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for a lawful purpose and on just cause, not accompanied by any severity or impropriety of manner, is not such duress as will avoid a contract or conveyance.162 As remarked by the court in Massachusetts in an early case, duress by imprisonment is where one is restrained of his liberty by an unlawful imprisonment or by a tortious detention thereafter. "If therefore a man, supposing that he has a cause of action against another, by lawful process cause him to be arrested and imprisoned, and the defendant voluntarily execute a deed for his deliverance, he cannot avoid such deed by duress of imprisonment, although in fact the plaintiff had no cause of action. And although the imprisonment be lawful, yet, unless the deed be made freely and voluntarily, it may be avoided by duress. And if the imprisonment be originally lawful, yet if the party obtaining the deed detain the prisoner in prison unlawfully by covin with the jailer, this is a duress which will avoid the deed. It is a sound and correct principle of law that when a man shall falsely, maliciously, and without probable cause sue out a process in form regular and legal to arrest and imprison another, and shall obtain a deed from a party thus arrested to procure his deliverance, such deed may be avoided by duress of imprisonment." 163

To apply these principles, it has been held that an arrest made in Canada, for a debt justly due from the debtor arrested, may constitute duress if it was made regular and lawful in form only by the perjury of the creditor by whom it was procured.104 And so, if one is in jail under a charge of murder, and another threatens to detain him in prison for an indefinite period and prevent a trial from taking place, this will amount to duress by threat of an unlawful imprisonment.165 So, where a young man was arrested on

176 Ind. 389, 96 N. E. 146. A person unlawfully imprisoned, who is induced by his prosecutor to agree not to sue for damages, to obtain his liberty, is not bound by the agreement. Lyons v. Davy-Pocahontas Coal Co. (W. Va.) 84 S. E. 744.

162 Nealley v. Greenough, 25 N. H. 325.

163 Watkins v. Baird, 6 Mass. 506, 4 Am. Dec. 170.

164 Strong v. Grannis, 26 Barb. (N. Y.) 122.

165 Bailey v. Devine, 123 Ga. 653, 51 S. E. 603, 107 Am. St. Rep.

a charge of bastardy which was false, and in order to procure his release consented to marry the prosecuting witness, it was held that such marriage was void.160 But on the other hand, where a man is arrested on a charge of bastardy or of seduction under promise of marriage, which is true, the mere fact that he is in prison when he signs a promise to marry the woman, to provide for the child, or otherwise to settle the case, does not show that it was procured by duress.167

The employment of criminal process to obtain civil redress, and particularly when used as a means of oppression and to extort disadvantageous terms from a party in custody or more than the law allows to be demanded of him, is a misuse of process and a fraud upon the law. And so, although a person is arrested under a legal warrant and by a proper officer, yet if the object of the arrest is to extort money or force the settlement of a mere civil claim, it is a case of false imprisonment, and any release, conveyance, or security procured under the pressure of such a proceeding by the party promoting it is voidable on account of duress. 168 Thus, the commencement of a suit for malicious prosecution, and the arrest of the defendant therein, to coerce a settlement, is an abuse of process which will vitiate the settlement so induced, if the duress was reasonably adequate to overcome the will of the defendant, although the process itself was legal.169 In another case, it appeared that a debtor had arranged a composition with his creditors, but one of them demanded a note and mortgage to secure his debt over and above the amount agreed upon for the general composition. These securities were given, but they were of course void for want of consideration. After the composition had been effected, the creditor demanded of

166 Shoro v. Shoro, 60 Vt. 268, 14 Atl. 177, 6 Am. St. Rep. 118. 167 Jones v. Peterson, 117 Ga. 58, 43 S. E. 417; McCarthy v. Taniska, 84 Conn. 377, 80 Atl. 84.

168 Hackett v. King, 6 Allen (Mass.) 58; Seiber v. Price, 26 Mich. 518; Miller v. Bryden, 34 Mo. App. 602; Phelps v. Zuschlag, 34 Tex. 371; Stebbins v. Niles, 25 Miss. 267; Kavanagh v. Saunders, 8 Me. (8 Greenl.) 422; Holmes v. Hill, 19 Mo. 159; Coveney v. Pattullo, 130 Mich. 275, 89 N. W. 968.

