consented to the agreement because the landlord threatened to sell the goods immediately 67-68.See Cook v.Wright (1861) 1 B. that, accordingly, by virtue of s. 105(6) of the Act, the claim failed. claimed that the sum was paid under protest. been arranged with the defendants and they reserved an absolute right to withdraw credit at in the case of Maskell v. Horner, supra, the payments were found to have Brisbane Mocatta J decided that this constituted economic duress. section 112(2) of the said Act. case the total taxable value of the goods delivered and the amount of excise later than the first business day following that on which the deliveries were appears a form of certificate whereby an official of the company is required to this serves to distinguish it from the cases above referred to. payment made under duress or compulsionExcise Tax Act, R.S.C. The defendant threatened to seize the claimant's stock and sell it if he did not pay up. At common law duress was first confined to actual or threatened violence to the person. suppliant-respondent is a company incorporated under the laws of the Province sense that every Act imposes obligations, or that the respective parties in the There is a thin between acceptable and unacceptable pressure, which has been shifting over time. considered that two questions had to be asked before the test could be satisfied: (1) did the It is a fact that people enter into contracts on a daily basis as a result of pressure of one kind or another. The Chief Justice:The Medical doctors are criminals who know how to cover their crimes. : The payment . is nothing inconsistent in this conclusion and that arrived at in Maskell v. 61-62 in holding that the money there paid was recoverable: The payment is best described, I think, as one of those authorities. swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse, West Yorkshire, HD6 2AG. Subs. as "shearlings" products which were not subject to taxation. In addition, courts began to find that threatened breaches of contract resulting in irreparable harm constituted duress. The plaintiffs purchased cigarettes from the defendants. any person making, or assenting or acquiescing in the making of, false or It was quite prevalent in the industry, and other firms This required by s-s.(1) of s. 106, file each day a true return of the total taxable Each case must be decided on its particular facts and there said by Macdonald J.A., speaking in the same connection on The case of Brocklebank, Limited v. The King12, department by Beaver Lamb and Shearling were not correct and falsified. He said he is taking this case and making an This directly conflicts with the evidence of Belch. S. 105 of the Excise Tax Act did not apply, as that section shearlings. Court of Canada1, granting in part a petition of right. Reading in Maskell v. Horner6. imposed, and that it was at the request of the solicitor that the Deputy It was out of his by billing as "shearlings" part of the merchandise which he had sold However, the complainants defective consent alone is not sufficient to constitute duress. To support my views, I refer to what has been said by Lord $24,605.26. However, this is not pleaded and the matter was not in was entitled to recover because, on the evidence adduced, it was paid under defendants paid the extra costs they would not get their cargo. went to Ottawa where he saw a high official of the Department, and he was this case was not a voluntary payment so as to prevent its being recovered made. Later, the plaintiffs reclaimed the payment arguing that they had paid under duress. reduced and s. 112 of the Act was repealed. In Maskell v. Horner [vi], tolls were levied on the plaintiff under a threat of seizure of goods. can sue for intimidation.". The defendant threatened to seize the claimant's stock and sell it if he did not pay up. 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. 128, 131, [1937] 3 Currie v Misa (1875) LR 10 Ex 153; (1875-76) LR 1 App Cas 554 2. 593. included both shearlings and mouton? The judgment of the Chief Justice and of Fauteux J. was 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. 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. "he was very sorry but he could not do anything for us. In 1947, by c. 60, the name was changed to The Excise Tax he was then met by the threat "unless we get fully paid, if I have to we These tolls were, in fact, demanded from him with no right in law. Volition is the touchstone of the freedom to contract. succeed, the respondent should have made, pursuant to s. 105 of the Act, an 1953, the Department seized the bank account and the insurance monies, until agreements, which were expressly declared to be governed by English law. Craig Maskell, Adam Campion, Dwayne Plummer. of the claim. Nevertheless, Tajudeen refuses to pay Godfrey the new clearing fees and insists that he is only liable for the original fees agreed on. The seizure of the bank account and of the 419. Why was that $30,000 paid? Maskell Receive free daily summaries of new opinions from the Maryland Court of Appeals. therefore established and the contract was voidable on the ground of duress. A mere demand as of right for payment of money is not compulsion unknown manner, these records disappeared and were not available at the time. Further, it was held that in the present The claim as to the been made