or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband, or wife; (2) unlawful detention of the property of any such person; or (3) confinement of such person, lawful in form, but fraudulently obtained, or fraudulently made unjustly harrassing or oppressive;" and "menace consists in a threat (1) of such duress as is specified in subdivisions one and three of the last section; (2) of unlawful and violent injury to the person or property of any such person as is specified in the last section; or (3) of injury to the character of any such person." So also, in the civil code of Georgia, "duress consists in any illegal imprisonment, or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means amounting to or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will." The common-law doctrine of duress divided it into duress of imprisonment and duress per minas, the latter being the case where a person is threatened with loss of life or limb or with mayhem or with imprisonment, and it is said that this doctrine is still in force in Missouri, except in so far as it has been modified by the decisions of the courts, and that, in its extensive sense, duress is the degree of constraint which is sufficient to affect the mind of a person of ordinary firmness, and includes the condition of mind, produced by the wrongful conduct of another, rendering a person incompetent to contract with the exercise of his free will power.*

8

It appears, therefore, that, to constitute duress, the means resorted to must for the time being deprive the complaining

improper pressure that the will is overcome and an involuntary act or contract induced; it is a condition of mind produced by an unlawful intimidation, and resulting in the doing of an act which is not required by law. O'Toole v. Lamson, 41 App. D. C. 276.

2 Civ. Code Cal., §§ 1569, 1570; Rev. Civ. Code Mont., §§ 4975, 4976; Rev. Civ. Code N. Dak., §§ 5290, 5291; Rev. Civ. Code S. Dak., §§ 1198, 1199; Rev. Laws Okl. 1910, §§ 900, 901.

3 Civ. Code Ga. 1910, § 4116. This definition, it is said, includes any conduct overpowering the will and coercing or restraining the performance of an act which otherwise would not have been performed. Dorsey v. Bryans, 143 Ga. 186, 84 S. E. 467.

4 Wood v. Kansas City Home Telephone Co., 223 Mo. 537, 123 S.

party of freedom of choice, so that his act is compelled by the dominant will of another," or he must be deprived of his free will and understanding, so that the contract in question is not his free and voluntary act, or, as it is otherwise expressed, the person affected must be bereft of that quality of mind which is essential to the making of a valid and binding contract." In some of the cases it is said that duress is a mental condition of the party practised upon, such, namely, as to render him incompetent to exercise his free will and choice. Subjectively considered, it may be so. But it seems more correct to regard the external act—the constraint, compulsion, or threat-as constituting the duress, and the psychological state as resulting from it. According to the United States Supreme Court, to constitute coercion or duress which will be regarded as sufficient to make a payment involuntary, "there must be some threatened or actual exercise of power, possessed or believed to be possessed by the party exacting or receiving the payment, over the person or property of another, from which the latter has no other means of immediate relief than by making the payment."

Whatever may be the means of coercion employed, they must come from without and be exerted by some specific person. One may yield to the pressure of circumstances, or take some course which is repugnant to him, in order to extricate himself from a predicament, but this does not constitute duress if no constraint is exerted by the person benefiting by his action. Thus, where a person who was accused of theft went with the person alleged to have been robbed and others to a private place to discuss the matter, and there the accused man, though asserting his innocence, admitted that the evidence was strong enough to send him to the penitentiary, and gave his note in settlement, saying that he did so to save his family from disgrace, but no

Van Alstine v. McAldon, 141 Ill. App. 27.

• Nebraska Mut. Bond Ass'n v. Klee, 70 Neb. 383, 97 N. W. 476; Shriver v. McCann (Tex. Civ. App.) 155 S. W. 317.

7 Piekenbrock v. Smith, 43 Okl. 585, 143 Pac. 675.

8 Batavian Bank v. North, 114 Wis. 637, 90 N. W. 1016.

• Radich v. Hutchins, 95 U. S. 210, 24 L. Ed. 409.

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threats were used by the payee of the note, who, on the contrary, told the maker that he did not intend to prosecute him, it was held that the settlement was not obtained by duress.10 And again, the fact that money is paid under protest does not make the payment a compulsory one, even though the party may be under no legal obligation to pay.11 And a written contract cannot be set aside on the ground of duress merely because the one party was reluctant to execute it, while the other insisted on it.12 So, a grantor's desire to please another by making the conveyance attacked, resulting from long association, affection, or gratitude, does not constitute coercion.18 But it should be observed that not only is a direct promise void if made under duress and an illegal arrest, but so also is an admission thus made of a former promise, and the jury cannot inquire whether such admission was made because it was true or because the party was under duress.14

§ 222. Same; Illegality of Demand.—It is also an essential part of the definition of duress that either the means of coercion employed should have been unlawful, or the demand to be enforced or the benefit to be gained by the person exerting the pressure should have been illegal, in the sense that the law would not, by its ordinary processes, have compelled the coerced party to do what he did. Thus, where one, having in his possession property of another, demands as a condition of its restoration, the payment of a sum for which he is legally entitled to a lien from the owner, the latter cannot be said to have made the payment under duress.15 So, duress by imprisonment will be no defense if the contract procured thereby is a just and equitable one, and one which the defendant was bound to comply with, having derived benefits from it.16 And a deed executed in obedience to a valid decree of a court is not given under

