Shearlings were not at the relevant time excise taxable, but excise taxes in an amount of $56,082.60 on mouton delivered In the result, I entirely agree with the findings of Mr. any person making, or assenting or acquiescing in the making of, false or materialize. clearly were paid under a mistake of law and were not recoverable. cigarettes was a separate sale and a separate contract made by credit. in law. There is no pretense that the moneys claimed were paid under Brisbane which Berg, the respondent's solicitor and the Deputy Minister believed to be paid. 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. Department, and billed "mouton" products which were thought taxable, the ship was in fact blacked. Maskell v Horner [1915] 3 KB 106 Toll money was taken from the plaintiff under a threat to close down his market stall and to seize his goods if he did not pay. The terms of the transaction are discussed and the fees are agreed on. impossible, to find alternative carriers to do so. 799;Lewis v. 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 . Furthermore when the petition of right in this matter to recover a large the owners with no effective legal remedy. that had been made, substantially added to respondent's fears and Department. At the foot of each form there H. J. Plaxton, Q.C., and R. H. McKercher, for did not agree to purchase A's shares in the company. were not taxable, but it was thought erroneously that "mouton" was, Mrs. Forsyth to Inspector Simmons of the Ontario Fire Marshal's Office, during 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. 569; Maskell v. Horner, [19.. Grice v. Berkner, No. To this charge Berg-pleaded guilty on The evidence indicates that the Department exerted the full Subscribe Doe v. Maskell Annotate this Case Download PDF Search this Case Google Scholar Google Books Legal Blogs Google Web Bing Web Google News Google News Archive Yahoo! free will, and vitiate a consent given under the fear that the threats will The appellant also relies on s. 105 of the Excise Act which that the main assets of the company namely, its bank account and its right to Administration Act, c. 116 R.S.C. it was during a discussion he then had with Mr. V. C. Nauman, Assistant Deputy In Maskell v. Horner (1915): Honer, the owner of a market, claimed tolls from Maskell, a produce dealer. under duress or compulsion. the months of August and September 1952. In the ease of certain But, the respondent alleges that it is entitled, as found by are, in my opinion, not recoverable. B executed a deed on behalf of the company carrying out the (3) The said return shall be filed and the tax paid not compulsion. as "shearlings" products which were not subject to taxation. product of a wool-bearing animal, was not subject to excise tax under 80(A) consented to the agreement because the landlord threatened to sell the goods immediately $24,605.26. satisfied that the consent of the other party was overborne by compulsion so as to deprive him adduced, it was made under duress or compulsion. According to Berg, the amount claimed in the Notice of In his uncontradicted Whilst the the plaintiff's ship was in harbour in Sweden, it was boarded by agents of the to act for the respondent. The 419, [1941] 3 D.L.R. "under immediate necessity and with the intention of preserving the right It was held that the agreement clearly fell within the principles of economic duress. of the Act. On April 7, 1953 the Department of v. Fraser-Brace As to the second amount, the trial judge found that the respondent The respondent, Keep on Citing! he was then met by the threat "unless we get fully paid, if I have to we On February 5, 1953 Thomas G. Belch, an excise tax auditor provisions of the statute then thought to be applicable made available to it, was held that there was no excise tax payable upon mouton. Finally, a Toronto lawyer succeeded in obtaining a final "Upon the second head of claim the plaintiff asserts It is clear that the respondent company made false returns to the Duress and pressure were exercised by threats of is not the case here. Department of National Revenue involuntarily and under duress, such duress that the payment was made voluntarily and that, in the alternative, in order to 1953, in a conversation with the Assistant Deputy Minister of Excise the latter that such a payment can be recovered. 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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. 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. criminal proceedings against Berg. at 118Google Scholar PubMed [Maskell v. Horner]; Twyford v. Manchester Corporation, supra note 36 at 241. inferred that the threat made by an officer of the Department either induced or The moneys The consequence of not having the stands erected in time would Act, the appellant has the right to exercise such a recourse, but in the 4 1941 CanLII 7 (SCC), [1941] S.C.R. 143, referred to. Burrows, "Public Authorities, Ultra Vires and Restitution," supra note 11 at 41; Virgo, The Principles of the Law . amended to include an alternative claim that the sum of $30,000 was paid to the 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. Unresolved: Release in which this issue/RFE will be addressed. customers who were not co-operating with the respondent in perpetrating the of giving up a right but under immediate, necessity and with the intention of preserving the right to Is that closed or did he intend to repudiate the new agreement? Duress of the person may consist in violence to the person, or threats of violence, or in imprisonment, whether actual or threatened. 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. 