sertion that a warrant was outstanding or that the prosecution had been begun, false in fact but believed by the threatened party, might be held to fulfill this condition, yet a mere menace or promise of future prosecution, not accompanied by any such statement, and with nothing to show that the person was in imminent and immediate danger of arrest, would certainly not be sufficient.185 Thus, in a case in Pennsylvania, friends of a debtor who had obtained goods by false representations were informed that creditors in a foreign state were threatening to resort to criminal proceedings if they were not secured, and the friends informed the debtor of this threat, and advised him to assign certain claims to those creditors, which he did, but it was held that such assignment was not void as being made under duress, because, as the court pointed out, there was no arrest or imprisonment, no process for his arrest issued, no prosecution for any criminal offense instituted, no officer of the law ready to make an arrest, and no threats made directly by any person to the party affected. 186 So, a note given to an agent by his principal, in settlement of the agent's claims, is not void as obtained by duress, though the agent threatened that if the note was not executed he would give information to the district attorney which would aid in a pending prosecution against the principal.187 But a threat of arrest made by a person representing himself to be an officer of justice and exhibiting a paper purporting to be a warrant constitutes duress, where the party threatened is actually intimidated by it, the purpose being merely to force payment of a debt.188 And a warrant addressed to an officer of another county or district than that in which the court has jurisdiction is not lawful process, so that an arrest made under it is illegal and constitutes duress with reference to any contract or payment extorted from the debtor by means of it."

189

Some of the foregoing cases show that the threat need not be made to the victim directly by the person who is to

185 Buchanan v. Sahlein, 9 Mo. App. 552.

186 Phillips v. Henry, 160 Pa. 24, 28 Atl. 477, 40 Am. St. Rep. 706. 187 Barger v. Farnham, 130 Mich. 487, 90 N. W. 281.,

188 Coffelt v. Wise, 62 Ind. 451.

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

benefit by the deed or contract to be extorted from him, but it is sufficient if it is made by an officer at the instigation of such person. There are also a few cases in which the actual threat was made by the judge of the court in which the threatened prosecution would be tried, as where, by the procurement of one person, he sends word to another that, unless he complies with the former's demand upon him, he will be sent to prison. The pressure exerted by such a threat has been held to be duress invalidating the resultant transaction.190

§ 235. Prosecution of Husband, Wife, or Relatives.Duress may be practised upon a person by threats of a criminal prosecution against the husband or wife of such person, or against a near relative, such as a parent or child, and if the dread, anxiety, and fear of disgrace excited by such threats are so potent as to overcome the free will and choice of the person affected, such duress may be pleaded to invalidate any contract, conveyance, or security extorted from him by means of it.1 191 Still more, of course, the actual arrest and imprisonment of a husband, wife, parent, or child is duress when used as a means of coercing a relative into making a contract, giving a deed or security, or agreeing to a settlement.102 This subject is dealt with in the codes of

190 Harshaw v. Dobson, 64 N. C. 384. And see Bogle v. Hammons, 2 Heisk. (Tenn.) 136.

191 Embry v. Adams (Ala.) 68 South. 20, L. R. A. 1915D, 1118; Martin v. Evans, 163 Ala. 657, 50 South. 997; Sharon v. Gager, 46 Conn. 189; Merchant v. Cook, 21 D. C. (10 Mackey) 145; Mayer v. Oldham, 32 Ill. App. 233; Heaton v. Norton County State Bank, 59 Kan. 281, 52 Pac. 876; Weiser v. Welch, 112 Mich. 134, 70 N. W. 438; Lewis v. Doyle, 182 Mich. 141, 148 N. W. 407; Leflore County v. Allen, 80 Miss. 298, 31 South. 815; Ryan v. Strop, 253 Mo. 1, 161 S. W. 700; Eadie v. Slimmon, 26 N. Y. 9, 82 Am. Dec. 395; Adams v. Irving Nat. Bank, 116 N. Y. 606, 23 N. E. 7, 6 L. R. A. 491, 15 Am. St. Rep. 447; Stowell v. American Co-Operative Relief Ass'n, 52 Hun, 613, 5 N. Y. Supp. 233; Foley v. Greene, 14 R. I. 618, 51 Am. Rep. 419; Medearis v. Granberry, 38 Tex. Civ. App. 187, 84 S. W. 1070; Gorringe v. Reed, 23 Utah, 120, 63 Pac. 902, 90 Am. St. Rep. 692; Hinsdill v. White, 34 Vt. 558; City Nat. Bank v. Kusworm, 88 Wis. 188, 59 N. W. 564, 26 L. R. A. 48, 43 Am. St. Rep. 880.

192 Bailey v. Devine, 123 Ga. 653, 51 S. E. 603, 107 Am. St. Rep. 153; Bianchi v. Leon, 63 Misc. Rep. 73, 118 N. Y. Supp. 386. per contra, Simms v. Barefoot's Ex'rs, 3 N. C. 402.

