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Lord Reading C.J. had observed as follows :

"Upon the second head of claim the plaintiff asserts that he paid the money not voluntarily but under the pressure of actual or threatened seizure of his goods, and that he is therefore entitled to recover it as money had any received. If the facts proved support this assertion the plaintiff would, in my opinion, be entitled to succeed in this action.

If a person with knowledge of the facts eyes money, which he is not in law bound to pay, and in circumstances implying that he is paying it voluntarily to close the transaction, he cannot recover it. Such a payment is in law like a girl, and the transaction cannot be reopened. 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 any received. The money is paid not under duress in the strict sense of the term, as that implies duress of person, but under the pressure of seizure of detention of goods which is analogous to that of duress. Payment under such pressure establishes that the payment is not made voluntarily to close the transaction (per Lord Abinger C.B. and per Parke B in Atlee v. Bckhouse (3 M&W 633, 646, 650). The payment is made for the purpose of averting a treatment evil and is made not with the intention of giving up a right but under immediate necessity and with the intention of preserving the right to dispute the legality of the demand (per Tindal C.J. in Valpy v. Manley (I.C.B. 564, 602, 603). There are numerous instances in the books of successful claims in this form of action to recover money paid to relieve goods from seizure. Other familiar instances are cases such as Parker v. Great Ry. Co (7 Man & G. 253), where the money was paid to the railway company under protest in order to induce them to carry goods which they were refusing to carry except at rates in excess of those they were legally entitled to demand. These payments were made throughout a period of twelve months, always accompanied by the assertion that they were made under protest, ant it was held that the plaintiffs were entitled to recover the excess payments as money had and received, on the ground that the payments were made under the compulsion of urgent and pressing necessity. That case was approved in Great Western Ry. Co. v. Sutton (L.R. 4 H.L. 226, 249), when the judges were summoned to the House of Lords to give their opinion. Wiles J., in stating his view of the law, said : "when a man pays more than he is bound to do by law for the performance of a duty which the law says is owned to him for nothing or for less than he has paid, there is a compulsion or conclusion in respect of which he is entitled to recover the excess by condition indebiti, or action for money hand and received. This is every day's practice as to excess freight". That is a clear and accurate statement in accordance with the views expressed by Blackburn J. in the same case and adopted by the House of Lords. It treats such claims made in this form of action as matters of ordinary practice and beyond discussion. (See also per Lord Chelmsford in Lancashire and Yorkshire Ry. Co. v. Gidlow (LR 7 II. L. 517, 527).

This principle of law is so well settled that it cannot be challenged, and I find nothing in Brisbane v. Dacres (5 Taunt, 143), to the contrary. Indeed the general proposition of law is not disputed; but it was contended, and the learned judge found, that the plaintiff had not brought himself within it, mainly because, (1) the payments were not accompanied by a declaration or assertion to the defendant that the plaintiff did not intend to give up his right to recover the money, and (2) the protests for a period of years had degenerated into a sort of grumbling acquiescence and were in effective. I doubt whether Rowlatt, J. intended to find that there must be anything in the shape of an express notice or declaration to the defendant of the plaintiff's intention to keep alive his right to recover. It is clear, and was indeed admitted at the Bar, that no express words are necessary and that the circumstances attending the payments and the conduct of the plaintiff when making them may be a sufficient indication to the defendant that the payments were not made with the intention of closing the transactions. I do not think that the mere fact of a payment under protest would be sufficient on entitle the plaintiff to succeed; but I think that it affords some evidence, when accompanied by other circumstances, that the payment was not voluntarily made to end the matter.

At the beginning of the dispute there was a definite assertion of right by the defendant to recover the tolls and that a denial of that right by the plaintiff followed by an actual seizure of goods of the plaintiff. The plaintiff upon the advice of his solicitor, then made the payment under protest, Subsequently, and during the long period of years whenever the plaintiff challenged the defendant's right, there was seizure or a threat of the plaintiff goods. A threat intended to be followed be seizure is equivalent for this purpose to a seizure. (See per Creswell J. in Valpy v. Manley). Disputes arose both as to the right to exact the tolls and as to the amount in particular cases. Notable instances occurred in 1902, 1903, 1905 and 1909. The disputes always ended either in seizure or a threat to seize, and the plaintiff then paid under protest. The defendant from the first asserted his right to recover payment of the tolls by a distress levied upon the plaintiff's goods, and if the defendant was legally entitled to the tolls he could enforce payment by these means. It appears to me upon the evidence that the plaintiff throughout the whole period of years believed that if he did not pay his goods would be seized. No doubt, as time progressed, and the protests were frequently repeated, they were at times made by the plaintiff's servants to the defendant's servants in a laughing and jocular manner. The plaintiff had, however, given definite instructions that payments were never to be made except under protest, and these instructions that payments were never be made except under protest, and these instruction were invariably followed. I cannot think that the protest lost their effectiveness by reason of the length of period during which they were persistently made, or because they were at times accompanied by a laugh or jesst. The persistence during so long a period serves rather to show that the plaintiff would not acquiesce in the defendant's demands.