10 Roloson v. De Hart, 134 Mo. App. 633, 114 S. W. 1122.

11 Union Ins. Co. v. City of Allegheny, 101 Pa. 250.

12 Andrews v. Connolly (C. C.) 145 Fed. 43.

18 Nelson v. Wiggins, 172 Mich. 191, 137 N. W. 623.

14 Tilley v. Damon, 11 Cush. (Mass.) 247.

15 In re Meyer (D. C.) 106 Fed. 828.

16 Diller v. Johnson, 37 Tex. 47.

duress.17 But it was held in Texas that the order of a military commander in time of war, after martial law has been declared, requiring an act to be performed by a citizen which is contrary to his wish, constitutes duress, although no threats or demonstrations of violence are used at the time the act is performed.18

§ 223. Same; Duress as Efficient Cause of Action Taken.-To establish duress as ground for the avoidance of a contract, conveyance, or other act, it is not alone sufficient to show the exertion of pressure by threats or even by physical compulsion, but it must also clearly appear that the force or threats employed actually subjugated the mind and will of the person against whom they were directed, and were thus the sole and efficient cause of the action which he took.19 Even the fact of an unlawful restraint of the person does not give rise to a necessary conclusion that his will was coerced, especially, it is said, where the party is suffered to go at large, and has every assurance that the restraint can only subject him to a little inconvenience.20 It is so also with threats. In one of the cases, where the plaintiff had accomplished the seduction of the defendant under a promise of marriage, and she became pregnant, it was held that the presence of her father at the solemnization of a marriage between them, carrying two loaded pistols and threatening that if the plaintiff did not marry his daughter there would be trouble, did not establish duress sufficient to avoid the marriage, taking into view the fact that the plaintiff was not a boy, but a man of mature age, the situation in which he was placed, the moral obligation he was under to marry the defendant and legitimize his unborn child, and the fact that he showed himself to be defiant of the father and his pistols, and did not consent to the marriage until different persons had made an appeal to him

17 Eldridge v. Trustees of Schools, 111 Ill. 576.

18 Olivari v. Menger, 39 Tex. 76.

19 Sternback v. Friedman, 23 Misc. Rep. 173, 50 N. Y. Supp. 1025; Feller v. Green, 26 Mich. 70; Stone v. Weiller, 57 Hun, 588, 10 N. Y. Supp. 828. So also, by the statute law in Georgia, one alleging duress must show that it "actually induced him to do an act con. trary to his free will." Civ. Code Ga. 1910, § 4116.

20 Feller v. Green, 26 Mich. 70.

on the ground of justice and humanity, asking him to do the part of an honorable man.21 And it is a general rule that a transaction cannot be held to have been induced by duress, notwithstanding any threats which may have been made, where the party had and took an opportunity for reflection and for making up his mind, and where he consulted with others and had the benefit of their advice, especially where he was advised by his counsel.22 In a case in Illinois, a man executed a deed after having been threatened with arrest, treated with personal violence, and menaced with a pistol, but this occurred some time before the deed was signed, and meanwhile a disinterested third person had come into the place and was consulted by the grantor as to the propriety of executing the deed, and it was held that there was no such duress as would avoid the deed.23

The lapse of an interval of time between the making of a threat and the performance of the act demanded is a circumstance which should be taken into account in considering whether or not the one was the controlling cause of the other, but it is not determinative of the question one way or the other. On the one hand, the state of terror created in the mind by a threat of really serious harm may continue long after the utterance of the menace. This depends chiefly on the threatened person's belief in the continued power and continued purpose of the other to carry his threat into execution, and on the continued existence of the state of affairs which makes such execution possible. Thus, even though a wife has the benefit of the presence and protection of her husband at the time she actually signs a conveyance, it may still be voidable as extorted from her by duress, if, at the time of execution, she still continues in a state of terror and anxiety induced by threats previously made to her.24 But on the other hand, however much a

21 Meredith v. Meredith, 79 Mo. App. 636.

22 Wolff v. Bluhm, 95 Wis. 257, 70 N. W. 73, 60 Am. St. Rep. 115; Fred Rueping Leather Co. v. Watke, 135 Wis. 616, 116 N. W. 174; Walla Walla Fire Ins. Co. v. Spencer, 52 Wash. 369, 100 Pac. 741; Hagan v. Waldo, 168 Ill. 646, 48 N. E. 89.

23 Rendleman v. Rendleman, 156 Ill. 568, 41 N. E. 223.

24 Nebraska Central B. & L. Ass'n v. McCandless, 83 Neb. 536, 120 N. W. 134. Where the grantor's wife executed a deed under coercion