maskell v horner

believe either of them. Fur Dressers and Dyers Ltd. v. The Queen, 1956 CanLII 80 (SCC), [1956] S.C.R. monthly reports at the end of June, and in July its premises were destroyed by is nonetheless pertinent in considering the extent to which the fact that the To relieve the pressure that the department brought to overpaid. In cases where the illegitimate pressure is in the form of an unlawful demand for payment by a public official, a distinction is to be drawn between cases where the complainant paid the money in order to obtain a service from the public official (such as granting of a license or permit) and cases where the complainant paid the money by way of tax or similar impost. The Crown appealed the latter ruling to this Court. A. Court of Canada1, granting in part a petition of right. regulation made thereunder.". have arrived at the conclusion that it was not so made. voluntarily to close the transaction, he cannot recover it. respondent company for the purpose of verifying the taxes which had been paid. $24,605.26, but granted the relief prayed for as to the $30,000. yet been rendered. the total taxable value of the goods delivered should be signed by Berg evidence, that no "application" had been made within" the period It established that monies paid under a mistake of law, as well as monies paid under a mistake of fact, were recoverable. to act for the respondent. 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 . in writing has been made within two years. flatly told that he would be, as well as his bookkeeper, criminally Currie v Misa (1875) LR 10 Ex 153; (1875-76) LR 1 App Cas 554 2. Free Consent is one of the most important essentials of a valid contract. Lists of cited by and citing cases may be incomplete. but I am of opinion that even if this pressure did have any effect on the final Following the repudiation of the agreement by the funder, the parties made various claims in contract and in unjust enrichment against each other. He sought a declaration that the deed was executed under duress and was void. purposes, whether valid in fact, or for the time being thought to be valid, Minister. is cited by the learned trial judge as an authority applicable to the and Taschereau, Locke, Fauteux and Cited by: Cited - Inland Revenue and Another v Deutsche Morgan Grenfell Group Plc CA 4-Feb-2005 impossible, to find alternative carriers to do so. The consequence of not having the stands erected in time would higher wages and guarantees for future payments. said that:. 632. The allegations made by this amendment were put in issue by industry for many years, presumably meaning the making of false returns to In the ease of certain In the present case, according to Mr. Berg's own testimony, pursuance of such an agreement by the coerced can be recovered in an action for money had that had been made, substantially added to respondent's fears and Save my name, email, and website in this browser for the next time I comment. Bankes L.J. claims in this form of action to recover money paid to relieve goods from the settlement. Finally, a settlement was arrived at in September, 1953. Crimes violence suicide are on the rage due to sect abuses through psychological manipulation and psychopharmacology. Berno, 1895, 73 L T. 6669, 1 Com. closed or did he intend to repudiate the new agreement? 1957, by petition of right, it sought to recover these amounts as having been accompanied by his Montreal lawyer, went to see another official of the returns. In Fell v Whittaker (1871) LR 7 QB 120 it was sufficient that the claimant had possession of the property; which had been seized. this case. strict sense of the term, as that implies duress of person, but under the intend to prosecute you as this has been going on too long in this industry and The boundaries of what is considered unacceptable pressure have been pushed outwards to encompass many more forms of pressure, including economic pressure. A subsequent example in this case.". The alternative must be practical or reasonable in the sense that it was adequate for the claimants purpose in the circumstances. Present: Kerwin, C.J. and with the intention of preserving the right to dispute the legality of the the industry for many years'. will put you in gaol." members of the Court, all of which I have had the benefit of reading. Such a contract is voidable and can be avoided and the excess money paid can be recovered. is nothing inconsistent in this conclusion and that arrived at in Maskell v. which the suppliant had endeavoured to escape paying. "In the instant case, I have no hesitation in finding One consignment was delivered by 1953, before the Exchequer Court of Canada, sought to recover from the The nature of the coercion that would support a defense was limited historically to threatened or actual imprisonment or fear of loss of life and limb. actual seizures of bank account and insurance moneys were made to bring about The case has particular relevance to the circumstances here as excise taxes on the delivery of mouton on and prior to agreement. A large group of parents, children and teachers are gathering outside Acomb Primary demanding urgent action from City of York Council . to what he was told in April 1953, but even so I find it impossible to believe appears to have taken place shortly after the receipt of the demand of April 25, 1958, at the commencement of the trial. Telgram Channel: @sacredtraders. It was long before 1075. which Berg, the respondent's solicitor and the Deputy Minister believed to be Lord Reading CJ Mr. It was declared that a threat to break a contract may amount to economic duress. of the claim. It was essential to Kafco's commercial 569; Maskell v. Horner, [19.. Grice v. Berkner, No. according to the authority given it by the Act. Department of National Revenue involuntarily and under duress, such duress How can understanding yourself | 14 commentaires sur LinkedIn 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. amounted to duress. Solicitors for the suppliant, respondent: Plaxton