§ 232. Instituting or Threatening Civil Suits or Foreclosures. It is not unlawful to threaten to do that which one has a perfect legal right to do. Hence duress cannot be predicated upon a threat to institute a suit at law, to issue execution on a judgment, to attach property, to foreclose a lien, or to resort to any other of the ordinary legal remedies, provided there is no abuse of legal process, such as would be involved in the assertion of an entirely groundless claim; and this is true although the execution of the threat would entail special hardship upon the person threatened, or though it is made at a time and under circumstances such as to make it specially injurious to his interests, and though it is only used as a means of forcing a settlement of a dispute. 142 And a threat to bring suit does not constitute duress merely because it will subject the party to costs in case he is defeated,143 or though it is accompanied by a threat that the party to be sued will thereby be "ruined with costs," 144 or though the suit threatened is of such a character that the arrest of the defendant will be a possible and probable incident of it.145 So, it is not unlaw 142 Morton v. Morris, 72 Fed. 392, 18 C. C. A. 611; Atkinson v. Allen, 71 Fed. 58, 17 C. C. A. 570; Davis v. Rice, 88 Ala. 388, 6 South. 751; McClair v. Wilson, 18 Colo. 82, 31 Pac. 502; Miller v. Davis' Estate, 52 Colo. 485, 122 Pac. 793; Perryman v. Pope, 94 Ga. 672, 21 S. E. 715; Snyder v. Braden, 58 Ind. 143; Peckham v. Hendren, 76 Ind. 47; Wilson Sewing Mach. Co. v. Curry, 126 Ind. 161, 25 N. E. 896; Quigley v. Quigley (Iowa) 115 N. W. 1112; United States Banking Co. v. Veale, 84 Kan. 385, 114 Pac. 229, 37 L. R. A. (N. S.) 540; Kiler v. Wohletz, 79 Kan. 716, 101 Pac. 474, L. R. A. 1915B, 11; Ripy Bros. Distilling Co. v. Lillard, 149 Ky. 726, 149 S. W. 1009; New Orleans & N. E. R. Co. v. Louisiana Const. & Imp. Co., 109 La. 13, 33 South. 51, 94 Am. St. Rep. 395; Foster v. Clark, 19 Pick. (Mass.) 329; Morse v. Woodworth, 155 Mass. 233, 27 N. E. 1010, 29 N. E. 525; Perkins v. Trinka, 30 Minn. 241, 15 N. W. 115; Jones v. Houghton, 61 N. H. 51; Evans v. Gale, 18 N. H. 397; Scudder v. Burrows, 7 N. Y., St. Rep. 605; Abelman v. Indelli & Conforti Co., 170 App. Div. 740, 156 N. Y. Supp. 401; Hunt v. Bass, 17 N. C. 292, 24 Am. Dec. 274; Gunter v. Thomas, 36 N. C. 199; Wells v. Barnett, 7 Tex. 584; Walla Walla Fire Ins. Co. v. Spencer, 52 Wash. 369, 100 Pac. 741; Cornwall v. Anderson, 85 Wash. 369, 148 Pac. 1; York v. Hinkle, 80 Wis. 624, 50 N. W. 895, 27 Am. St. Rep. 73. 143 Falvey v. Hennepin County Com'rs, 76 Minn. 257, 79 N. W. 302. 144 Whittaker v. Southwest Virginia Imp. Co., 34 W. Va. 217, 12 S. E. 507. 145 Dunham v. Griswold, 100 N. Y. 224, 3 N. E. 76. ful for a creditor to demand and secure from his debtor a promissory note for a bona fide debt, under a threat of suit if such note is not given, and a note so given cannot be avoided.140 And an adult's promise to pay a debt contracted during his infancy, though made in response to a threat of suit, is not given under duress.147 Again, a contract under seal by which persons who had constructed a dam across a stream without legislative authority, to protect their crops from floods, agreed to the removal of the dam in consideration of its being allowed to remain until the end of the season, cannot be held to have been without consideration or made under duress, where the other parties, who claimed the dam to be unlawful, made no threats except to institute legal proceedings.148 So, a family arrangement for the settlement of an estate cannot be avoided on the ground of duress though it was obtained by the strong insistence of one of the parties, where he made no threat against the others, except that, if they did not accede, he would proceed to administer the estate in the probate court and that, in that case, they would get only what the law allowed them, or that he would "see that they got nothing." For the same reason, a threat to attach property or to levy an execution upon it does not constitute duress.150 And in a case where the plaintiff, believing that the copyright on certain of his plays was being infringed by the defendants, threatened to restrain their production of such a play unless they would pay him a royalty on it, it 9149 146 McClair v. Wilson, 18 Colo. 82, 31 Pac. 502. 