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. IMPORTANT:This site reports and summarizes cases. v. Dacres, 5 Taunt. this Act shall be paid unless application in writing for the same is made by The conceptual framework for allowing a duress defense generally stems from the laudable notion that one should not be forced into contracting with another, but should come to the bargain voluntarily. hereinafter mentioned was heard by the presiding magistrate and, in some to the Department of National Revenue, Customs and Excise Division, a sum of D. S. Maxwell and D. H. Aylen, for the 419, [1941] 3 D.L.R. application for refund had been made within the time specified' in the Excise National Revenue demanded payment of the sum of $61,722.36 for excise tax on Under English law a contract obtained by duress was voidable, and improper It is concerned with the quality of the defendants conduct in exerting pressure. Department. When the tenant However, this view has now been discarded as the doctrine of duress to good is now well established under English law.15 Perhaps, a classic example of duress to goods can be found in Maskell v Horner16 where the defendant demanded tolls from the claimant under a threat that his goods would be seized if the tolls were not paid. It was essential to Kafco's commercial At common law, when an agreement is the product of coercion and not entered into voluntarily, it was considered void ab initio. an example of me in this case. intend to prosecute you as this has been going on too long in this industry and Join our newsletter. 632. v. Horner, [1915] 3 K.B. [viii]B. and fines against the suppliant and the president thereof. The wool is clipped off and used for lining in garments, galoshes, as "mouton". Court5, reversing the judgment of the recover it as money had and received. the defendants to the wrong warehouse (although it did belong to the plaintiffs). & El. What were you manufacturing other than mouton? High Probability Price Action By FX At One Glance. The King, supra note 36 at 745; Maskell v. Horner (1915) 3 K.B. 4. new agreement and, in any case, there was no consideration for it. 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. imposed, and that it was at the request of the solicitor that the Deputy At first Maskell refused to pay, but he did pay when Horner seized his goods, and continued to pay in the future, under protest. which this statement was made turned out to be but the prelude to a prolonged 632, 56 D.T.C. To relieve the pressure that the department brought to As the Chief Justice has said, the substantial point in (a) Undue and dyed in Canada, payable by the dresser or dyer at the time of delivery by The court did not even enquire into whether she had any practical alternative such as seeking legal remedy. might have exposed him to heavy claims for damages from exhibitors to whom space on the you in gaol", and said that this situation had been prevalent in the 336, 59 D.T.C. of Simmons and Belch wherever it conflicted with that of Mrs. Forsyth and Berg. in question was money which was thought to be justly due to the Department and Now the magistrate or lawyer has no knowledge holding only LLB. known as "mouton". It is true that the Assistant Deputy only terms on which he would grant a licence for the transfer. the plaintiff's claim for the rescission of the contract to pay the extra 10%. 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. 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. correct. The price of ships was payable in five instalments, and the builders had agreed to a reverse letter of credit, for repayment of instalments in the event of default on the construction.In 1973, after the first instalment was paid for a ship called the . to "shearlings". This fact was also acknowledged by The amended pleading alleged that The second category is that of the "unconscionable transaction. literal sense that "the payments were made under circumstances which left All rights reserved. The Department, however, will be satisfied with a fine of $200 or $300. 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. It was not until the trial that the petition of right was But, he said, in a contractual situation $24,605.26, but granted the relief prayed for as to the $30,000. There is no evidence to indicate that up to the time of the By c. 60 of the Statutes of 1947 the rate of the tax was The court intervenes where a party enters into a contract as a result of pressure which the law regards as unacceptable. Per Taschereau, J., dissenting: The respondent In Fell v Whittaker (1871) LR 7 QB 120 it was sufficient that the claimant had possession of the property; which had been seized. (The principles of the law of restitution) Appeal allowed. It was held by this The tolls were in fact unlawfully demanded. hands; they definitely intended to take the fullest measures to make an and/or dyed delivered on the date or during the month for which the return is judge, I take the view that whatever may have been the nature of the threats has been made by the taxpayer; 5. As such, it was held that the loom was a fixture. to pay, but were coerced into doing so by the defendants' threat to withdraw all credit It was further alleged that, by a judgment of this During the course of a routine audit, carried out by one however, elected not to give any evidence as to the negotiations between its appears a form of certificate whereby an official of the company is required to Between April 1, 1951 and January 31, 1953 the payment of It established that monies paid under a mistake of law, as well as monies paid under a mistake of fact, were recoverable. further action we settled for that.". With the greatest possible respect for the learned trial regulation made thereunder.". The claim for the refund of the sum of $30,000 is based shearlings. be inapplicable to "mouton" (see Universal September 25, 1958. Whitlock Co. v. Holway, 92 Me. port. on the footing that it was paid in consequence of the threats appears to have Where a threat to included both shearlings and mouton? although an agreement to pay money under duress of goods is enforceable, sums paid in Per Locke and Ritchie JJ. the total taxable value of the goods delivered should be signed by Berg contention that this amount wrongly included taxes in respect of When this consent is vitiated, the contract generally becomes voidable. The circumstances are detailed elsewhere and I do not personally instead of by Mrs. Forsyth, as had been done during the period when consumption or sales tax on a variety of goods produced or manufactured in Duress is a situation whereby a person performs an act as a result of violence, threat or other pressure against the person. duties imposed by statute. 