ters have drawn up similar indictments against members of the profession who were contemporaries of Shakespeare and Butler. If anything, the ethical standards of the bar to-day are higher than those that obtained in the day when Bacon put a price on justice dispensed in his court, or Coke traded his daughter to gain more political influence, or Jeffreys sent innocent men to death without even the mockery of a trial. And so far as "quibbling" and "technicalities" are concerned, Mr. Hill must have long since forgotten his studies in common law pleading, under which system our "noble fathers" practiced and decided cases by splitting hairs, not over the question of "whose ox was gored," but whether the plaintiff had drawn up the absque hoc clause of his pleading in compliance with all the technical niceties required of this form of pleading. How refreshing it is to turn away from such wild, unfounded tiradees directed against a profession which has done more for civilization than any other in the world, and reflect on the great advancement in justice and the modes of attaining it, so clearly set forth by the facile pen of United States Circuit Judge Caldwell in the case of McDonald v. Nebraska, 101 Fed. Rep. 171, where that learned judge said: "There was a time in England and in this country when the fundamental principles of right and justice which courts were created to uphold and enforce were esteemed of minor importance compared to the quibbles, refinements, and technicalities of special pleading. In that period the great fundamentals of the law seemed little, and the trifling things great. The courts were not concerned with the merits of a case, but with the mode of starting it. And they adopted so many subtle, artificial and technical rules governing the statement of actions and defenses-for the entire system of special pleading was built up by the judges without the sanction of any written. law-that in many cases the whole conten tion was whether these rules had been observed, and the merits of the case were never reached, and frequently never thought of. Happily for mankind, and for the law. itself, that epoch is past in England and in this country, and we now have an epoch in which substance is more considered than form, in which the justice and right of the case determines its decision, and not some technical error or mistake in the pleadings." NOTES OF IMPORTANT DECISIONS. BANKRUPTCY-NEW PROMISE TO PAY DEBT DISCHARGED.-That a discharge in bankruptcy is a complete bar to all debts provable in the proceedings, and that the burden rests upon the party attacking the discharge to show why it is not effectual is held in Meyer v. Bartels, 107 N. Y. Supp. 778. The defendant had been discharged in bankruptcy in 1902, and the debt sued on in this case was one that accrued prior to that time. Plaintiff conceded a discharge in bankruptcy, but alleged a revival of the debt under a new promise and partial payment. The evidence for plaintiff was to the effect that the new promise was oral, and that at the time the promise was made a payment of a dollar was made on account, all of which was contradicted by defendant. In reversing the judgment and dismissing the complaint, the court says: "The discharge in bankruptcy, was an absolute bar to all de mands that were provable in the proceedings and the burden rests upon the party attacking the discharge to show some cause why it is not effectual. Stevens v. King, 16 App. Div. 377, 44 N. Y. Supp. 893. On the theory of partial payment and new promise, the statute of frauds specifically provides that such a promise must be in writing. Wheeler v. Simmons, 60 Hun, 404, 15 N. Y. Supp. 452, demonstrates that par tial payment on account of a debt that has been discharged in bankruptcy is not sufficient to renew the original indebtedness or create a new obligation on the part of the debtor to pay the balance due." This decision, of course, rests upon the statute of New York. There are a few other jurisdictions in which it is required that the new promise must be in writ ing. But in the absence of such a statute, the new promise need not be in writing. The legal obligation to pay the debt is released, but the moral obligation remains, and will support a new promise to pay. It has been said, however, that the new promise "must be clear, express, distinct, and unequivocal, and without qualifi cation or condition. It need not be in writing unless a state statute so requires." of CONSTITUTIONAL LAW-LAWS REDUCING THE PERIOD WITHIN WHICH ACTIONS MAY BE BROUGHT.-In Massachusetts, the statute of limitations in a certain class of personal injury cases was reduced from six to two years. Under the laws of that state, the new law became effective thirty days after its enactment, so that claims which would otherwise be cut off by the reduced period would have to be sued on within the thirty days between the passage of the act and the date on which it became effective. The constitutionality of this statute was questioned in Mulvey v. City of Boston (Mass.), 83 N. E. Rep. 402. The statute was set up and judgment entered for defendant. Plaintiff appealed. It has been quite generally held that a statute of limitation does not relate to the substantive rights, but merely to the remedy, applies to existing causes action, and is not unconstitutional because of the fact that the period is reduced, provided a reasonable period is left in which to bring actions. In this case the court first discusses the question of whether or not such a statute is constitutional as to cause of action already existing, as follows: "In ascertaining the mean. ing of statutes, it is a general rule, that they are intended to operate prospectively and not retroactively. It follows, therefore, that in the absence of an express provision to that effect, they do not relate back to change previously existing substantive rights of property. Most such