68 Pa. St. 486, it is said that in civil cases the rule as to duress per minas has a broader application at the present day than formerly. Where a party has the property of another in his power, so as to enable him to exert his control over it to the prejudice of the owner, a threat to use this control may be in the nature of the common-law duress per minas, and enable the person threatened with this pernicious control to avoid a bond or note obtained without consideration, by means of such threats. The constraint that takes away free agency and destroys the power of withholding assent to a contract must be one that is imminent and without immediate means of protection. and such as would operate on the mind of a person of reasonable firmness. As it is expressed in Astley v. Reynolds, I Strange, 915, the rule volunti non fit injuria is applied only "where the party had his freedom of exercising his will." Motz v. Mitchell, 91 Pa. St. 114. The same general principle is also recognized in Colwell v. Peden, 3 Watts (Pa.), 327: Foshay v. Ferguson, 5 Hill (N. Y.), 154; Sasportas v. Jennings, 1 Bay (S. Car.), 470; Collins v. Westbury, 2 Bay (S. Car.),

211.

Menaces which induce a fear of life, of mayhem, or of imprisonment, may avoid a deed; but a menace to commit a battery, to burn a house, or spoil goods, is not sufficient. Edwards v. Handley, Hardin (Ky.), 602; s. c., 3 Am. Dec. 745.

Whether duress can be predicated of compulsion to discharge a legal duty, is a question upon which the cases differ. The following cases hold that it can: Taylor v. Jaques, 106 Mass. 291; Osborn v. Robbins. 36 N. Y. 365; Phelps v. Zuschlag, 34 Tex. 371. Contra: Knapp v. Hyde, 60 Barb. (N. Y.) 80; Shepherd v. Watrous, 3 Caines (N. Y.), 168; Eddy v. Herrin, 17 Me. 338; Crowell v. Gleason, 10 Me. 325; Clark v. Turnbull, 47 N. J. L. 265; s. c., 54 Am. Rep. 157; Stouffer v. Latshaw, 2 Watts (Pa.), 167; Alexander v. Pierce, 10 N. H. 494; Vane v. Williams. 50 Conn. 348; State v. Davis, 79 N. Car. 603; Gresham v. Landens, Ga. Dec. (pt. 2) 149; Meek v. Alkinson, I Bailey (S. Car.), 84; s. c., 19 Am. Dec. 653; Dickerman v. Lord, 21 Iowa, 338; Green v. Scranage, 19 Iowa, 461; Hatter v. Greenlee, I Port. (Ala.) 222; s. c., 26 Am. Dec. 370; Diller v. Johnson, 37 Tex.47. There is duress of imprisonment sufficient to invalidate acts done thereby where an arrest legal in its inception has been followed by maltreatment of the prisoner. Hatter v. Greenlee, I Port. (Ala.) 222; s. c., 26 Am. Dec. 370.

The person against whom the redress is sought must be a party to the act of duress. Talley v. Robinson, 22 Gratt. (Va.) 888. See Green v. Scranage, 19 Iowa, 461; Jones v. Rogers, 36 Ga. 157; Lester v. Union Mfg. Co., 1 Hun (N. Y.), 288; Humphrey v. Humphrey, 79 N. Car. 396. Compare Mann v. Lewis, 3 W. Va. 215; Bogle v. Hammons, 2 Heisk. (Tenn.) 136; Weatherspoon v. Woodey, 5 Coldw. (Tenn.) 149; Olivari v. Menger, 39 Tex. 76.

The action for redress must be brought within a reasonable time. Murphy v. Paynter, Dill. (U. S.) 333. See Doolittle v. McCullough. 7 Ohio St. 299; Lyon v. Waldo, 36 Mich. 345.

The illegal demand must be accompanied by the apparent power, at least, to carry the threat of enforcement into immediate execution. Vick v. Shinn (Ark.), 4 S. W. Rep. 60; Ligonier v. Ackerman, 46 Ind. 552; Brumagim v. Tillinghast, 18 Cal. 265.