149 Burnes v. Burnes (C. C.) 132 Fed. 485. 150 Lehman v. Shackleford, 50 Ala. 437; Waller v. Cralle, 8 B. Mon. (Ky.) 11; Bolln v. Metcalf, 6 Wyo. 1, 42 Pac. 12, 44 Pac. 694, 71 Am. St. Rep. 898. Threats of attaching a tenant's crop for the payment of rent, made by a person who has entered for the purpose of collecting or securing the rent before it is due, and who is accompanied by a constable, but who has no legal process, do not constitute duress. Lehman v. Shackleford, 50 Ala. 437. Where a party is about to be turned out of possession of premises on a writ of habere facias possessionem, a lease signed under an alternative of so doing or a refusal to suspend the execution cannot be said to have been procured by fraud or duress. Pottsville Bank v. Cake, 12 Pa. Super. Ct. 61. was held that defendants' contract to pay the royalty demanded, in consideration that the plaintiff would not sue them, was not invalid for duress.151 Even a threat to throw a debtor into bankruptcy, as a means of securing the payment of a just debt, is not duress.152 But many cases stand on the border line, particularly where the threat of suit, lawful in itself, is accompanied by threats of other action which would be unlawful. Thus one who has purchased stock which proves to be without value, and has obtained from the seller an agreement to take it back and restore his money, clearly has a right to threaten suit as a means of enforcing the agreement. But if he at the same time threatens to tell third persons, with whom the seller is then negotiating for the purchase of like stock, of its want of value and of the breach of the seller's agreement, it may be a question whether he has not overstepped his legal rights. This question arose in a case in New York, and it was held that, as it did not clearly appear that the threats made were not such as the person had a right to make, it could not be said that the settlement was forced by duress.153 A somewhat similar case would arise in the event that an attorney at law should compel the settlement of a disputed claim on terms favorable to himself by threatening suit, and also by the further threat that such a suit would involve the disclosure of confidential communications made to him, which the client would be unwilling to have made public.154 But one who, to gain an unjust advantage, threatens to bring a suit for which no grounds exist in law, is not entitled to the favorable consideration of a court of equity; and notwithstanding the general rules above stated, there are some cases in which the courts have held that a threat of this kind may constitute duress. The elements considered are, first, that the party has no legal right to the benefit or payment which he thus seeks to coerce the other into 151 Hart v. Walsh, 84 Misc. Rep. 421, 146 N. Y. Supp. 235. 152 Barnes v. Stevens, 62 Ind. 226. But the payment of the debt under such circumstances, even under the urgency of the creditor, would constitute an unlawful preference, on which a petition in bankruptcy might be founded. See Black, Bankruptcy, § 602. 153 McCammon v. Shantz, 26 Misc. Rep. 476, 57 N. Y. Supp. 515. 154 Dyrenforth v. Palmer Pneumatic Tyre Co., 240 Ill. 25, 88 N. E. granting; second, that the threatened proceedings would cause some special trouble or embarrassment to the person threatened; and third, that the threat was actually effective in compelling him to do what was demanded of him. Thus, a threat to institute receivership proceedings has been held equivalent to duress in a case where there was no legal ground for such a suit, where the payment extorted by means of it was not justly due, and where the institution of the suit would have been ruinous to the credit of the party threatened and of the corporation which he was supporting.155 So where a person, absent from home at the time, is sued on a contract made by a firm, on the allegation that he is a member of it, when in fact he is not, as the