rights cannot constitutionally be affected by legislation. But in the prospective operation of a statute which deals only with remedies and the enforcement of rights the future procedure under the new legislation is as applicable to previously existing substantive rights as to those afterwards acquired. Statutes of limitation relate only to the remedy, and they control future procedure in reference to previously existing causes of action. This is the general rule in regard to such statutes, where they contain no language clearly hinting their application to causes of action arising in the future. In Brigham v. Bigelow, 12 Metc. 268-275, Chief Justice Shaw said, in regard to a change of the statute of limitations: 'If, then, the statute has no effect on the contract which is passed when it is made, but only on the remedy which is then future, it has no retroactive operation and cannot be avoided on that ground.' In Darling v. Wells, 1 Cush. 508-510, we find these words: "The whole effect of the new statute was prospective, as it regarded an action to recover an existing debt not barred at the time, and therefore it was not open to the objection against retrospective laws.' To the same effect is Loring v. Alline, 9 Cush. 68, in which Chief Justice Shaw said: 'Indeed, we think it is the common practice and open to no objection, in passing a statute of limitation, to make it apply as well to all causes of action which have already accrued as to those which may afterwards accrue, if sufficient time be allowed between the passing of the act and the time fixed for the limitation to afford a full and ample time to all persons having such causes of action to commence their suits.'" The court then directs its attention to the question of whether or not the thirty days allowed was a reasonable time. In sustaining the statute from this standpoint, the court said: "The only difficult question in the present case arises from the fact that there might be claims which had existed without suit nearly two years before the act took effect and which would therefore be barred by the statute quickly. Upon these a sult could be brought after the passage of the act, only during the period of thirty days between the time of its passage and the time of its tak ing effect. There is ground for an argument that this is too short to be reasonable, and that a statute limiting the rights so closely would be unconstitutional. It may be contended, either that the statute must be construed as not applying to existing causes of action because the legislature must have intended it to have a meaning which would leave it valid, or, if it is given a different meaning, that it must be set aside as unconstitutional. A statute declaring that a period already elapsed should bar an action upon a contract would be an arbitrary destruction of contractual rights, and would be unconstitutional. But if a reasonable time is allowed within which a suit may be brought after the passage of the statute, the act is unobjectionable. In Wilson v. Iseminger, 185 U. S. 55, 22 Sup. Ct. Rep. 573, 46 L. Ed. 804, there is a more accurate statement, as follows:, 'What shall be considered a reasonable time must be settled by the judgment of the legislature and the courts will not inquire into the wisdom of its decision in estab lishing the period of legal bar, unless the time allowed is manifestly so insufficient that the statute becomes a denial of justice.'" The reasonableness of the time (thirty days) in which actions would have to be brought was next considered by the court, and it was held that the time was not so short as to amount to a denial of justice. It is said that in these personal Injury cases the claimant cannot fail to have full knowledge in most cases, and that the bringing of such a suit is a very simple matter, not requiring any considerable time. The general conditions enter into the consideration of the court on this point, and it is held that while in some of the sparsely settled western states thirty days might be an unreasonably short time, that in a thickly populated community, such as Massachusetts, every portion of which is accessible by railroad, telegraph, telephone and the mail, and where newspapers are to be found in every hamlet and village, the time was not unreasonably short. The doctrine of this case as to the power of the legislature to reduce the period of limitation, even as to existing causes of action, has the general support of the authorities. There is a distinction made in some jurisdictions, however, between statutes giving a reasonable time after taking effect in which to commence suits, and those cases where the suit must be brought between the time of the passage of the statute and the time that it goes into effect. The Massachusetts court holds that the thirty days between the passage of the act and the date that it became effective, was a sufficient opportunity to institute litigation. It has been held that this would be requiring the statute to perform its office before it became effective, but this view is not supported by the weight of authority. THE DOCTRINE OF DURESS AS APPLIED TO EXECUTORY CONTRACTS. The word duress, as used ordinarily, means physical constraint. The same idea is embodied in its legal meaning. The doctrine of duress is (without attempting an accurate definition), that a person is not bound by a transaction into which he was forced by physical constraint. The theory underlying the doctrine of duress is that the voluntary consent of one of the parties to the contract is lacking and therefore the contract is not binding on that party. This same theory, however, underlies certain other legal doctrines. Of these the doctrines of fraud and of undue influence bear the closest analogy to that of duress; and it is proper here at the outset to consider wherein these doctrines are alike, as well as wherein they differ. The nature of the