BLACK RESC.-40

See,

some of the states, by providing that duress shall consist in the actual or threatened confinement either of the person coerced "or of the husband or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband or wife," provided that the confinement is either unlawful or if lawful in form, was "fraudulently obtained or fraudulently made unjustly harassing or oppressive." 193

Whether this rule should be extended to other relationships, not so close as that of husband and wife or parent and child, is not very clear. But it may be stated with some confidence that the general tendency is to lay less stress upon the degree of kinship between the parties affected, and more upon the actual effect of the threats made in exciting alarm, anxiety, and distress in the mind of the person victimized. It should be remembered that the rule of the common law was that duress was a strictly personal plea, which could be advanced only by the person upon whom it was practised, that is, against whom the threats were directed. An exception to this rule was allowed in the case of husband and wife, but chiefly on the ground that they were regarded in law as one person. A further exception in the case of parent and child can be traced far back in the common law, but it was always admitted with considerable hesitation. But it is both the function and the tendency of equity to liberalize the common law and to extend the beneficent features of it according to their spirit rather than to adhere narrowly to the letter of the law. On the present question, therefore, the exact degree of relationship would appear to be a matter of secondary importance. The purpose of the rule would be satisfied if there were shown a habit of dependence and reliance on the one side and of help and protection on the other, and the existence of an affection so strong as to prompt the one person to make almost any sacrifice to save the other from pain and shame. Besides, family pride must be taken into account, and also the common feeling that one loses some portion of his own prestige when a kinsman is disgraced. And if the anxiety

193 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.

and dread resulting from all these considerations, when a relative is threatened with criminal prosecution, do actually break down the resistance and overcome the will of the person practised upon, the precise degree of relationship between them would seem to be of very little importance. So far as the few extant authorities go, they support these views. Some of them speak in general terms of allowing the defense of duress in case of a prosecution threatened against a husband, wife, child, "or other near relative." 194 The statutory provisions in some of the states (quoted in the preceding paragraph) extend the defense of duress to the case of such threats made against the husband or wife of the party coerced or an "ancestor, descendant, or adopted child of such party or of his or her wife or husband," which would include the case of grandparents and grandchildren, and of step-sons and daughters, as well as of adoptive children. Also there is a case in Connecticut in which a mortgage was held invalid on account of duress, where the mortgagor (an unmarried woman of advanced age) was practised upon by threats of a criminal prosecution against her nephew.195

In cases of this kind, the question whether the person against whom the prosecution was threatened was guilty or innocent of the alleged crime is immaterial as bearing on the matter of duress.196 On the one hand, though the threat is of a lawful prosecution for a crime actually committed, and though the deed or security given is in settlement of a just debt, it is none the less duress to extort it by playing upon the fears and the affections of a relative.197 As pointed out by the court in New Jersey, it is against equity for a creditor to extort from a parent payment of or

194 International Harvester Co. v. Voboril, 187 Fed. 973, 110 C. C. A. 311.

195 Sharon v. Gager, 46 Conn. 189.

196 Heaton v. Norton County State Bank, 59 Kan. 281, 52 Pac. 876; Williamson-Halsell-Frazier Co. v. Ackerman, 77 Kan. 502, 94 Pac. 807, 20 L. R. A. (N. S.) 484.

197 Giddings v. Iowa Sav. Bank, 104 Iowa, 676, 74 N. W. 21; Heaton v. Norton County State Bank, 5 Kan. App. 498, 47 Pac. 576; Hensinger v. Dyer, 147 Mo. 219, 48 S. W. 912. But see Bianchi v. Leon, 138 App. Div. 215, 122 N. Y. Supp. 1004.

security for the debt of a son, for which the parent is not responsible, by threats of prosecuting the son criminally, though an imprisonment of the son thereunder would be lawful, and contracts of the parent for such payment or security, executed under circumstances created by the creditor which deprive the parent of the freedom and power of deliberation necessary to validate transactions, may be avoided in equity as made without consent.198 On the other hand, although no crime has been in fact committed and no prosecution begun, but the charge is wholly false, yet if the contracting party has been so impressed with a sense of imminent danger arising out of the threat and so put in fear as to be deprived of the free will power essential to contractual capacity, the resulting deed, contract, or security may be avoided for duress.199 But the existence of these conditions must be clearly shown, and a transfer of property should not be set aside merely because the defendant threatened to arrest the plaintiff's son, where it is not shown that the plaintiff (a man in the prime of life and not incapacitated in any way) was not a man of ordinary firmness, and on the other hand it appears that the son was present at the time and protested that he was not liable to arrest.200 But where the ground alleged for setting aside a deed is not so much duress of the grantor as that it was executed in pursuance of an agreement to stifle a criminal prosecution against his son, it must be averred and proved that the son had committed a crime.201

If a wife knows that her husband has committed a crime, and, although no threat of prosecuting him has yet been. made, she voluntarily and deliberately executes a deed or a transfer of property in order to secure the silence of those injured by his crime, and from a conviction that such a course is necessary to save the family from disgrace, there

198 Ball v. Ward, 76 N. J. Eq. 8, 74 Atl. 158.

199 International Harvester Co. v. Voboril, 187 Fed. 973, 110 C. C. A. 311; Ball v. Ball, 79 N. J. Eq. 170, 81 Atl. 724, 37 L. R. A. (N. S.) 539; Treadwell v. Torbert, 122 Ala. 297, 25 South. 216; Clement v. Buckley Mercantile Co., 172 Mich. 243, 137 N. W. 657.

200 Sulzner v. Cappeau, Lemley & Miller Co., 238 Pa. 547, 86 Atl.

201 Ball v. Ward, 76 N. J. Eq. 8, 74 Atl. 158.