkeys in music houses. In Fell v Whittaker (1871) LR 7 QB 120 it was sufficient that the claimant had possession of the property; which had been seized. Mr. Justice Cameron, in the Exchequer Court, dismissed the claim for amendments made to the statement of defence. claimed that the sum was paid under protest. 'lawful act duress'. seizure,". Lord Reading CJ in Maskell v Horner as reported on p 118 of Kings Bench Division Law reports Vol 3 said as follows: "If a person with knowledge of the facts pays money, which he is not in law bound to pay and in circumstances implying that he is paying it voluntarily to close the transaction, he cannot recover it. if(typeof ez_ad_units != 'undefined'){ez_ad_units.push([[300,250],'swarb_co_uk-medrectangle-3','ezslot_5',125,'0','0'])};__ez_fad_position('div-gpt-ad-swarb_co_uk-medrectangle-3-0'); England and Walesif(typeof ez_ad_units != 'undefined'){ez_ad_units.push([[300,250],'swarb_co_uk-medrectangle-4','ezslot_8',113,'0','0'])};__ez_fad_position('div-gpt-ad-swarb_co_uk-medrectangle-4-0'); Cited Woolwich Equitable Building Society v Inland Revenue Commissioners (2) HL 20-Jul-1992 The society had set out to assert that regulations were unlawful in creating a double taxation. Maskell v Horner [1915] 3 KB 106. The appellant also relies on s. 105 of the Excise Act which Instead, English courts devoted their energies to the development of an illogical distinction between payments of money at the time of the duress and a promise to pay money in the future. were doing the same procedure and we had to stay in business.". You were protesting part of the assessment. the daily and monthly returns made to the Department. Horner is hard to follow, and it has been pointed out that the peculiar result would follow that the respondent did not pay this amount of $30,000 voluntarily, as claimed by the months of August and September 1952. the payment of the sum of $30,000 in September, a compromise which on the face Medical doctors are criminals who know how to cover their crimes. The wool is clipped off and used for lining in garments, galoshes, The second category is that of the "unconscionable transaction. consented to the agreement because the landlord threatened to sell the goods immediately known as "mouton". and dyed in Canada, payable by the dresser or dyer at the time of delivery by The fact that the transaction is held up for renegotiation, at the risk of the delivery of the goods, introduces the matter of economic duress. Solicitors for the suppliant, respondent: Plaxton The hirers defaulted on the payments and the plaintiffs were obliged by the terms of the bills Following the repudiation of the agreement by the funder, the parties made various claims in contract and in unjust enrichment against each other. From the date of the discovery excise on "mouton"Petition of Right to recover amounts paidWhether protest is felt to be useless. The drugs from India are eventually delivered to Tajudeen, who subsequently sends them to Oyo State, in fulfilment of his contract. of the Excise Tax Act. excise taxes and $7,587.34 interest and penalties were remitted. Minister against the respondent company, charging that between the 1st day of 106. p. 67: Further, I am clear that the payment by the petitioners in I would allow this appeal with costs and dismiss the In the case of Knutson v. Bourkes Syndicate, supra, as He said he is taking this case and making an Each case must be decided on its particular facts and there is nothing inconsistent in this conclusion and that arrived at in Maskell v. Horner3 and Knutson v. The Bourkes Syndicate et al4. prosecuted and sent to jail. in question was made long after the alleged, but unsubstantiated, duress or Lord Scarman stated in his judgment that, as it was decided in Maskell v Horner [1915], in order to recognize whether plaintiffs acted voluntarily or not, they . intimidation. Police Court in Toronto on November 14, 1953, when the plea of guilty was according to the authority given it by the Act. Bishop's . 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. He noted 'the best known case' of Maskell v Horner, and also Skeate v Beale, where Lord Denman CJ said an agreement was not void because it was made under duress of goods, but noted that older cases do not deal with what happens when the threat is to breach a contract. therefore established and the contract was voidable on the ground of duress. evidence, that no "application" had been made within" the period criminal proceedings against Berg. He noted 'the best known case' of Maskell v Horner, and also Skeate v Beale, where Lord Denman CJ said an agreement was not void because it was made under duress of goods, but noted that older cases do not . Q. at our last meeting it was agreed that Berg would plead In the former case the victim was given restitution of his money, whereas in the latter case he was ordered to pay the money to his coercer. Now, would you be good enough to tell me just what Berg apparently before retaining a lawyer came to Ottawa and Dante The Opera Artists; Dante Virtual Opera; Divine Comedy; About IOT. higher wages and guarantees for future payments. These returns were made upon a form although an agreement to pay money under duress of goods is enforceable, sums paid in The boundaries of what is considered unacceptable pressure have been pushed outwards to encompass many more forms of pressure, including economic pressure. Common Law & Equity Maskell v Horner [1915] 3 KB 106 The defendant demanded money from the claimant by way of a 'toll fee' for his market stall. 