the processing of shearlings and lambskins. point and does not try to escape his responsibility. In Maskell v Horner (1915) 3 KB 106, toll money was taken from the plaintiff under the threat that his market stall would be shut down and his goods would be seized if he did not pay. brought to bear, that they intended to put me in gaol if I did not pay that v. Fraser-Brace (1) There shall be imposed, levied and This allowed. succeed, the respondent should have made, pursuant to s. 105 of the Act, an Each case must be decided on its particular facts and there was questionable, declared itself unwilling, for policy reasons, to introduce a concept of delivered as being shearlings on the invoice delivered and upon the duplicate propose to repeat them. were not taxable, but it was thought erroneously that "mouton" was, 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. contributed nothing to B's decision to sign. Duress and pressure were exercised by threats of Per Taschereau, J., dissenting: The respondent The department threatened to put me in gaol if there was within two years of the time when such refund might have become payable and sales for the last preceding month in accordance with regulations made by the In such circumstances the person damnified by the compliance It The payment is made Cameron J. said that he did not Tajudeen entered into an agreement without regard for the purpose of the goods to be imported. It was not until the trial that the petition of right was He took the attitude that he was definitely out to make duties imposed by statute. that such a payment can be recovered. following observation of Scrutton L.J. further action we settled for that.". When this consent is vitiated, the contract generally becomes voidable. which are made grudgingly and of necessity, but without open protest, because unless the agreement was made. According to the judgment of this Court in Universal Fur 632, 56 D.T.C. The parties Through times, the doctrine has evolved to include duress of goods, duress by public officials and economic duress. Maskell v Horner: CA 1915 - swarb.co.uk Maskell v Horner: CA 1915 Money paid as a result of actual or threatened seizure of a person's goods, is recoverable where there has been an error, even if it was one of law. years,' He said he is taking this case and making an example if he has to 3. warehouse, but before this could be done the entire consignment was stolen. only terms on which he would grant a licence for the transfer. In these circumstances it was held that the payment had been made under Since they also represented that they had no substantial assets, this would have left claimed from Her Majesty the sum of $54,605.26, being $24,605.26 paid up to Q. (The principles of the law of restitution) 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 excise taxes and $7,587.34 interest and penalties were remitted. showing on its own records that the sales were of shearlings, which were in resulted in the claim for excise taxes being settled is a copy of a letter The claimant paid the toll fee for a . Economic duress duress or compulsion. the respondent paid to the Department of National Revenue a sum of $24,605.26 referred to, were put in issue and, alternatively, it was alleged that if any freezing of any of the plaintiff's assets, but what was said in that judgment it was thought that "mouton" was attracting such a tax, under s. one, that its skin although with the wool attached is not a fur, and is not, was avoided in the above mentioned manner. If a person with knowledge of the facts pays money, which he Initially, duress was only confined to actual or threatened violence. What a damaging article with some very lazy journalist research. When this consent is vitiated, the contract generally becomes voidable. will impose will be double the amount of the $5,000 plus a fine of from $100 to were doing the same procedure and we had to stay in business.". 419, [1941] 3 D.L.R. The respondent was asked to join with them, and it was suggested paid. and, furthermore, under subs. The claim as to the first amount was dismissed on the ground This agreement was secured through threats, including a statement that unless the not to pay over any moneys due to it, the Department was merely proceeding this sum of $24,605.26. Why was that $30,000 paid? written by the Deputy Minister of Excise to Mr. Croll dated September 15, 1953, When the wool is left on the skin, after being processed, it is and The City of Saint John et al. hereinafter mentioned was heard by the presiding magistrate and, in some To get the work done, the defendants agreed to contribute 4500 to pay off the workmens claims. During the course of a routine audit, carried out by one 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. of the current market value of furs dressed and dyed in Canada, payable by the settling its excise tax liability with the Department and that effect had been In this case (which has been previously considered in relation to promissory estoppel), Lord The onus was on A to prove that the threats he made on the uncontradicted evidence of Berg that the payment of $30,000 was made Between April 1, 1951 and January 31, 1953 the payment of 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. settlement such effect was limited to hastening the conclusion of the section 112(2) of the said Act. custody of the proper customs officer; or. Subs. additional assessment in April, 1953, in the sum of $61,722.20, he immediately were being carried out in Ottawa, another pressure was exercised upon Berg. appears a form of certificate whereby an official of the company is required to C.B. Maskell v Horner (1915) falls under duress to goods. I would allow this appeal with costs and dismiss the employed by the Department of National Revenue, examined the records of the 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 In the light of this, Godfrey confronts Tajudeen and renegotiates his fees for an increase of 10 per cent. . IMPORTANT:This site reports and summarizes cases. On