C.A. 1901. THE KING v. & Co. payable. That means that they are to be prevented from landing: Cundy v. Le Cocq(1); Commissioner of Police v. Cartman(2). The Legislature, having determined to prevent BANNATYNE the crew from landing permanently, may well have intended to abolish the restriction preventing them from landing at all before the furnishing of the list. Secondly, if "restrictions" must be read as including the poll-tax, then "and no" should be read as if no." The word "and" has been used in that way. Assuming that no poll-tax was payable, then the money was paid voluntarily under a mutual mistake of law. There was no protest against the payment. The respondents never asked whether the money was payable. It cannot be suggested that there was ever any doubt in the mind of either party that the money was due. Unless there is something in the nature of duress, which there was not in this case, the ordinary principle of law must apply: Pollock on Contracts (3); Kerr on Fraud and Mistake(4); Atlee v. Backhouse(5). [COOPER, J. Williams (6) and Morgan v. Palmer(7) tend to show that this was not a voluntary payment.] Steele V. In Steele v. Williams(6) there seems to have been insistence on payment. There was here a practice to pay, a joint belief, and nothing in the nature of demand or protest. It was a purely voluntary payment. The money was paid in discharge of the guarantee, and is not recoverable on that ground. Payment under the guarantee could have been enforced. There was sufficient consideration, the giving of time, and allowing an opportunity to find the Chinese: Skeate v. Beale (8). [DENNISTON, J.-Had the Customs any power to make such an agreement?] Possibly not. [DENNISTON, J.-If so, there was no consideration.] (1) 13 Q.B.D. 207. (2) [1896] 1 Q.B. 655; 12 T. L.R. 334. (3) 6th ed. 439. (4) 2nd ed. 471. (5) 3 M.& W. 633; 7 L.J. Ex. 234. 2 L.J. (O.S.) K.B. 145. (8) 9 L.J. Q.B. 233. C.A. 1901. THE KING v. & Co. In any case it was the guarantee which was paid, and the money cannot be recovered 'back. Atlee v. Backhouse(1) is indistinguishable on this point. This is not a claim or demand within the meaning of section 37 of The Crown Suits Act BANNATYNE 1881." It is an abuse of terms to say that there was here a contract entered into by or on behalf of Her Majesty. In Leake on Contracts (2) a distinction is taken between an implied contract, where the implication is from conduct, and a contract implied in law, which is raised by law independently of agreement. This is essentially a tort; there was no consent. But it cannot be sued for as a tort under subsection 2 of section 37, not being in connection with a public work. A contract, to be within section 37, should be an express contract. The words "express or implied" inserted in regard to the authority, but they are not inserted in regard to the contract itself. That is some indication. If an implied contract is covered, it must be a contract based upon implied consent, and not tract implied in law: See the remarks of Molesworth, J., in Lorimer v. The Queen(3). The proper remedy was under section 52 of "The Customs Laws Consolidation Act, 1882." The remedy under that section is exclusive: Sargood v. The The Queen(4). The appellant must no doubt contend that Chinese come within the term "goods." The poll-tax is a "duty." are а con [DENNISTON, J.-But do you contend that it is a duty imposed on "goods imported for home consumption "?] E. B. Brown and E. H. Dean, for the respondents: The only restriction" which can have been referred to by section 8 of "The Chinese Immigrants Act Amendment Act, 1888," is the poll-tax. The restriction with reference to tonnage imposed by section 3 of the Act of 1881 is a restriction on the vessel and on the number of passengers only; it never in any way affected the crew. It is said that sections 4 and 5 of the Act of 1881 contain a restriction against landing before a list is furnished; but the word "Chinese " (1) 3 M. & W. 633; 7 L.J. Ex. 234. (2) 3rd ed. 9. (3) 1 W. & W. (L.) 244. VOL. XX.-16. C.A. 1901 THE KING v. in both those sections means Chinese passengers only, and there was nothing in those sections to prevent a Chinese member of a crew from landing temporarily. This is accentuated BANNATYNE by the proviso to section 5. The tax not having been properly payable, it is recoverable: Leake on Contracts(1); Hooper v. Mayor, &c., of Exeter(2); Clutha County Council v. McDonald (3). & Co. [Counsel were here stopped by the Court on the point as to whether the payment was a voluntary payment, and also upon the question whether the fact that the guarantee or undertaking had been given was any answer.] The claim is founded upon contract within the meaning of section 37 of "The Crown Suits Act, 1881." Anything is a contract which is in the nature of a contractual obligation. The law implies a promise to repay if money which is paid is not properly payable. The obligation is therefore in the nature of a contract. Atlee v. Backhouse(4) assumes that if it had not been for the agreement in that case the money could have been recovered back from the Crown. The King cannot be sued in tort under a petition of right. The cases in which a petition of right will lie are where land, or goods, or money of a subject have found their way into the possession of the