Mere advice, direction, influence, and persuasion_do not constitute duress. Barrett v. French, I Conn. 354; s. c., 6 Am. Dec. 241.

Threats to commit suicide will not constitute duress. Metropolitan L. Ins. Co. v. Meeker, 85 N. Y. 614; Wright v Remington, 41 N. J. L. 48.

A written assignment of personal property from A to B as agent, authorizing B to sell the property to C at a price therein named, to be paid by them to the workmen and creditors of A, obtained by threats of personal violence by the workmen, is voidable for duress. Doolittle v. McCullough, 7 Ohio St. 229.

Where a seaman is induced to assent to his discharge, upon payment of a nominal sum, from just apprehension of future ill-treatment, arising from the misconduct of the master, such assent is given under a species of duress, and is no bar to a recovery of the amount actually due to him at the time of his discharge. Bates v. Seabury, 1 Sprague (U. S.), 433.

Where no Duress of Person or Goods.In West Va. Trans. Co. v. Sweetzer, 25 W. Va. 434; s. c., 22 Am. & Eng. R. R. Cas. 469, the court said: "Some have said that, to entitle any one to recover back money which has been paid on an unjust demand, there must be either duress of one's person or duress of his goods. But clearly there are circumstances in which a person may be placed where he would have much less freedom of will in making a payment on an unjust demand than he would have because of a duress of his goods; and accordingly

there are very many cases to be found in the books where a party paying an unjust demand has been allowed to recover it back as paid on compulsion, though there was no duress of either his person or of his goods, because it was obvious that the payments were made involuntarily and under so heavy a pressure as to make the payments not only involuntary, but really compulsory.

Some of these cases are based on the peculiar circumstances of the case, and no rule of law could well be deduced from them; and others, which are of more frequent occurrence, and from which a rule might be deduced, are cases in which the authorities differ. Thus, in Massachusetts it has been said that, when the payment of money has been made upon an illegal demand by one who has authority to levy upon the property of the person upon whom such demand is made, and by a sale of property to satisfy and discharge such claim, and when payment is made upon such demand to prevent such seizure and sale of property, the payment is compulsory." Boston & S. Glass Co. v. Boston, 4 Metc. (Mass.) 181; Amesbury W. & C. Mfg. Co. v. Amesbury, 17 Mass. 461; Preston v. Boston, 12 Pick. (Mass.) 7. These statements in these Massachuseits cases, or the doctrine stated in them. has received considerable countenance from cases decided elsewhere. Mariposa Co. v. Bowman, Deady (U.S.), 228 Hendy v. Soule, Deady (U. S.), 400; Erskine v. Vanarsdale, 15 Wall. (U. S.) 76; Harvey v. Olney, 42 Ill. 336; Bradford 2. Chicago, 25 Ill. 411; Wiley v. Parmer, 14 Ala. 627; Crutchfield v. Wood, 16 Ala. 702; Cahaba v. Barnett, 34 Ala. 407; Tuttle v. Everett, 51 Miss. 27; First National Bank v. Watkins, 21 Mich. 483; Atwell v. Zeluff, 26 Mich. 118; McKee v. Campbell, 27 Mich. 500.

"On the other hand, it was held in Smith v. Redfield, 27 Me. 145, that if payment be made on an unjust demand to one having authority to enforce payment by sale of property, before there is any seizure of property, and when no immediate seizure of the property for sale was threatened, so that payment could not have been shown to have been made to avoid the seizure and sale of the property, such payment is voluntary, and cannot be recovered back by suit. This position receives countenance from, and

is apparently sustained by, many decisions, among which may be cited N. Y. etc. R. Co. v. Marsh, 12 N. Y. 308; Walker v. St. Louis, 15 Mo. 563; Phillips v. Jefferson Co., 5 Kan. 412; Taylor v. Board of Health, 31 Pa. St. 73; Barnett v. Cambridge, 10 Allen (Mass.), 48; Robinson v. Charleston, 2 Rich. (S. Car.) 317; Morris v. Baltimore, 5 Gill (Md.), 244.'