169 Behl v. Schuett, 104 Wis. 76, 80 N. W. 73.

the debtor a re-execution of the note and mortgage, but the debtor, getting the originals into his possession, destroyed them. He was then arrested upon a charge of larceny, and in order to secure his release, gave a new note and mortgage. It was held that they were void, not only for want of consideration, but also because secured by duress.170

On the other hand, though a man is under arrest, it is not duress in law to take advantage of this fact to force a settlement, where that which is demanded and received from him is no more than he is fairly and justly liable for. Where a party is in good faith pursuing legal remedies for the redress of private injuries or protection from public wrongs, and the other assents to a just satisfaction in consideration of a release, this cannot be availed of as duress to avoid his act.171 Thus, where the defendant embezzled the plaintiff's funds, and executed a note in settlement, the plaintiff will be entitled to recover thereon, to the amount embezzled, though the note was executed by the defendant when under arrest.172 So a deed for which full value is given is not necessarily void because the grantor was in jail at the suit of the grantee and was threatened with being kept there indefinitely unless he would sign the deed.173 And where a person who is under arrest and in prison on a criminal charge asks another to become his bail, and in consideration thereof conveys property to him, there being no proof of fraud or oppression, it is not a case of duress, the grantee not having instigated the arrest or procured the imprisonment, and there being nothing unlawful in the imprisonment itself.174

§ 234. Threats of Arrest or Criminal Prosecution.Where a person has committed a crime, a threat to have him arrested and imprisoned will not constitute duress, for it is no more than a statement of intention as to what the party has a lawful right to do, and hence it cannot be pleaded to

170 Wheeler v. Pettyjohn, 14 Okl. 71, 76 Pac. 117.

171 Taylor v. Cottrell, 16 Ill. 93; Grimes v. Briggs, 110 Mass. 446; Taylor v. Blake, 11 Minn. 255 (Gil. 170); Holmes v. Hill, 19 Mo. 159. 172 Largent v. Beard (Tex. Civ. App.) 53 S. W. 90.

173 Mitchell v. Lidgerwood, 50 Wash, 290, 97 Pac. 61. 174 Knobb v. Lindsay, 5 Ohio, 468.

discharge him from liability on a contract, conveyance, or security given to indemnify the person injured by the crime, provided there are no circumstances of fraud or oppression in the case and no offer or attempt to use the process for an unlawful purpose.175 This is the rule established by the general current of the authorities. But there are some decisions maintaining the principle that the only proper subject of inquiry is the effect of a threat upon the will and choice of the party, and that if he was actually coerced into doing something he was unwilling to do, by a threat of criminal prosecution, it constitutes duress, even though he was guilty of the crime alleged.176 And it may be conceded, at any rate, that the threat of prosecution should not be countenanced, even in the case of a guilty person, when used as a means of oppression or extortion, that is, for the purpose of obtaining from him more than is due by way of indemnity or compensation.177

But on the other hand, to threaten a person with arrest and prosecution for a crime which he has not committed is to threaten him with a false accusation and an unlawful imprisonment, and this constitutes duress just as much as would the actual arrest and imprisonment, provided that it really intimidates the person threatened and overcomes his will and freedom of choice; and any consideration given by him under the pressure of such a threat, and in order to escape from it, is voidable for duress.178 Thus, a receipt for

175 Gregor v. Hyde, 62 Fed. 107, 10 C. C. A. 290; Bailey v. Devine, 123 Ga. 653, 51 S. E. 603, 107 Am. St. Rep. 153; Compton v. Bunker Hill Bank, 96 Ill. 301, 36 Am. Rep. 147; Eddy v. Herrin, 17 Me. 338, 35 Am. Dec. 261; Thorn v. Pinkham, 84 Me. 101, 24 Atl. 718, 30 Am. St. Rep. 335; Davis v. Luster, 64 Mo. 43; McCormick Harvesting Mach. Co. v. Miller, 54 Neb. 644, 74 N. W. 1061; Knapp v. Hyde, 60 Barb. (N. Y.) 80; Englert v. Dale, 25 N. D. 587, 142 N. W. 169; Edwards v. Boyle, 37 Okl. 639, 133 Pac. 233; Guinn v. Sumpter Valley Ry. Co., 63 Or. 368, 127 Pac. 987; Fountain v. Bigham, 235 Pa. 35, 84 Atl. 131, Ann. Cas. 1913D, 1185. And see McClelland v. Bullis, 34 Colo. 69, 81 Pac. 771.

