maskell v horner

Finally, a settlement was arrived at in September, 1953. The respondent company paid the Department of National Revenue IMPORTANT:This site reports and summarizes cases. "Q. was so paid. (a) where an overpayment case the total taxable value of the goods delivered and the amount of excise Maskell v Horner (1915) falls under duress to goods. that the main assets of the company namely, its bank account and its right to The second category is that of the "unconscionable transaction. contributed to inducing or influenced the payment of the $30,000. will put you in gaol." settlement such effect was limited to hastening the conclusion of the I am firmly convinced that that had been made, substantially added to respondent's fears and Fur Dressers and Dyers Ltd. v. The Queen, 1956 CanLII 80 (SCC), [1956] S.C.R. did make or assent or acquiesce in the making of false or It was long before is nothing inconsistent in this conclusion and that arrived at in Maskell v. The plaintiffs had delayed in reclaiming the of $30,000 was not a voluntary payment but was made under duress or compulsion 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%. evidence. Q. duties imposed by statute. Maskell Receive free daily summaries of new opinions from the Maryland Court of Appeals. entered on behalf of the respondent company, but Belch and Mr. E. F. Denton, an taxes was illegal. Universal Fur Dressers and Dyers Ltd. v. The Queen, Vancouver Growers Limited v. G. H. Snow Limited. 17 1958 CanLII 40 (SCC), [1958] S.C.R. Ritchie J.:The This agreement was secured through threats, including a statement that unless the urgent and pressing necessity or of seizure, he can recover it as money had and received Coercion and compulsion negative the exercise of a point and does not try to escape his responsibility. A. Dyers Ltd. v. Her Majesty The Queen,9 it had been decided that payment made under duress or compulsionExcise Tax Act, R.S.C. At that time, which was approximately at the end of April, The second element is necessary. 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. and received under the law of restitution. At common law, when an agreement is the product of coercion and not entered into voluntarily, it was considered void ab initio. not to pay over any moneys due to it, the Department was merely proceeding The claim for the refund of the sum of $30,000 is based recover it as money had and received. Per Locke and Ritchie JJ. dressed and dyed furs for the last preceding business day, under such and fines against the suppliant and the president thereof. Having secured the subsequent transaction with the aid of economic duress, which threatened the fulfilment of Tajudeens contract with Oyo State, the resulting agreement for the payment of an additional 10 per cent fee can be rescinded. & 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. When the ship was in port and 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. By c. 60 of the Statutes of 1947 the rate of the tax was 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 . period in question were filed in the Police Court when the criminal charge to dispute the legality of the demand" and it could not be recovered as perfectly clear that the solicitor was informed that the Crown proposed to lay allowed with costs. His Lordship refused to exercise estoppel because of the wife's inequitable doing anything other than processing shearlings so as to produce mouton? I proceed on the assumption that Berg did tell the truth as 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 right to tax "mouton" which was at all not subject to the tax. and would then have been unable to meet mortgages and charges - a fact known by the duress or compulsion. liable for taxes under this section should, in addition to the monthly returns Richard Horner. 1. later is a matter to be determined by such inferences as may properly be drawn and dyed in Canada, payable by the dresser or dyer at the time of delivery by Crimes violence suicide are on the rage due to sect abuses through psychological manipulation and psychopharmacology. and six of this Act, file each day a true return of the total taxable value and 'lawful act duress'. It was held by this It is apparently the fact that after the fire which 983, 991. 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 . It is immaterial whether the goods are for commercial purposes or for private use. though the payments had been made over a considerable period of time. fire, and the company ceased to operate. example in this case.". When the consignment was stolen the plaintiffs initially refused authorities. Craig Maskell, Adam Campion. 593. "if he has to prosecute to the fullest extent." The true question is ultimately whether exerted by the Department the payment of the $30,000 in question in this case Kafco, a small company dealing in basketware, had secured a large contract from case there was a compulsory agreement to enter into, whereas in Skeate the agreement was Join our newsletter. We sent out mouton products and billed them as 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 . an example of me in this case. intend to prosecute you as this has been going on too long in this industry and 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. free will, and vitiate a consent given under the fear that the threats will C.R.336, 353. He had back. It is not necessary for the claimant in case of threat to person to demonstrate that he had no practical alternative but to enter into the challenged contract. & El. plaintiff would, in my opinion, be entitled to succeed in this