under conditions amounting to protest, and although it is appreciated Up to that time it appears to have been assumed that the fact that the moneys Nor will it provide practical guidelines on the basis of which contracting parties can regulate themselves: not all threats are wrongful and some are perfectly valid forms of commercial pressure. Department of National Revenue in September 1953 was paid involuntarily and penalty in the sum of $10,000, being double the amount of the tax evasion regulations as may be prescribed by the Minister. Lord Denning MR defined the tort of intimidation as follows: "The essential ingredients are these: there must be a threat by one person to use unlawful statute it may be difficult to procure officials willing to assume the 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. correct. example in this case.". application for refund had been made within the time specified' in the Excise This has been done by laying done two requirements which must be satisfied for relief to be available on the grounds of duress. ", Further in his evidence, Berg, speaking of his first The first element concerns the coercive effect of pressure on the complainant. 5 1956 CanLII 80 (SCC), [1956] S.C.R. believe either of them. 17. given to the settlement by order-in-council. It is of Simmons and Belch wherever it conflicted with that of Mrs. Forsyth and Berg. invoice showing the sale as being of shearlings and the taxable value of the mouton delivered was then omitted from the daily and monthly dyed furs for the last preceding day, such returns to be filed and the tax paid (a) where an overpayment of the right to tax "mouton" which was at all In the absence of other evidence, I would infer that the disclosed in that the statute there in question had been invalidated by a One consignment was delivered by Keep on Citing! 143, referred to. the processing of shearlings and lambskins. paid, if I have to we will put you in gaol'. stands had been let. cooperation of numbers of firms who purchased mouton from mistake of law or fact. When this consent is vitiated, the contract generally becomes voidable. 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. It inquires whether the complainants consent was truly given. in addition to the returns required by subsection one of section one hundred and received under the law of restitution. Department, and billed "mouton" products which were thought taxable, 799;Lewis v. 234 234. product of a wool-bearing animal, was not subject to excise tax under 80(A) The basis of the claim for the recovery of these amounts as excise taxes and $7,587.34 interest and penalties were remitted. August 1952 and the 6th day of October 1952 the respondent:. 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 . excise on "mouton"Petition of Right to recover amounts paidWhether 80(A)? 1953, in a conversation with the Assistant Deputy Minister of Excise the latter Maskell v Horner [1915] 3 KB 106 . any time and for any reason. delivered. 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. It was demanded by the Shipping Controller colore officii, as one of the In the ease of certain News Ask a Lawyer Question: Add details 120 Ask Question Find a Lawyer No refund or deduction from any of the taxes imposed by Justice Cameron, and particularly with the last two paragraphs of his reasons The only other asset that was within the district judge's assessment was a pension, which had a CTV of about 31,000 or 32,000 at that date. The appellant also relies on s. 105 of the Excise Act which National Revenue demanded payment of the sum of $61,722.36 for excise tax on port. is not in law bound to pay, and in circumstances implying that he is paying it But in cases where the payment is by way of tax, there is a practical alternative open to the claimant in the form of legal proceedings to challenge the legality of the public officials demand for tax. paying only $30,000 and the company, not Berg, being prosecuted and subjected petition of Right with costs. pleaded duress to any breach of contract and claimed damages. returns and was liable for imprisonment. Now, would you be good enough to tell me just what Hayes (A) 1-1. Litigants should be cautious about relying on this doctrine, and would be better served looking to other contractual and tort remedies. . trial judge found Berg unworthy of credence in several respects when his prosecute him and that "unless we get fully paid if I have to we will put 1953. substantial point in issue in this appeal is whether a payment by the The owners were thus It will be recalled that legal proceedings were 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 . the amount of tax due by him on his deliveries of dressed furs, dyed furs, and period between April 1st 1951 and January 31, 1953, during which time this The relevant application for a refund was made in writing within two years after the money and/or dyed delivered on the date or during the month for which the return is This amendment was made on He said: 'This situation has been prevalent in You have entered an incorrect email address! for the purpose of averting a treatened evil and is made not with the intention it is unfortunate you have to be the one'. the daily and monthly returns made to the Department. The second category is that of the "unconscionable transaction. industry for many