1. Radich v. Hutchins, 5 Otto (U. S.), 210; Maxwell v. Griswold, 10 How. (U. S.) 242; Quincey v. White, 63 N. Y. 370; Baltimore v. Lefferman, 4 Gill (Md.), 425; Awalt v. Eutaw Building Assoc., 34 Md. 435: Mays v. Cincinnati, 1 Ohio St. 268; Elston v. Chicago, 40 Ill. 514; Harvey v. President, 42 Ill. 336; Swanston v. Ijams, 63 Ill. 165; Phillips v. Jefferson Co., 5 Kan. 412; Kansas, etc., R. Co. v. Wyandotte Co., 16 Kan. 587; Brumagim v. Tillinghast, 18 Cal. 265; Jackson v. Allen. 4 Colo. 263; Harmon v. Harmon, 61 Me. 222; Elston v. Chicago, 40 Ill. 514; Fogg v. Union Bank, 4 Baxt. (Tenn.) 530; Ladd v. Southern Press, etc., Co., 53 Tex. 172. See Benson v. Monroe, 7 Cush.(Mass.)125; Emery v. Lowell, 127 Mass. 138; Cook v. Boston, 9 Allen (Mass.), 393; Lee v. Templeton, 13 Gray (Mass.), 476; Robinson v. Charleston, 2 Rich. Law (S. Car.), 317; s. c., 45 Am. Dec. 739; Champlin v. Laytin, 18 Wend. 407; Dickins v. Jones, 6 Yerg. (Tenn.) 483; s. c., 27 Am. Dec. 488; Ligonier v. Ackerman, 46 Ind. 552; Clarke v. Dutcher, 9 Cow. (N. Y.) 674; Natcher v. Natcher, 47 Pa. St. 496; Detroit v. Martin, 34 Mich. 170; Town Council v. Burnett, 34 Ala. 400; Flower v. Lance, 59 N. Y. 603. 610; Baker v. Cincinnati, 11 Ohio St. 534; Harrison v. Milwaukee, 49 Wis. 252; Powell v. Sup'rs St. Croix Co., 46 Wis. 210; Parcher v. Marathon Co., 52 Wis. 388; Plant v. Gunn, 2 Woods (U. S.), 372; Corkle v. Maxwell, 3 Blatchf. (U. S.) 413; Solinger v. Earle, 82 N. Y. 393.

Where the money was paid upon a wrongful demand, to save the party paying from some great or irreparable mischief or damage from which he could not be saved but by the payment of the sum wrongfully demanded, it can be recovered back. Corkle v. Maxwell, 3 Blatchf. (U. S.) 413.

To entitle a party who has paid money to recover it back on the ground of duress, he must at the time of payment have been under the necessity of either then

making the payment, or of resorting to the courts to get possession of the property wrongfully detained, or to recover his liberty, or he must at least show that there was an apparent necessity of resorting to the courts for one or the other of these purposes. Ladd v. Southern C. P. Co., 53 Tex. 172.

A sold B a house; A claimed the right to remove the gas fixtures and heater before delivering possession. B denied that A had such right, and upon A's threat to make such removal, executed his note to A for their value. Held that the action of B was voluntary. ham v. Dettre, 89 Pa. St. 506.

Heys

To recover, on the ground of duress, money paid upon a note executed in pursuance of an illegal agreement, duress at the time of such payment (and not merely at the time of giving the note) must be shown. Schultz v. Culbertson, 46 Wis. 313; s. c., 49 Wis. 122; Cunningham v. Boston, 15 Gray (Mass.), 468; Fellows v. School District, 39 Me. 559. Compare Taylor v. Jaques, 106 Mass. 291; Heckman v. Swartz, 50 Wis. 267.

