C.A.

tinguishable from that of the Victorian statutes. I entirely agree with the reasoning of Stawell, C.J., in the case of Stevenson v. The Queen(1), and with the decision of the Supreme Court of Victoria in that case and in the earlier case of Lorimer v. The Queen(2). I think, therefore, that the decision of the Court below should be affirmed.

DENNISTON, J. :—

The judgment I am about to read is the judgment also of my brothers Conolly, Edwards, and Cooper.

It was intimated during the argument of this appeal that the only questions which the Court desired to take time to consider were two: Were the moneys paid by the respondents as poll-tax in respect of the three deserting members of the crew properly payable under " The Chinese Immigrants Act, 1881," and the amending Act of 1888? and, if not, were such moneys recoverable under recoverable under "The Crown Suits Act,

1881"?

To answer the first question it will be necessary first to consider the liabilities of the master (for whom the respondents were acting) in respect of the poll-tax on members of the crew under the Act of 1881, and then to consider how far such liabilities are modified by the amending Act.

By section 5 of the Act of 1881 it is provided that before making an entry at the Customs, and before any Chinese shall be permitted to land, the captain shall pay the sum of £10 (made £100 by the Act of 1896) for every Chinese; but such sum of £10 is not to be payable by or in respect of any Chinese who is one of the crew of the vessel, unless he lands with the intention of remaining in the colony. Except the provisions of section 6, which inflict a penalty on a master for neglecting to pay such sum, or landing or permitting to land any Chinese with the intent in any of the above cases to evade the payment of the tax, there is no penalty on the master for non-payment. The Act of 1888 provides (section 5) that it shail be an offence" within the meaning" of section 6 of the principal Act if the master shall permit or suffer any Chinese (1) 2 W.W. & A'B. (L.) 176. (2) 1 W. & W. (L.) 244.

1901.

THE KING

V.

BANNATYNE

& Co.

C.A. 1901.

THE KING

บ.

& Co.

to escape from such vessel before the prescribed amount shall have been paid on behalf of such Chinese. Section 6 made it an offence to neglect to pay the poll-tax, or to land or permit BANNATYNE to land any Chinese before such poll-tax was paid for or by such Chinese, with the intent, in any of the above cases, to evade the payment thereof. In the view we have come to in the construction of section 8 of the Act of 1888, we consider that no amount is prescribed to be paid by the master in respect of members of the crew landing or escaping. It is therefore unnecessary for us to consider the effect of section 5. It must, however, with the matters originally penalised by the section, apply only to a case where the master has permitted or suffered an escape "with the intent to evade the payment of

the poll-tax." This is not only the plain meaning of the section, but might be inferred (were the matter doubtful) from the nature of the penalty-a fine of £50, payment of the tax of £10 (now £100), and a liability to forfeiture of the vessel.

The main controversy in this part of the case is as to the effect of section 8. In form, at least, the section contains two provisions an exemption of every Chinese, a member of the crew, from the penalties and restrictions imposed by the principal Act, as amended by the Act of 1888, and an absolute prohibition, in respect of any member of the crew, from being discharged and landed or from at any time going on shore except in the performance of his duties in connection with the vessel, under a penalty on every member so discharged and landed of £20. Whatever may have been the intention of the framer of the section, we think its plain effect is to place the crew in an entirely different category from that of Chinese passengers. The latter are- and before the Amendment Act the crew were-persons who might, on payment of a certain sum, land in the colony and become its citizens. Under the principal Act the master was liable to pay the tax on every Chinese before he shall be permitted to land." The payment was a condition precedent to the right to land, and implied a right to land on such payment. This construction is confirmed by the provision which in terms declares that no penalties or restrictions imposed by the Act shall be applicable in the case

66

C.A.

1901.

THE KING

2.

& Co.

of members of the crew. They are treated as a separate class. Any one of such who goes and remains on shore, except in performance of his duties in connection with the vessel, is a person illegally at large in New Zealand; and no payment of BANNATYNE any tax or fine would, it seems to us, make him anything else. He is not within section 9 of the Act of 1881. The payments therein imposed are clearly in the nature of penalties; and a special penalty (equivalent to what was, at the time of the passing of the Act of 1888, equivalent to the penalties under section 9) is imposed by section 8.

The only other point which the Court required to hear argued was as to the right of the respondent to recover under "The Crown Suits Act, 1881." The obvious object of that Act is to make any redress previously obtainable by a subject against the Crown by petition of right obtainable under the Act. Moneys, the property of a subject, in the possession of the Crown, could be recovered ou a petition of right : Windsor and Annapolis Railway Company v. The Queen(1). An action for money had and received is the proper form for recovering such money as between subject and subject: unless, therefore, it is distinctly excluded, such a claim can be the subject of a suit under the Act.