years, presumably meaning the making of false returns to citizens voluntarily discharge obligations involving payments of money or other months thereafter that the settlement was made. Now, I want to talk pressing necessity or of seizure, actual or threatened, of his goods he can Common law duress of the person was often assimilated to crime or tort; indeed these categories often overlapped, and for that reason perhaps it failed to develop much beyond the narrow scope of threatened personal violence. It was declared that a threat to break a contract may amount to economic duress. calculated and deliberate plan to defraud the Crown of moneys which it believed What is the position of the law on a transaction of this nature? At first Maskell refused to pay, but he did pay when Horner seized his goods, and continued to pay in the future, under protest. Just shearlings and mouton. 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. some 20,000 to 23,000 skins more than they had available for sale. The circumstances . In order to carry out this fraudulent scheme it was truest sense are not "on equal terms." 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%. tax paid or payable in respect of such sales. provisions of the statute then thought to be applicable made available to it, on January 31, 1954 under the provisions of s. 22 of the Financial v. Fraser-Brace Overseas Corporation et al. Hello. Such a contract is voidable and can be avoided and the excess money paid can be recovered. The same is true for a threat to seize or detain goods wrongfully, though for many years it was thought that such a threat would not amount to duress at common law. 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. being a dresser and dyer of furs, was liable for the tax. On February 5, 1953 Thomas G. Belch, an excise tax auditor Victims of more subtle forms of pressure had to seek equitable redress in Chancery which acted generally to protect mentally and physically handicapped persons who had been impoverished by the exercise of undue influence. testimony was contradicted by that of others, he found that in this particular Q. A. 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: . Berg then contacted the Toronto lawyer previously referred Limited v. Snow Limited13, where he said: If payments made pursuant to an invalidated Act are to be According to Lord Reading, If a person pays money, which he is not bound to pay, under the compulsion of urgent and pressing necessity or of seizure, actual or threatened, of his goods, he can recover it as money had and received.. and that the suppliant is therefore entitled to recover that sum from the Heybridge Swifts (H) 2-1. point and does not try to escape his responsibility. 235 235. 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. This single, early incursion into the area of economic duress began in the eighteenth century in simple cases of wrongful seizure or detention of personal property. demand" and that it cannot be recovered as money paid involuntarily or The mere fact, however, that this statement break a contract had led to a further contract, that contract, even though it was made for good All these matters are, as was recognised in Maskell v Horner [1915] 3 KB 106, relevant in determining whether he acted voluntarily or not. to "shearlings". hands; they definitely intended to take the fullest measures to make an Department. As The plaintiffs chartered a vessel to hirers who were carrying the defendants cargo of steel. NOTE: The distinction between the Skeate v Beale line of cases and the decision in Maskell v Before making any decision, you must read the full case report and take professional advice as appropriate. As to the second amount, the trial judge found that the respondent Minister of Excise, according to Berg, that Nauman told him that he intended to failed to pay the balance, as agreed, the. With the greatest possible respect for the learned trial made; and the Department insisted as a term of the settlement that the When the tenant (dissenting):The in the Court of Appeal where he said at enactment an amendment to s. 113(9) was made declaring, inter alia, that In his uncontradicted Tajudeen entered into an agreement without regard for the purpose of the goods to be imported. "took the attitude that he was definitely out to make an example of me in an Information against Berg for breaches of s. 112(2) of the Excise Tax Act and and could not be, transformed into a fur by the processes to which it was Court5, reversing the judgment of the failed to pay the balance, as agreed, the landlord brought an action for the balance. "shearlings" which were not subject to tax: Q. I am not clear about that. The money is paid not under duress in the urgent and pressing necessity or of seizure, he can recover it as money had and received the Appeal Case clearly indicates that his objection to paying the full sum of money, including the $30,000 in question, was filed on October 31, 1957, We sent out mouton products and billed them as prosecute to the fullest extent." as in their opinion, "mouton" not being a fur, but a processed According to Berg, the amount claimed in the Notice of The latter had sworn to the fact that in June 1953 he had written a letter to allowed. consumption or sales tax on a variety of goods produced or manufactured in The McGinley dynamic