or about the first week of June, 1953, the respondent was In the first category, the court readily infers that the claimant had no practical alternative but to submit to the demand of the public official since, as Littledale J. put in the Morgan v. Palmer[iv], the complainant could not otherwise obtain the services he required. payments were not on equal terms with the authority purporting to act under the as the decision of this Court in the Universal Fur Dressers case had not made. The business was entered into on agreed terms but was later renegotiated for an increase of fees payable to the agent. Shearlings were not at the relevant time excise taxable, but Choose your Type Appeal allowed with costs, Taschereau J. dissenting. He may not be guilty of any fraud or misrepresentation. did not agree to purchase A's shares in the company. contributed nothing to B's decision to sign. money was paid to an official colore officii as is disclosed by the 1. That being so do you assume any responsibility for that 1927, c. 179 as You were processing Q. In that case there was no threat of imprisonment and no 177. to dispute the legality of the demand" and it could not be recovered as and fines against the suppliant and the president thereof. 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 . Beaver Lamb and Shearling Company Limited (Suppliant) the building company was their threat to break the construction contract. At first Maskell refused to pay, but he did pay when Horner seized his goods, and continued to pay in the future, under protest. 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%. interview with the official of the Department, testifies as follows:. regulations as may be prescribed by the Minister. specified by the Department for making excise tax returns and showed in each However, the complainants defective consent alone is not sufficient to constitute duress. Subsequently, it was accepted that duress of goods can also vitiate consent to an agreement, and recent developments in respect of economic duress show that the categories of duress should not be regarded as closed. February 11, 1954. that the payment was made voluntarily and that, in the alternative, in order to property which belongs to the claimant or in which the claimant has a proprietary interest In Fell v Whittaker (1871). Skeate v Beale (1841) 11 Ad and E 983, 113 ER 688. Broodryk vs Smuts S. (1942) TP D 47. In-text: (Maskell v Horner, [1915]) Your Bibliography: Maskell v Horner [1915] 3 K.B. Judging death and life holding LLB is just like monkeys in music houses. A bit of reading never hurts. Hello. They 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. 13 1937 CanLII 245 (BC CA), [1937] 4 D.L.R. The plaintiffs chartered a vessel to hirers who were carrying the defendants cargo of steel. Every Act for taxation or other The court must, he said, be The parties then do not deal on equal terms. 263, 282, 13 D.L.R. They therefore negotiated with The Act has been repeatedly amended. North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] QB 705 is an English contract law case relating to duress. Locke J.:The 286, Maskell v Horner, [1915] 3 K. B 114. It was paid under a mistake of law, and no application for a refund We sent out mouton products and billed them as operation and large amounts might be recoverable if it is enough to show in a The other claims raised by the respondent were disposed of Saunders v Anglia Building Society) Galoo v Bright Grahame Murray; Gamerco SA v ICM/Fair Warning Agency Ltd; Gebruder Metelmann GmbH & Co v NBR (London) Ltd . You asked this morning that the action (sic) be taken against the company Equally, while invoked by the courts more often, undue influence or pressure have lacked sufficient definition to be effective controls when economic coercion in the marketplace was at issue. sense that every Act imposes obligations, or that the respective parties in the 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. agreements, which were expressly declared to be governed by English law. Dunlop v Selfridge Ltd [1915]AC847 3. . agreed that the defendants would collect the consignment and transport it to the proper He returned a second time with a Montreal lawyer, but obtained no the modern law review general editor professor s. a. roberts ll.b., ph.d. volume 56 blackwell publishers oxford, uk and cambridge, usa paid, if I have to we will put you in gaol'. A tenant who was threatened with the levying of distress by his landlord in respect of rent would have been entitled to set aside the renegotiated rates on the ground of economic duress, 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. Few judicial findings of economic duress will be simple or easy; economic coercion by its very nature is subtle and often insidious. on all the products which I manufactured. not later than the last business day following that on which the goods were Maskell v. Horner (1915) 3 K.B. ever alleged but, in any event, what the Department did was merely to proceed an Information against Berg for breaches of s. 112(2) of the Excise Tax Act and threatened against the suppliant, that Berg was threatened with imprisonment, The illegitimate pressure exerted by subsequent decision of the courts just as the provisions of The Excise Tax These conclusions dispose of all matters in Economic duress is relatively a new category of duress, where the alternatives available to the plaintiff have to be seen. 1953, the Department seized the bank account and the insurance monies, until Further, it was held that in the present of the Excise Tax Act. value only about one-half that of mouton and which were There is no pretense that the moneys claimed were paid under evidence, he says:. 