A was greatly worried by a lawsuit which he was anxious to compromise. In order to relieve him of his distress his wife executed a mortgage upon her property. Held, that it was her voluntary act. Tooker v. Sloan, 30 N. J. Eq. 394. Compare Latterade v. Kaiser, 15 La. Ann. 296. Money voluntarily paid to escape from a criminal prosecution to which the payor is exposed is not paid under duress. Comstock v. Tupper, 50 Vt. 596. Compare Taylor v. Jaques, 106 Mass. 291. Where A was arrested for non-payment of a tax, and while under imprisonment promised to pay the same on condition of his release, and was thereupon discharged, and subsequently pays the amount, held, a voluntary payment. Fellows v. School Dist., 39 Me. 559.

1. Dickerman v. Lord, 21 Iowa, 338. 2. Smith v. Schroeder, 15 Minn. 35; Brumagim v. Tillinghast, 18 Cal. 265; Taylor v. Board of Health, 31 Pa. St. 73. Compare Cunningham v. Munroe, 15 Gray (Mass.), 471; Voiers v. Stout, 4 Bush (Ky.), 572.

As to knowledge that the property was procured by duress, see Voiers v. Stout, 4 Bush (Ky.) 572.

3. Hackley v. Headley, 45 Mich. 569. See Peyser v. Mayor, 70 N. Y. 495; s. c., 26 Am. Rep. 624; Voiers v. Stout, 4 Bush (Ky.), 572.

4. Hackley v. Headley, 45 Mich. 569; Spaids v. Barrett, 57 Ill. 289; Mays v. Cincinnati, 1 Ohio St. 268; Beckwith v. Frisbie, 32 Vt. 559; Chamberlain v. Reed, 13 Me. 357; s. c., 29 Am. Dec. 506; Chandler v. Sanger, 114 Mass. 364; Fashay v. Ferguson, 5 Hill (N. Y:), 154; Briggs v. Boyd, 56 N. Y. 289; Peyser v. Mayor, 70 N. Y. 497; s. c., 26 Am. Rep. 624; White v. Heylman, 34 Pa. St. 142; Miller v. Miller, 68 Pa. St. 493; Central Bank v. Copeland, 18 Md. 305; Baltimore v. Lefferman, 4 Gill (Md.), 425: Nelson 2. Suddarth, I Hen. & M. (Va.) 350; Adams v. Reeves, 68 N. Car. 134; Sasportas v. Jennings, 1 Bay (S. Car.), 470; Collins v. Westbury, 2 Bay (S. Car.), 211; Crawford v. Cato, 22 Ga. 594; Brumagin v. Tillinghast, 18 Cal. 266; Adams v. Schiffer (Colo.). 17 Pac. Rep. 21; Radich v. Hutchins, 95 U. S. 210; U. S. v. Huckabee, 16 Wall. (U. S.) 414. Compare Atlee v. Backhouse, 3 M. & W. 650; Skeate v. Beale, 11 Ad. & El. 983; Glynn v. Thomas, II Exch. 878; Bingham v. Sessions, 14 Miss. 13; Edwards v. Handley, Hardin (Ky.), 602; s. c., 3 Am Dec. 745; Hazelrigg v. Donaldson, 2 Metc. (Ky.) 445.

Wherever money is paid through a necessity to obtain possession of goods illegally withheld, and where the detention is fraught with great immediate hardship or irreparable injury, the payment is held to be compulsory. Cobb v. Charter, 32 Conn. 358.

In Hackley v. Headley, 45 Mich. 569, Cooley, J., says: "The leading case involving duress of goods is Astley v. Reynolds, 2 Strange, 915. The plaintiff had pledged goods for £20, and when he offered to redeem them the pawnbroker refused to surrender them unless he was paid £10 for interest. The plaintiff submitted to the exaction, but was held entitled to recover back all that had been

torted from the administratrix of the mortgagor money exceeding the sum due for principal, interest, and costs, under a threat that he would proceed with the sale unless his demand were complied with, held, that the administratrix might recover it as money had and received. Close v. Phipps, 7 M. & G. 586.