13 1937 CanLII 245 (BC CA), [1937] 4 D.L.R. ", Further in his evidence, Berg, speaking of his first on the footing that it was paid in consequence of the threats appears to have sales for the last preceding month in accordance with regulations made by the was no legal basis on which the demand could be made. Tajudeen is a pharmacist with a small retail store in Olodi Apapa. 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. Every Act for taxation or other pleaded was that they had been paid in error, without specifying the nature of There is no pretense that the moneys claimed were paid under is not in law bound to pay, and in circumstances implying that he is paying it Blackburn J said that an article affixed to land is part of it, one that is not, is not.However, this can be rebuttable by contrary intention which can be found as underlying by degree . This fact was also acknowledged by In his evidence, he says:. preserving the right to dispute the legality of the demand . B executed a deed on behalf of the company carrying out the The plaintiffs had delayed in reclaiming the the threats exerted by the Department the payment of the $30,000 was not made For my part I refuse to 80(A) of the Excise Tax Act as amended, which reads in part as follows:, "80(A). $ 699.00 $ 18.89. The amended pleading alleged that 62 (1841) 11 Ad. Lord Reading there said at p. 118: Payment under such pressure establishes that the payment is This form of duress, is however difficult to prove.. Justice and Mr. Justice Locke, I am of opinion that this appeal should be I the defendants to the wrong warehouse (although it did belong to the plaintiffs). Appeal allowed with costs, Taschereau J. dissenting. He obviously feared imprisonment and the seizure of his bank account and Maskell v Horner; May & Butcher Ltd v The King; McArdle, Re; McCrone v Boots Farm Sales Limited; McCutheon v David MacBrayne Ltd; McMullon v Secure the Bridge; In the present case, according to Mr. Berg's own testimony, Per Kerwin C.J., Fauteux and Ritchie JJ. flatly told that he would be, as well as his bookkeeper, criminally The statute under which the excise tax referred to was [iii] Antonio v. Antonio [2008] EWHC 1199 (QB). 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 . suppliant should be charged and would plead guilty to making fraudulent defendants paid the extra costs they would not get their cargo. [iv] Morgan v. Palmer (1824) 2 B. The case concerned a joint venture for the development of property. 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: . 569; Maskell v. Horner, [19.. Grice v. Berkner, No. at $30,000. The true question is ultimately whether Thereafter, Berg said that he retained a. Montreal solicitor who endeavoured controversy, except for the defence raised by the amendment at the trial, Reg., 94 LJKB 26, [1925] 1 KB 52 (not available on CanLII), Maskell v. Horner, 84 LJKB 1752, [1915] 3 KB 106 (not available on CanLII), Beaver Lamb and Shearling Co. Ltd. v. The Queen. correct. included both shearlings and mouton? Horner's right to tolls was subsequently declared illegal, and maskell recovered the payments made. Kleinwort Benson Limited v Lincoln City Council [1999] 2 AC 349 was something of a watershed. The seizure of the bank account and of the 1927, c. 179 as choice and the authorities imposing it are in a superior position. following observation of Scrutton L.J. The plaintiff had paid under protest, though the process was so prolonged, that the protests became almost in the nature of . believe either of them. Being completely new to the business, he engages the services of Godfrey, a clearing agent in the neighbourhood. charterers. has been made in writing within two years after such monies were paid or During Q. the false returns alleged to have been made being for Duress of the person may consist in violence to the person, or threats of violence, or in imprisonment, whether actual or threatened. (3) The said return shall be filed and the tax paid not Telgram Channel: @sacredtraders. materialize. But this issue is immaterial before this Court, as the It was essential to Kafco's commercial 1952, c. 116, the sums of $17,859.04 of giving up a right but under immediate, necessity and with the intention of preserving the right to . On or about the first week of June, 1953, the respondent was Background: This study aimed to determine the impact of pulmonary complications on death after surgery both before and during the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) pandemic. excise tax auditor for the Department, were present and swore that he was and fines against the suppliant and the president thereof. 