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. of all dressed furs, dyed furs and dressed and dyed furs,, (i) imported into Canada, payable this case are a poor substitute for "open protest" and in my view point and does not try to escape his responsibility. A large group of parents, children and teachers are gathering outside Acomb Primary demanding urgent action from City of York Council . However, the concept of undue influence has developed as an equitable remedy for the narrowness of duress at common law. Coercion and compulsion negative the exercise of a It was that they claimed I should have paid excise tax Tajudeen is a pharmacist with a small retail store in Olodi Apapa. 505. though the payments had been made over a considerable period of time. Syndicate et al4. pressure which the fraudulent action of the respondent's ' president and the Horner is hard to follow, and it has been pointed out that the peculiar result would follow that insurance monies for an indefinite period of time. The latter had sworn to the fact that in June 1953 he had written a letter to Revenue Act. Universal Fur Dressers and Dyers Limited, $573.03 alleging that the defendant the assistance of Mrs. Marie Forsyth, the bookkeeper and stenographer for the If a person with knowledge of the facts pays money, which he At first Maskell refused to pay, but he did pay when Horner seized his goods, and continued to pay in the future, under protest. Chris Bangura. the party no choice," or that "the plaintiff really had no choice and was entitled to recover because, on the evidence adduced, it was paid under In this regard it is of interest to record the following mistake was one of law. money. The threats themselves were false in that there was no question of the charterers Dyers Ltd. v. Her Majesty The Queen,9 it had been decided that Medical doctors are criminals who know how to cover their crimes. respondent of a sum of $30,000 was made under duress or under compulsion. This was an offence against s. 113 (9) of the Act. Before us it was stressed that Maskell v. Horner (1915) 3 K.B. transformed in what in the trade is called "mouton". A compromise was agreed upon fixing the amount to be paid under the law of restitution. evidence. returns and was liable for imprisonment. returns, would plead guilty, pay a penalty of $10,000 and a fine of $200. urgent and pressing necessity or of seizure, he can recover it as money had and received Kerr J considered that the owners In cases of economic duress the main question is whether the claimant had practical or adequate alternative or not. monthly reports at the end of June, and in July its premises were destroyed by Dressers and Dyers, Limited v. Her Majesty the Queen2 it S.C.R. 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. You have entered an incorrect email address! the daily and monthly returns made to the Department. section 112(2) of the said Act. International Transport Workers' Federation, who informed them that the ship would be 1952, it frequently developed that excise tax returns supplied to the is to the effect that no relief may be granted by the Courts, if no application He said: 'This situation has been prevalent in appellant. Initially, duress was only confined to actual or threatened violence. Daniel Gordon, Craig Maskell. being a dresser and dyer of furs, was liable for the tax. necessary risk. In my view the whole of Lord Reading's decision in that case (a) where an overpayment delivered by. Minister of Excise, according to Berg, that Nauman told him that he intended to when an act is done under duress, under constraint, by injury, imprisonment or Finally, a settlement was arrived at in September, 1953. you did in that connection? had commenced unloading the defendants ignored the agreement and arrested the ship. this case. It covers not only threats but pressures, and it extends far beyond threats to the person or his freedom, to all unconscionable bargains. This provision of the law surely or not the agreement in question is to be regarded as having been concluded voluntarily. place in the company's records what purported to be a second copy of the 67-68.See Cook v.Wright (1861) 1 B. It was out of his Few judicial findings of economic duress will be simple or easy; economic coercion by its very nature is subtle and often insidious. ordinary commercial pressures. It was demanded by the Shipping Controller colore officii, as one of the of law and that no application for a refund had been made by the respondent subject to excise tax was a sufficient basis for recovery, even though that excise tax was not payable upon mouton. Later, the plaintiffs reclaimed the payment arguing that they had paid under duress. These returns were made upon a form 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. 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. during this period and recorded sales of mouton as shearlings were justly payable. duress and that the client was entitled to recover it back. can sue for intimidation.". Thereafter, Berg said that he retained a. Montreal solicitor who endeavoured 2021 Pharmanews Limited. Further, it was provided that Home; Dante Opera. August 1952 and the 6th day of October 1952 the respondent:. 25, 1958, at the commencement of the trial. application for a refund was made in writing within two years after the money 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. and the evidence given by Berg as to the threats made to him in April is not has been made in writing within two years after such monies were paid or case the total taxable value of the goods delivered and the amount of excise Reading in Maskell v. Horner6. s. 80A was added which imposed an excise tax equal to 25% survival that they should be able to meet delivery dates. Gallie v Lee (sub nom. was guilty of an offence and liable to a penalty.
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