176 Wilson v. Calhoun (Iowa) 151 N. W. 1087; Wilbur v. Blanchard, 22 Idaho, 517, 126 Pac. 1069; Hensinger v. Dyer, 147 Mo. 219, 48 S. W. 912. And see Greenwell v. Negley, 31 Ky. Law Rep. 144, 101 S. W. 961.

177 Briggs v. Withey, 24 Mich. 136.

178 Fieg v. Gjurich, 163 Cal. 740, 127 Pac. 49; Kronmeyer v. Buck, 258 Ill. 586, 101 N. E. 935, 45 L. R. A. (N. S.) 1182; Bush v. Brown,

wages due given by plaintiff to defendant, when threatened by the latter with prosecution for embezzlement, of which he was innocent, and without any payment by the defendant, is void for duress.170 And a threat of imprisonment for an offense of which the person threatened is innocent is, as to him, a threat of unlawful imprisonment, even though the person making the threat believed that he was guilty.180

But it should be remembered that it is not, strictly speaking, the threat of criminal prosecution in any case which constitutes duress, but the condition of mind produced thereby. Hence the threat must be of such a nature and made under such circumstances as to constitute a reasonable and adequate cause to control the will of the threatened person, and must have that effect, and the act sought to be avoided must be performed by such person while in that condition.181 A threat of arrest and imprisonment, not followed up by any attempt to put the threat into execution, is not duress,182 and a mere threat to prosecute at some indefinite time in the future would not be duress, particularly if the threatened person knew that the other had no present means of executing it by arresting him, and also if he knew that he had a defense and could make it.183 In fact the rule has been broadly stated that threats of criminal prosecution do not constitute duress such as to invalidate a deed or other instrument, where no warrant has been issued and no proceedings actually commenced,184 and while perhaps an as

49 Ind. 573, 19 Am. Rep. 695; Kennedy v. Roberts, 105 Iowa, 521, 75 N. W. 363; Brant v. Brant, 115 Iowa, 701, 87 N. W. 406; Gard v. Arnold, 157 Mo. 538, 57 S. W. 1035; Springfield Fire & Marine Ins. Co. v. Hull, 51 Ohio St. 270, 37 N. E. 1116, 25 L. R. A. 37; James v. Roberts, 18 Ohio, 548; Landa v. Obert, 5 Tex. Civ. App. 620, 25 S. W. 342. Compare Huston v. Smith, 248 Ill. 396, 94 N. E. 63.

179 Maricle v. Brooks, 51 Hun, 638, 5 N. Y. Supp. 210; Landa v. Obert, 78 Tex. 33, 14 S. W. 297.

180 Giddings v. Iowa Sav. Bank, 104 Iowa, 676, 74 N. W. 21.

181 Wolff v. Bluhm, 95 Wis. 257, 70 N. W. 73, 60 Am. St. Rep. 115; Wilkerson v. Hood, 65 Mo. App. 491; Thorne v. Farrar, 57 Wash. 441, 107 Pac. 347, 27 L. R. A. (N. S.) 385, 135 Am. St. Rep. 995. 182 Simmons v. Mann, 92 N. C. 12.

183 Horton v. Bloedorn, 37 Neb. 666, 56 N. W. 321.

184 Huston v. Smith, 248 Ill. 396, 94 N. E. 63; Higgins v. Brown, 78 Me. 473, 5 Atl. 269; Ingebrigt v. Seattle Taxicab & Transfer Co., 78 Wash. 433, 139 Pac. 188.

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