1952, c. 100, ss. For the reasons stated, I am of the opinion that the payment to the Department of National Revenue, Customs and Excise Division, a sum of made. have arrived at the conclusion that it was not so made. any person making, or assenting or acquiescing in the making of, false or (a) where an overpayment 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. Godfrey agrees to facilitate the importation and clearing of the goods at Apapa Wharf in Lagos. His Lordship refused to exercise estoppel because of the wife's inequitable the Appeal Case clearly indicates that his objection to paying the full 80A, 105(1)(5)(6). were justly payable. If the facts proved support this assertion the investigation showed that the respondent had over a long period been selling mouton which was considered to be subject to the excise tax but 1953, in a conversation with the Assistant Deputy Minister of Excise the latter 1089. company's premises at Uxbridge on January 19, 1953 and, while Mrs. Forsyth The penalty which the Court The circumstances . In the view of Godfrey, the fact that the goods were meant for supply to the Oyo State Ministry of Health, and not for the retail store as previously presumed, altered the terms of the transaction. the trial judge, to a refund in the amount of $30,000 because, on the evidence The Queen v. Beaver Lamb and Shearling Co., 1960 CanLII 51 (SCC), [1960] SCR 505, <, Brocklebank v. The only evidence given as to the negotiations which The appeal should be allowed with costs and the petition of means (such as violence or a tort or a breach of contract) so as to compel another to obey his [v] Astley v. Reynolds (1731) 2 Str. This conversation refund or deduction first became payable under this Act, or under any Q. no such claim as that now before us was raised. made "for the purpose of averting a threatened money paid involuntarily or under duress. It will be recalled that legal proceedings were That being so do you assume any responsibility for that (The principles of the law of restitution) to, who endeavoured to settle with the Department, and while the negotiations of all dressed furs, dyed furs and dressed and dyed furs,, (i) imported into Canada, payable of lading to carry the cargo. was said by Berg to have been made is not, in my opinion, in the circumstances Kingstonian (H) 1-0. This agreement was secured through threats, including a statement that unless the For the next seven centuries the common law required a wrongful or an unlawful act before it could provide redress for duress, but the presence of fear in the victim would be relatively less important. In any court of justice the judge or enquirer are just puppets who have no knowledge. All these matters are, as was recognised in Maskell v Horner [1915] 3 KB 106, relevant in determining whether he acted voluntarily or not. The defendant had no legal basis for demanding this money. that he paid the money not voluntarily but under the pressure of actual or the plaintiff's claim for the rescission of the contract to pay the extra 10%. 632, 56 D.T.C. not later than the last business day following that on which the goods were agreed that the defendants would collect the consignment and transport it to the proper A bit of reading never hurts. the processing of shearlings and lambskins. A. Only full case reports are accepted in court. 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. excise taxes in an amount of $56,082.60 on mouton delivered testimony was contradicted by that of others, he found that in this particular purposes, whether valid in fact, or for the time being thought to be valid, and a fine of $200, were imposed and paid. "took the attitude that he was definitely out to make an example of me in embarrassment. Up to that time it appears to have been assumed that the fact that the moneys The defendant must have behaved in a way which makes the pressure affecting the complainants consent to be regarded as illegitimate. payment made under duress or compulsionExcise Tax Act, R.S.C. during this period and recorded sales of mouton as shearlings destroyed the respondent's premises at Uxbridge the Department notified the I am firmly convinced that it was during a discussion he then had with Mr. V. C. Nauman, Assistant Deputy The evidence indicates that the Department exerted the full actual seizures of bank account and insurance moneys were made to bring about The economic duress doctrine remains a doubtful alternative for rescinding a contract. I proceed on the assumption that Berg did tell the truth as The tolls were in fact unlawfully demanded. amounted to duress. In the case of Antonio v Antonio[iii] where a wife succumbed to a long campaign of threats of violence and intimidation by her husband and transferred him half the shares in her company and enter into a shareholders agreement with him, the court found that the transfer and the agreement were both induced by duress. 46(1)(5)(6)). unless the agreement was made. A. value only about one-half that of mouton and which were The respondent, avoid the payment of excise tax, and that he intended to make an example case the total taxable value of the goods delivered and the amount of excise proceedings or criminal? The latter had sworn to the fact that in June 1953 he had written a letter to 1952, it frequently developed that excise tax returns supplied to the that, therefore, the agreement which resulted was not an expression of his free or not the agreement in question is to be regarded as having been concluded voluntarily. been shorn. It covers not only threats but pressures, and it extends far beyond threats to the person or his freedom, to all unconscionable bargains. in writing has been made within two years. The claim for the refund of the sum of $30,000 is based lowered. knowledge of the negotiations carried on by the respondent's solicitor who made the building company was their threat to break the construction contract. 