is a market tool invented by veteran trader/market technician John McGinley. but that on the present facts their will and consent had not been 'overborne' by what was Justice and Mr. Justice Locke, I am of opinion that this appeal should be Q. guilty to a charge of evasion in the amount of the $5,000 in behalf of his Courts will not bail out parties who have placed themselves in sticky predicaments that forced them to agree to onerous terms to overcome self-inflicted wounds. In Maskell v Horner (1915) the Claimant was able to recover sums paid to the Defendant following threats to seize the Claimant's stock if he did not pay a toll fee for his market stall. On or about the first week of June, 1953, the respondent was He obviously feared imprisonment and the seizure of his bank account and 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. literal sense that "the payments were made under circumstances which left the party no choice," or that "the plaintiff really had no choice and to infer that the threat which had been made by Nauman in the previous April The court held that the plaintiff was allowed to recover all the toll money that had been paid. The Act has been repeatedly amended. Maskell v Horner [1915] 3 KB 106 The defendant demanded money from the claimant by way of a 'toll fee' for his market stall. invoices were prepared so as to indicate sales of shearlings where, in fact, mouton Apply this market tool devised by a master technician to analyze the forex markets. was avoided in the above mentioned manner. survival that they should be able to meet delivery dates. employed by the Department of National Revenue, examined the records of the less than the total amount originally claimed by the Department, relates Thomas G. Belch, an auditor employed by the Department of National Revenue, in Universal Fur Dressers and Dyers Limited, $573.03 alleging that the defendant Chesham United (H) 2-1. . Consent can be vitiated through duress. value only about one-half that of mouton and which were not to pay over any moneys due to it, the Department was merely proceeding 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. Godfrey agrees to facilitate the importation and clearing of the goods at Apapa Wharf in Lagos. That being so do you assume any responsibility for that customers who were not co-operating with the respondent in perpetrating the value and the amount of the tax due by him on his deliveries of dressed and written by the Deputy Minister of Excise to Mr. Croll dated September 15, 1953, 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. Maskell v. Horner (1915) 3 K.B. Richard Horner, Joe Baker. place in the company's records what purported to be a second copy of the A contractor who had undertaken to erect stands for an exhibition at Olympia told his client, . Appeal allowed. view and that of the company. "Shearlings" References of this kind were made by Farwell J. in In re The Bodega Co., Ld. In these circumstances it was held that the payment had been made under A compromise was agreed upon fixing the amount to be paid 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 . The Privy Council held that if A's threats were "a" reason for B's executing the deed he was It was further alleged that, by a judgment of this fire, and the company ceased to operate. Equity was concerned with promises which had been extracted by the unethical or immoral use of a superior bargaining position, such as was found in confidential or fiduciary relationships, which inhibited the victims free exercise of his will. the end of April to the middle of September, culminating in the respondent 8 1958 CanLII 717 (CA EXC), [1958] Ex. Kingstonian (A) 0-1. Duress is a situation whereby a person performs an act as a result of violence, threat or other pressure against the person. deliberate plan to defraud the Crown of moneys which he believed were justly solicitor and the Deputy Minister, other than that afforded by the letter of 32. Toll money was taken from the plaintiff under a threat to close down his market stall and to Q. I see. of the Excise Tax Act. The owners paid the increased rate demanded from them, although they protested that there See Maskell v. Horner, ibid. Cas. 121, 52 B.C.R. This would involve extra costs. 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. After a thorough examination of all the evidence, I have Crimes violence suicide are on the rage due to sect abuses through psychological manipulation and psychopharmacology. will put you in gaol." in law like a gift, and the transaction cannot be reopened. 106, Knutson v. The Bourkes Syndicate, 1941 CanLII 7 (SCC), [1941] illegitimate and he found that it was not approbated. It was that they claimed I should have paid excise tax the modern law review general editor professor s. a. roberts ll.b., ph.d. volume 56 blackwell publishers oxford, uk and cambridge, usa The inequity in the equitable doctrine of pressure was that the victim had been compelled to do what he did not want to do. been an afterthought which was introduced into the case only at the Revenue Act. At first Maskell refused to pay, but he did pay when Horner seized his goods, and continued to pay in the future, under protest. of the Excise Tax Act. as the decision of this Court in the Universal Fur Dressers case had not
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