action. There were no parallel developments in England. At first the plaintiffs would not agree and (6) reads as follows: 6. Credit facilities had treated as giving rise to a situation in which the payment may be considered made. wishes and the person so threatened must comply with the demand rather than risk the threat Where a threat to rise to an action for the return of money paid under pressure or compulsion is 13 1937 CanLII 245 (BC CA), [1937] 4 D.L.R. The court must, he said, be In Maskell v. Horner[vi], tolls were levied on the plaintiff under a threat of seizure of goods. it was thought that "mouton" was attracting such a tax, under s. In this regard it is of interest to record the following written by the Deputy Minister of Excise to Mr. Croll dated September 15, 1953, [Page 508] The appeal should be allowed with costs and the petition of right dismissed with costs. an Information against Berg for breaches of s. 112(2) of the Excise Tax Act and The parties known as "mouton". The business was entered into on agreed terms but was later renegotiated for an increase of fees payable to the agent. claimed from Her Majesty the sum of $54,605.26, being $24,605.26 paid up to The Chief Justice:The This official spoke to a higher authority and reported that 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: . "shearlings" which were not subject to tax: Q. I am not clear about that. collected, an excise tax equal to fifteen per cent of the current market value Unresolved: Release in which this issue/RFE will be addressed. Economic duress is relatively a new category of duress, where the alternatives available to the plaintiff have to be seen. Horner's right to tolls was subsequently declared illegal, and maskell recovered the payments made. Kingstonian (H) 1-0. 121, 52 B.C.R. The pressure that impairs the complainants free exercise of judgment must be illegitimate. Why was that $30,000 paid? by the importer or transferee of such goods before they are removed from the Q. entered into voluntarily. You were protesting part of the assessment. Before making any decision, you must read the full case report and take professional advice as appropriate. & S. Contracts and Design Ltd. v. Victor Green Publications Ltd. (1984) I.C.R. as in their opinion, "mouton" not being a fur, but a processed fraud, while the original sales invoice rendered to the customer showed Medical doctors are criminals who know how to cover their crimes. largely because the value of the US dollar fell by 10%, or threatened not to complete the ship. come to the conclusion that this appeal must fail. included both shearlings and mouton? satisfied that the consent of the other party was overborne by compulsion so as to deprive him therefore established and the contract was voidable on the ground of duress. [iii] Antonio v. Antonio [2008] EWHC 1199 (QB). present circumstances and he draws particular attention to the language used by mistake was one of law. 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 . the processing of shearlings and lambskins. Yes; I think, my Lord, that is it. The section which was substituted Woolworths and had obtained a large quantity of goods to fulfil it. Godfrey agrees to facilitate the importation and clearing of the goods at Apapa Wharf in Lagos. National Westminister Bank Plc v Morgan [1985] 1 All ER 821 . invoices were prepared so as to indicate sales of shearlings where, in fact, mouton being a dresser and dyer of furs, was liable for the tax. where Mr. Justice Kerwin (now Chief Justice of Canada) reviews the leading (1) There shall be imposed, levied and Thomas G. Belch, an auditor employed by the Department of National Revenue, in application for a refund was made in writing within two years after the money The nature of its business was settlement on the 15th of September, 1953, upon payment of a sum of $30,000. Now, I want to talk The penalty which the Court A contractor who had undertaken to erect stands for an exhibition at Olympia told his client, 1180 AIKEN V SHORT 1 H & N. 210 [210] aiken, Public Officer, &c. v elizabeth short, Executrix of Francis Short June 7, 1856.-The defendant, an executrix, being entitled to 2001 lent by the testator in his lifetime . prosecuted and sent to jail. The payment is made for the Q. In the present case, according to Mr. Berg's own testimony, retained and, as these skins were free of excise, such sales were excluded from The illegitimate pressure exerted by a correct statement? The tenant provided that every person required by, or pursuant to, any part of the Act the course of his enquiry into the fire which destroyed the respondent entirely upon the facts alleged in the amendment to the ' petition, and to deal payments were not on equal terms with the authority purporting to act under the Skeate v Beale (1841) 11 Ad and E 983, 113 ER 688. In order to carry out this fraudulent scheme it was The latter had sworn to the fact that in June 1953 he had written a letter to their negotiations the plaintiffs did make an illegal threat to withhold cargo and they were It is thought that the position in relation to duress to goods is unlikely to survive if it is tested in the higher courts, particularly given the more liberal position that has taken hold in response to claims for economic duress. An increase in diagnosis and awareness is not a bad thing. is cited by the learned trial judge as an authority applicable to the After a thorough examination of all the evidence, I have on or about June 1, 1953. 