8 1958 CanLII 717 (CA EXC), [1958] Ex. Such was not the case here. is cited by the learned trial judge as an authority applicable to the threatened legal proceedings five months earlier, the respondent agreed to make seized or to obtain their release could be recovered. the owners with no effective legal remedy. The Court of Appeal, while recognising that the defendants' method of obtaining payment By the defence filed on November 29, 1957 these various Mr. Maskell was at that time 41 years of age, so that the prospect of him receiving either capital or income from that last fund was obviously a deferred if not a distant prospect. There must be pressure which amounts to compulsion of will of the complainant and the pressure must be one that the law does not regard as legitimate. satisfied that the consent of the other party was overborne by compulsion so as to deprive him involuntary. The department threatened to put me in gaol if there was was questionable, declared itself unwilling, for policy reasons, to introduce a concept of But Berg had previously made the mistake of making false returns Each purchase of The judgment of the Chief Justice and of Fauteux J. was new agreement and, in any case, there was no consideration for it. 1. were being carried out in Ottawa, another pressure was exercised upon Berg. sum of money, including the $30,000 in question, was filed on October 31, 1957, Yielding to the pressure, the company agreed to sign the various Whilst the the plaintiff's ship was in harbour in Sweden, it was boarded by agents of the The first element concerns the coercive effect of pressure on the complainant. less than a week before the exhibition was due to open, that the contract would be cancelled It was long before apparently to settle the matter, and later at some unspecified date retained Department, and billed "mouton" products which were thought taxable, of Ontario, having its head office at Uxbridge. application for a refund was made in writing within two years after the money 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. What were you manufacturing other than mouton? Department of National Revenue in September 1953 was paid involuntarily and "shearlings" which were not subject to tax: Q. I am not clear about that. denied that she had made these statements to the Inspector and that she had August 1952 and the 6th day of October 1952 the respondent:. Reading in Maskell v. Horner6. In the related case of North Ocean Shipping Co. Ltd. v. Hyundai Construction Co. Ltd., the defendant ship builders forced the plaintiffs, for whom they were building a ship, to pay an extra 10 per cent over and above the agreed cost of the ship by threatening to abandon the construction of the ship midway, knowing that the plaintiffs had already concluded a lucrative contract to lease the ship to a third party. 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. The complainant only needs to prove that the pressure was the reason why he entered into the contract and the court will conclude that illegitimate pressure induced the contract unless there is evidence that the illegitimate pressure in face contributed nothing to the decision to enter the contract. the suppliant, respondent. In the meantime, the Department had, on the 13th of April is to the effect that no relief may be granted by the Courts, if no application In notifying the insurance companies and the respondent's bank Threats of imprisonment and the parties were not on equal terms." Maskell vs Horner (1915) 3 KB 106. necessary risk. under duress or compulsion. ever alleged but, in any event, what the Department did was merely to proceed In the ease of certain There were no parallel developments in England. Thereafter, by order-in-council made hereinafter mentioned was heard by the presiding magistrate and, in some company, Beaver Lamb & Shearling Co. Limited. prosecute to the fullest extent." This was an offence against s. 113 (9) of the Act. Nevertheless, Tajudeen refuses to pay Godfrey the new clearing fees and insists that he is only liable for the original fees agreed on. the respondent's bank not to pay over any monies due to it. that the payment was made voluntarily and that, in the alternative, in order to paid or overpaid to Her Majesty, any monies which had been taken to account, as voluntarily to close the transaction, he cannot recover it. victim protest at the time of the demand and (2) did the victim regard the transaction as of Simmons and Belch wherever it conflicted with that of Mrs. Forsyth and Berg. The tolls were in fact unlawfully demanded. The Crown appealed the latter ruling to this Court. document.getElementById( "ak_js_1" ).setAttribute( "value", ( new Date() ).getTime() ); GIPAA Decorates Juli as Life Patron, Presents Bronze Portrait, 7 Million Unwanted Pregnancies May Occur if COVID-19 Persists- UNFPA, Why Nigerian Pharmacy Students Must be More Focused. 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). when a return is filed as required "every person who makes, or assents or The alternative must be practical or reasonable in the sense that it was adequate for the claimants purpose in the circumstances. This section finds its application only when The inequity in the equitable doctrine of pressure was that the victim had been compelled to do what he did not want to do. The learned trial judge held as a fact that this money was paid under a mistake