It is contended by counsel for the Crown that the claim is not founded on, nor arises from, a breach of any contract entered into by the Executive Government, and consequently is not within section 37 of the Act. The action for money had and received is founded on a contract implied by law to pay on request money which it would be unconscientious as against the plaintiff to retain. We have therefore a complete and valid contract, the breach of which gives a right of action. If a contract exists it must have been "entered into " between the parties to it. That such entering is an implication of law can make no difference. There seems no direct English authority on the point, but in the Victorian case of Lorimer v. The Queen(2) it was held by the full Court (Molesworth, J., dubitante), on the construction of a Victorian statute on this point practically identical with our own, that such action (1) 11 App. Cas. 607, 614. (2) 1 W. & W. (E.) 244.

C.A.

1901.

THE KING

V.

& Co.

would lie; and the same conclusion was arrived at by the full Court in Stevenson v. The Queen(1).

Counsel for respondents was stopped by the Court on the BANNATYNE question as o the payment being made voluntarily. Whatever opinion the respondents may have formed as to their legal liability (if they formed any), the guarantee was given, and the payment made under it, in consequence of the intimation of the Customs authorities that the vessel would be detained until such payment was made or arranged for. The belief or non-belief of the respondents in the legality of the claim does not affect the question. The money was paid in consequence of a threat made by a public officer public officer it is true, in perfect good faith-to put the respondents to serious inconvenience if they did not pay. The case is covered by Steele v. Williams (2). And see the cases cited in Bullen & Leake's Precedents(3), where the principle is broadly stated as that money paid by the plaintiff in discharge of a demand illegally made under colour of office may be recovered back as "a debt."

66

66

--

In Atlee v. Backhouse(4), which was strongly relied upon for the appellant, it was pointed out by Parke, B., that the ground of these cases is not duress for duress, to avoid a contract, must be duress of a man's person, not of his goods—— but the ground is that it is not a voluntary payment. The judgment of Lord Abinger, C.B., shows very clearly that the payment in that case was not a voluntary payment, to recover goods detained, but a compromise proposed by the plaintiffs under special circumstances, and upon good consideration on the part of the defendants, the Commissioners of Customs. Where, as Lord Abinger further points out, the seizure or detention has been for the purpose (however honestly intended) of exacting or compelling payment of money, there has been no consideration for the payment, and it may be recovered by action. The Court intimated at the hearing that it entertained no doubt that, if the giving the guarantee was without consideration, so also was the payment under it.

(1) 2 W.W. & A'B. (L.) 176.

(3) p. 294.

(2) 8 Ex. 625; 22 L.J. Ex. 225.

(4) 3 M. & W. 633; L.J. Ex. 234.

For these reasons we are of opinion that the judgment appealed against was right, and that the appeal should be dismissed, with costs on the middle scale.

Appeal dismissed with costs. Solicitors for the appellant: Findlay, Dalziell, & Co. (Wellington):

Solicitors for the respondents: Brown & Dean (Wellington).

C.A.

1901.

THE KING

v.

BANNATYNE & Co.

S.C.

IN BANCO.

In re RUSH, RUSH v. RUSH AND OTHERS. "The Testator's Family Maintenance Act, 1900"-Widow-Adult Children- WELLINGTON. Right to Relief-Preference-Purchase of Annuity for Widow.

"The Testator's Family Maintenance Act, 1900," should be treated, in practice, at all events, as being primarily for the benefit of those who would have had a claim against the testator if he were living, and such persons are entitled to preference over those who may possibly come within the statute, but who would have had no claim against the testator if he were living.

The position of a testator's widow differs from that of his adult children, both in morals and in law. During his lifetime he was bound to support his wife in a manner suitable to their station in life. and that although she might not be destitute; but he was not under any legal obligation to support his adult children unless they came within the provisions of "The Destitute Persons Act, 1894."

A testator left an estate of at least £1,500 net. He left a widow, and six adult children by a former marriage, him surviving. Of the latter, the youngest was forty years of age; two were sons, and four daughters; three of the daughters were married, one a widow; several of them were in poor circumstances, but none were destitute. The testator's widow was sixty-one years of age, and there was medical evidence that she was not capable of earning her living by manual labour. She was possessed of about £95, but had no other property. The only provision made for her by the will was a legacy of £200. On an application by her under 'The Testator's Family Maintenance Act, 1900,"

Held, that an order ought to be made that an annuity of £52 a year, payable to her during her life, be purchased out of the estate of the testator, she abandoning her claim to the legacy of £200.

SUMMONS by the widow of a testator for an order that

provision be made for her out of the estate of the testator, under "The Testator's Family Maintenance Act, 1900." The facts of the case will be found fully stated in the judgment.

1901.

April 30;

May 2.

EDWARDS, J.