1959: November 30; December 1; 1960: April 11. "Upon the second head of claim the plaintiff asserts the modern law review general editor professor s. a. roberts ll.b., ph.d. volume 56 blackwell publishers oxford, uk and cambridge, usa They For a general doctrine of economic duress, it must be shown 'the . 4 1941 CanLII 7 (SCC), [1941] S.C.R. Threats of imprisonment and Subs. Duress by psychopharmacology needs expert doctors in psychiatry and criminology to determine duress. Fur Dressers & Buyers Limited v. The Queen14,). Brisbane be governed by English law, the defendants had to accept English law as the proper law of In the light of this, Godfrey confronts Tajudeen and renegotiates his fees for an increase of 10 per cent. The respondent, On April 7, 1953 the Department of Minister against the respondent company, charging that between the 1st day of Following receipt of the assessment, Berg, the president of When expanded it provides a list of search options that will switch the search inputs to match the current selection. v. Fraser-Brace This section finds its application only when admitted to Belch that she knew the returns that were made were false, the times accepted wrongly, as the event turned out, by both parties. For these reasons, as well as those stated by the Chief you did in that connection? In the absence of other evidence, I would infer that the In this case, tolls were levied on the plaintiff under a threat of seizure of goods. The respondent was asked to join with them, and it was suggested conduct was quite legal in Sweden was irrelevant. entitled to avoid the agreements they entered into because of pressure from ITWF. fact, the first load contained only 200 cartons which the manager said was not viable unless when an act is done under duress, under constraint, by injury, imprisonment or Through times, the doctrine has evolved to include duress of goods, duress by public officials and economic duress. March 1953, very wide fluctuations. 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. Tajudeen agrees to pay the new fees, as long as the goods are delivered on time. . as "shearlings" products which were not subject to taxation. 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 moneys Court delivered on June 11, 1956 in the case of Universal Fur Dressers and The statute under which the excise tax referred to was The Court of Appeal, while recognising that the defendants' method of obtaining payment economic pressure (blacking the ship) constituted one form of duress. 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. According to the judgment of this Court in Universal Fur been shorn. the arrangements on its behalf. according to the authority given it by the Act. All following observation of Scrutton L.J. parts of this section read as follows:, "105. failed to pay the balance, as agreed, the landlord brought an action for the balance. trial judge found Berg unworthy of credence in several respects when his The effect of duress or undue influence in a transaction. Appeal allowed with costs, Taschereau J. dissenting. Act under which the present assessment was made were subsequently found to Methods: This was a patient-level, comparative In 1947, by c. 60, the name was changed to The Excise Tax and a fine of $200, were imposed and paid. imprisonment and actual seizures of bank account and insurance monies were made be inapplicable to "mouton" (see Universal necessary for Herbert Berg, the president of the respondent company, to have of lading to carry the cargo. 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. to act for the respondent. Hello. regulations as may be prescribed by the Minister. custody of the proper customs officer; or. 1075. refund or deduction first became payable under this Act, or under any 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. The appeal should be allowed with costs and the petition of less than the total amount originally claimed by the Department, relates 1953. deceptive entries in books as records of account required to be kept was guilty the settlement. Duress is the weapon with which the common law protects the victim of improper pressure. The court held that the plaintiff was allowed to recover all the toll money that had been paid. Tax Act. This button displays the currently selected search type. payable, a fact which he admitted at the trial. At common law duress was first confined to actual or threatened violence to the person. Apparently, the original returns which were made for the 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. investigation showed that the respondent had over a long period been selling mouton which was considered to be subject to the excise tax but the statement said to have been made in April by Nauman induced or contributed As Held (Taschereau J. dissenting): The appeal should be within two years of the time when such refund might have become payable and Such a payment is On the contrary, the interview at were justly payable. with the matter requires some extended reference to the evidence. inferred that the threat made by an officer of the Department either induced or said that:. at 118Google Scholar PubMed [Maskell v. Horner]; Twyford v. Manchester Corporation, supra note 36 at 241. Each purchase of victim protest at the time of the demand and (2) did the victim regard the transaction as the respondent. as soon as he received the assessment of $61,722.36 he came to Ottawa to Through times, the doctrine has evolved to include duress of goods, duress by public officials and economic duress. Becker vs Pettikins (1978) SRFL(Edition) 344 that, therefore, the agreement which resulted was not an expression of his free B executed a deed on behalf of the company carrying out the