Crown, or where a claim arises out of a contract, as for goods supplied to the Crown or to the public service: Windsor and Annapolis Railway Company v. The Queen(5). If the respondents are not within the Crown Suits Act they can recover under this petition as a petition of right. But the above case helps to interpret section 37 of "The Crown Suits Act, 1881," and shows that it must have been intended to include an implied contract such as this. "The Crown Suits Act, 1881," was intended to extend and not to restrict the remedies of the subject. This is shown by the fact that a remedy is given for tort in connection with a public work. The cases in which the Crown could not previously be sued were cases of tort: Thomas v. The Queen(6); Encyclopædia of the Laws of (1) 3rd ed. 80 et seq. (3) N.Z. L.R. 2 S.C. 257. (4) 3 M. & W. 633; 7 L.J. Ex. 234. (5) 11 App. Cas. 607. (6) L.R. 10 Q.B. 31, 43. C.A. 1901. THE KING บ. England(1). Lorimer v. The Queen (2) and Stevenson v. The Queen(3) are express authorities in the respondents' favour. Our Crown Suits Act was passed after those cases. [Counsel were stopped by the Court.on the question whether BANNATYNE section 52 of "The Customs Laws Consolidation Act, 1882," applied to the case.] Findlay in reply. WILLIAMS, J.: Cur, adv. vult. "The Chinese Immigrants Act Amendment Act, 1888," amends the Chinese Immigrants Act of 1881. The 8th section of the Act of 1888 provides that "the penalties and re"strictions imposed by the said Act as amended by this Act “shall not, nor shall any of them, be held to be applicable "in the case of any Chinese being one of the crew of any vessel arriving in any port in New Zealand." What, then, are the "penalties and restrictions" here referred to? The 5th section of the Act of 1888 increases from £20 to £50 the penalty imposed by section 6 of the Act of 1881 upon the master of a vessel who should neglect to pay the poll-tax for which he is made liable by section 5 of the Act of 1881 in respect of every Chinese, or should land or permit to land any Chinese with intent to avoid payment of the tax. The 6th section of the Act of 1888 makes any Chinese who becomes liable to the penalty prescribed by the 9th section of the Act of 1881, and makes default in payment, liable to imprisonment for twelve months. The penalty imposed by section 9 is a sum of £10 in addition to the £10 poll-tax. By the very words, therefore, of section 8 of the Act of 1888 the penalties imposed by the 6th and 9th sections of the Act of 1888 are not applicable in the case of Chinese being members of the crew -that is to say, that the master is not liable to any penalty for non-payinent of the poll-tax in respect of any member of the crew, nor is any member of the crew liable to a penalty for non-payment of poll-tax in respect of himself. Section 8, however, of the Act of 1888 removes not only the "penalties (1) Vol. x. 60. (3) 2 W. W. & A'B. (L.) 176. (2) 1 W. & W. (L.) 244. & Co C.A. 1901. & Co. but the restrictions imposed by the Act of 1881. Now, the main restriction against Chinese imposed by the Act of 1881 THE KING is that which restrains any Chinese from landing in the colony BANNATYNE except upon payment of £10. If any Chinese, whether a passenger or a member of the crew, paid or had paid for him £10, then under the Act of 1881 he had a right to land and to remain in the colony. This by the Act of 1888 is altered. By the 8th section a Chinaman who is a member of the crew is absolutely prohibited from being discharged and landed from any vessel, or from going on shore at all except in the performance of his duties in connection with the vessel. The section is inartificially framed, as, although a Chinaman, a member of the crew, is prohibited from going on shore except in the performance of his duties, no penalty is imposed upon him for so doing, although, no doubt, such a contravention of the statute would be a misdemeanour. Where, however, a Chinese member of the crew is discharged and landed, he is, by section 8, made liable to a penalty of £20. This is double the amount of the poll-tax which was payable under the Act of 1881, at the time the Act of 1888 was passed The restriction, therefore, imposed by the Act of 1881 upon Chinese members of the crew who land with the intention of remaining in the colony is replaced under the Act of 1888 by an absolute prohibition of their so landing. As the restriction is superseded by the prohibition, the penalties for evading the restriction are no longer applicable, and by the 8th section of the Act of 1888 are declared to be no longer applicable. If a member of the crew has no right to land, even on payment of the poll-tax, then there can be no liability upon the master or upon any one else to pay the polltax in respect of him. I think, therefore, the £300 paid in the present case was not legally payable. As was intimated at the hearing, we were satisfied that the payment was not a voluntary payment. Money claimed colore officii, although claimed and paid in the common belief that the officer had a right in law to demand it, can be recovered back, and is not irrecoverable as having been paid under a mistake of law. With respect to the right of the respondents to recover under "The Crown Suits Act, 1881," the language of our Act is practically indis |