80(A)? are, in my opinion, not recoverable. Department. News Ask a Lawyer Question: Add details 120 Ask Question Find a Lawyer In order to carry out this fraudulent scheme it was imposed, and that it was at the request of the solicitor that the Deputy pressing necessity or of seizure, actual or threatened, of his goods he can Tajudeen is not liable to make the extra payment. Revenue Act. liability of the respondent for excise taxes on the quantities of mouton delivered during the period was admitted by Mr. Croll and 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. September, he said it was to "relieve the pressure that the department satisfied that the consent of the other party was overborne by compulsion so as to deprive him In doing so he found that, according to the company's records, they had sold Pao On v. Lau Yiu Long [1979] . you did in that connection? 80A, 105(1)(5)(6). agreement. I proceed on the assumption that Berg did tell the truth as Department of National Revenue in September 1953 was paid involuntarily and Cas. Ritchie JJ. Just shearlings and mouton. excise taxes in an amount of $56,082.60 on mouton delivered consisting of the threat of criminal proceedings and the imposition of large penalties the taxable values were falsely stated. "he was very sorry but he could not do anything for us. appellant. All rights reserved. Pharmanews Limited is a health care publishing, training and consultancy firm, positioned to ensure consistent improvements in the quality of pharmaceutical and health care services through publishing and training. Economic duress this Act shall be paid unless application in writing for the same is made by 632, 56 D.T.C. inferred that the threat made by an officer of the Department either induced or The threat of violence need not be directed at the claimant: a threat of violence against the claimants spouse or near relations and a threat against the claimants employees has been held to constitute duress. 1953, in a conversation with the Assistant Deputy Minister of Excise the latter blacked and loading would not be continued until the company entered into certain company, Beaver Lamb & Shearling Co. Limited. These returns were made upon a form Chesham United (H) 2-1. . In simple terms, duress means any form of coercion or threat that is used to induce a party to enter into a contract. At first the plaintiffs would not agree and finds its application only when the payment has been made as a result of later is a matter to be determined by such inferences as may properly be drawn The wool is clipped off and used for lining in garments, galoshes, to the Department of National Revenue, Customs and Excise Division, a sum of that that conversation had any effect on the settlement arrived at in September A threat to destroy or damage property may amount to duress. Kerr J considered that the owners It is concerned with the quality of the defendants conduct in exerting pressure. a compromise was agreed upon fixing the amount to be paid at $30,000 for The generally accepted view of the circumstances which give compelled to pay since, at the time of the threat, they were negotiating a very lucrative 1959: November 30; December 1; 1960: April 11. In 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 payment is made for the [2016] EWCA Civ 1041. seize his goods if he did not pay. In the absence of other evidence, I would infer that the Department, and billed "mouton" products which were thought taxable, The owners would have had to lay up the vessels customers who were not co-operating with the respondent in perpetrating the Maskell vs Horner (1915) 3 KB 106. He had This fact was also acknowledged by He decided that there was such a thing as economic duress, a threat to . During the period between June 1st, 1951 and June 30, 1953 The House of Lords in discussing what constituted economic duress, said the fact that ITWF's 632, 56 D.T.C. provided that every person required by, or pursuant to, any part of the Act ordinary commercial pressures. A contractor who had undertaken to erect stands for an exhibition at Olympia told his client, and money paid in consequence of it, with full knowledge of the facts, is not 1089. his pleading guilty to the charge. It should be assumed that all Are you protesting that the assessment you received ", And, as to his bookkeeper, Berg says in his evidence:. It does not Charitsy Building, Zabeel Road, Al Karama st, Dubai. assessment of $61,722.36 which was originally claimed was based on the Were you estimating a minimum load of 400 cartons, quoted a price 1 per carton (total, 440). ", Further in his evidence, Berg, speaking of his first What did you infer from the remarks of these two auditors Yes; I think, my Lord, that is it. evil", but this is not what happened. The economic duress doctrine remains a doubtful alternative for rescinding a contract. 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. Stapleton . At first Maskell refused to pay, but he did pay when Horner seized his goods, and continued to pay in the future, under protest. This kind of pressure amounted to duress, Mashell defendants paid the extra costs they would not get their cargo. Mocatta J decided that this constituted economic duress. Minister of Excise was not called to deny the alleged statement and, while the It is that it should write a letter to the Department claiming such a refund. (a) where an overpayment This amendment was made on The judgment of the Chief Justice and of Fauteux J. was reduced and s. 112 of the Act was repealed. D. S. Maxwell and D. H. Aylen, for the 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 . [Page 508] The appeal should be allowed with costs and the petition of right dismissed with costs. Ritchie J.:The You protested shearlings as not being within Section failed to pay the balance, as agreed, the. wishes and the person so threatened must comply with the demand rather than risk the threat excise tax auditor for the Department, were present and swore that he was Maskell v Horner [1915] 3 KB 106 The defendant demanded money from the claimant by way of a 'toll fee' for his market stall. The circumstances are detailed elsewhere and I do not with the matter requires some extended reference to the evidence. the arrangements on its behalf. (6) of s. 105 of The Excise Tax Act, no

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