1. Heaps v. Dunham, 95 Ill. 583; Bane v. Detrick, 52 Ill. 11; Taylor v. Cottrell, 16 Ill. 93; Schommer v. Farwell, 56 Ill. 542; Thurman υ. Burt, 53 Ill. 129; Seiber v. Price, 26 Mich. 518; Rood v. Winslow, 2 Doug. (Mich.) 68; Holbrook v. Cooper, 44 Mich. 373; Clark z. Pease, 41 N. H. 414; Breck v. Blanchard, 22 N. H. 303; Richardson v. Duncan, 3 N. H. 508; Severance v. Kimball, 8 N. H. 386; Neally v. Greenough, 25 N. H. 325; Severance v. Kimball, 8 N. H. 386; Rollins v. Lashus, 74 Me. 218; Bowker v. Lowell. 49 Me. 429; Soule v. Bonney, 37 Me. 128; Eddy v. Herrin, 17 Me. 338; Whitefield v. Longfellow, 13 Me. 146; Watkins v. Baird, 6 Mass. 306; Hackett v. King, 6 Allen (Mass.), 58; Fisher z. Shattuck, 17 Pick. (Mass.) 252; Guilleaume v. Rowe, 94 N. Y. 268; Osborn v. Robbins, 36 N. Y. 365; Strong v. Grannis, 26 Barb. (N. Y.) 122; Thomp son v. Lockwood, 15 Johns. (N. Y.) 256; Work's App., 59 Pa. Št. 444; Stouffer v. Latshaw, 2 Watts (Pa.), 167; Bush v. Brown, 49 Ind. 573; Hatter v. Greenlee, 1 Port. (Ala.) 222; s. c., 26 Am. Dec. 310; Smith v. Atwood, 14 Ga. 402; Fossett v. Wilson, 59 Miss. 1; Belote v. Henderson, 5 Coldw. (Tenn.) 471; Phelps v. Zuschlag, 34 Tex. 371; Diller v. Johnson, 37 Tex. 47; Plant v. Gunn, 2 Woods (U. S.), 372; Baker v. Morton, 12 Wall. (U. S.) 150.

Where there is an arrest for an improper purpose without just cause, or where there is an arrest for a just cause but without lawful authority, or for a just cause but for an unlawful purpose, the rule is that in either of those events the party arrested, if he is thereby induced to enter into a contract, may avoid it as one procured by duress. Baker v. Morton, 12 Wall. (U. S.) 150; Phelps v. Zuschlag. 34 Tex. 371.

To make out the defence of duress by imprisonment, it must appear that the party's action has been influenced by the restraint; the conclusion of coercion is not a necessary one from the fact of unlawful restraint, and especially not where the par

ty is suffered to go at large, and has every assurance that the restraint at most can only subject him to a little inconvenience. Feller v. Green, 26 Mich. 69; Baldwin v. Murphy, 82 Ill. 485.

It is a general rule that imprisonment by order of law is not duress; but to constitute duress by imprisonment, either the imprisonment or the duress after must be tortious and unlawful. If, therefore, a man supposing that he has 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. But when the imprisonment is unlawful, although by color of legal process, yet a deed obtained from a prisoner for his deliverance, by him who is a party to the unlawful imprisonment, may be avoided by duress of imprisonment. Watkins v. Baird, 6 Mass. 506.

That the person arrested was unaware that the arrest was illegal is immaterial. Stearns v. Veasey, 33 N. H. 61.

It is not enough to establish duress that a party was imprisoned at the time of making a promise or executing a contract in respect to the subject concerning which he had been arrested. Imprisonment, when lawful, is by no legal intendment an abridgment of the free and voluntary volition of the mind in the management of business transactions. Heaps v. Dunham, 95 Ill. 583; Smillie v. Titus, 32 N. J. Eq. 51; Farmer v. Walter, 2 Edw. Ch. (N. Y.) 601.

A person arrested on capias could not get bail, and on giving the plaintiff secured notes, the latter consented to his discharge. The arrest was caused in good faith for an injury which plaintiff supposed had been done by defendant, and the notes were taken in satisfaction of the injury, though they did not fully compensate it. Held, that a bill would not lie for the cancellation of the securities on the ground that they had been ob