plaintiff well knows, and gives a note for the amount to gain time and avoid the suit, it is given under duress.156 And the same rule has been applied in cases where the threat was to file and enforce a mechanic's lien on a house, where nothing for which a lien could be claimed was due from the owner of the premises, but he was deceived into supposing that the claim might be effective.157 And in any event, it seems reasonable to confine the general rule to cases where the prosecution threatened is one of the ordinary and usual methods of seeking redress in the courts. A threat to put a person under guardianship as a lunatic or a spendthrift, or to begin proceedings to have him declared mentally incompetent, is of a different nature altogether. On account of the publicity, mortification, and anxiety attending such a proceeding, it is very probable that the threat of it would constitute a very effective kind of duress, when applied to the kind of person against whom it might plausibly be employed, that is to say, an aged and infirm person or one of weak will and unregulated impulses. And the courts have not hesitated to set aside contracts and conveyances thus extorted from such persons." 158 155 Rose v. Owen, 42 Ind. App. 137, 85 N. E. 129. 156 Mulholland v. Bartlett, 74 Ill. 58. 157 Ward v. Baker (Tex. Civ. App.) 135 S. W. 620; Gates v. Dundon (City Ct.) 18 N. Y. Supp. 149. 158 Foote v. De Poy, 106 Am. St. Rep. 365; 47 L. R. A. (N. S.) 475; 126 Iowa, 366, 102 N. W. 112, 68 L. R. A. 302, Hogan v. Leeper, 37 Okl. 655, 133 Pac. 190, Gill's Trustee v. Gill (Ky.) 124 S. W. 875. When one person holds a valid mortgage on the land or chattels of another, which is past due, there is nothing unlawful in his threatening to foreclose it, and if he employs such a threat as a means of compelling the mortgagor to pay what is claimed to be due, or to give a new mortgage, to renew overdue paper, to sell a part of the land at a price offered, or to do any other act not unlawful in itself, there is no legal duress in the transaction.150 § 233. Duress of Imprisonment.-The mere fact that a person is under arrest and in prison at the time he makes a payment or signs a note, bond, or deed, even though such instrument relates to the subject in respect to which he is prosecuted, is not enough to show that his act was procured by duress. A man may retain his freedom of will and of choice in a business matter, though his body is under restraint. The law does not recognize any inevitable inference of coercion from the sole fact of imprisonment.160 To constitute duress of imprisonment, it must be shown that there was a restraint of the person under (1) an arrest for an improper purpose without just cause; or (2) an arrest for a just cause but without lawful authority; or (3) an arrest for a just cause but for an unlawful purpose such as to constitute an abuse of process, though under a lawful writ; or (4) that unnecessary harshness and oppression was practised upon the prisoner or that he was tortiously detained after being entitled to his liberty.161 A legal arrest, 159 Hart v. Strong, 183 Ill. 349, 55 N. E. 629; Stout v. Judd, 10 Kan. App. 579, 63 Pac. 662; Nutting v. McCutcheon, 5 Minn. 382 (Gil. 310); Martin v. New Rochelle Water Co., 11 App. Div. 177, 42 N. Y. Supp. 893; F. B. Collins Inv. Co. v. Easley, 44 Okl. 429, 144 Pac. 1072; Pease v. Francis, 25 R. I. 226, 55 Atl. 686; Shuck v. Interstate B. & L. Ass'n, 63 S. C. 134, 41 S. E. 28; Ward v. Baker (Tex. Civ. App.) 135 S. W. 620; Drew v. Bouffleur, 69 Wash. 610, 125 Pac. 947. 160 Heaps v. Dunham, 95 Ill. 583; Feller v. Green, 26 Mich. 70. 161 Brown v. Pierce, 7 Wall. 205, 19 L. Ed. 134; Baker v. Morton, 12 Wall. 150, 20 L. Ed. 262; Fillman v. Ryon, 168 Pa. 484, 32 Atl. 89; Morrill v. Nightingale, 93 Cal. 452, 28 Pac. 1068, 27 Am. St. Rep. 207; Meacham v. Town of Newport, 70 Vt. 67, 39 Atl. 631; Sanford v. Sornborger, 26 Neb. 295, 41 N. W. 1102; Phelps v. Zuschlag, 34 Tex. 371; Soule v. Bonney, 37 Me. 128; Bates v. Butler, 46 Me. 387; Shaw v. Spooner, 9 N. H. 197, 32 Am. Dec. 348; Stouffer v. Latshaw, 2 Watts (Pa.) 165, 27 Am. Dec. 297; Harrison Tp. v. Addison, |