contract made is the same in each case; it is voidable, and it is for the same reason in each case, i. e., that there has not been a perfectly free and voluntary consent. The difference lies in the means employed to induce this imper fect consent. The words "undue influence," apart from any technical legal significance, are very inclusive and would naturally embrace cases of fraud and duress. For in every case of fraud there is, of course, a case of an undue influence; and in every case of duress, there is an undue influence brought to bear. And an undue influence may exist where neither fraud nor duress is involved. But the legal meaning of undue influence is not so extensive. The expression is not applied to those cases where the term fraud or duress may be used accurately. Fraud exists where a man is induced by a willful misstatement of facts to do something which otherwise he would not have done. In such a case both his intention and his will concur in making the contract. His consent is, at the time, a voluntary one. It is only as the result of subsequent developments that his attitude changes. In cases of duress, however, and generally in cases of undue influence, while the man intends to enter into the contract, it is not his will to do so. Even at the moment of contracting he is inwardly objecting and dissenting to the transaction. At that very time he may be intending subsequently to avoid it. So much for the difference between fraud on the one hand, and duress and undue influence on the other. As between the last two, it is often difficult to draw the line. Particularly in the application of equitable principles to such cases are two doctrines run together. Yet this confusion need not cause regret, for as a matter of practice it is of little importance. The same relief may be obtained in either case. But, as a matter of theory and for the purposes of this discussion, it is desirable that we should distinguish the two. The characteristic feature of a case of duress is the fact that the means inducing the unwilling consent involve the actual or threatened application of an unlawful physical force. No one has attempted an accurate definition of undue influence, but for our purposes we may say that the proof of those circumstances or of that degree of importunity which, though lacking the character of a physical constraint, are yet sufficient to destroy the free agency of a contracting party, will be accepted as proof of undue influence. This element of a physical constraint in the means of inducing the involuntary assent is, then, the distinguishing feature of a case of duress, and that fact should be borne in mind throughout this discussion. In discussing the circumstances which will constitute a case of duress, we may conveniently divide the subject into duress of the person and duress of goods. Duress of the person was recognized by the common law of England and was usually divided into duress of imprisonment and duress per minas. Duress of imprisonment exists where one has actually been deprived of his liberty and, in order to regain it, enters into some obligation. He may subsequently avoid the obligation. But the mere fact of imprisonment is not sufficient to constitute duress. The imprisonment must be an unlawful one. As to what is a lawful and what an unlawful Blackstone imprisonment, says:1 "To make imprisonment lawful it must be either by process from the courts of judicature or warrant from some legal officer having authority to commit to prison; which warrant must be in writing and express the causes of the commitment." This means that so long as the imprisonment is made under color of the law, it will not support the plea of duress or imprisonment, no matter what may have been the ground of the imprisonment or the purpose of the one causing the arrest. That this was the strict common law rule is confirmed in Chitty on Contracts.2 It is certain that the doctrine of duress of imprisonment was never so restricted in this country. In Richard v. Duncan, this comprehensive statement is made: "But it is now well settled that (1), when there is an arrest for improper purposes, without a just cause, or; (2), where there is an arrest for a just cause but without lawful authority, or; (3), where there is an ar rest for a just cause, under lawful authority, (but) for unlawful purposes, it may be construed a duress." This statement has been expressly approved in many cases since. An analysis of this statement results in three propositions: (1) The absence of lawful authority is, in itself, suf ficient to constitute the imprisonment unlawful and make possible the claim of duress of imprisonment; (2), the presence of an improper purpose is, in itself, likewise sufficient for this result; (3), the absence of a just cause is, in itself, not sufficient for this result. The writer is convinced that these three propositions though often quoted with approval, cannot be accepted without qualification. Whenever a man is actually deprived of his liberty, either by formal arrest or by any manner of forcible detention, and his prosecutor or his detainor exacts from him some obligation by reason of the imprisonment, whereupon the pris oner is released, then it is evident that, whether or not there be a just cause for the imprisonment or a lawful authority for the same, certainly there was an improper purpose in the mind of the person causing the imprisonment. If there had not been an improper purpose, he would not have released the prisoner upon his signing the obligation. So that this element, i. e., an improper purpose, is bound to be present in every case of duress of imprisonment. Of the three propositions just formulated proposition No. 1-that mere lack of lawful authority may make an imprisonment unlawful so as to constitute duress of imprisonment-is therefore, not correct; for no case of duress of imprisonment would ever arise unless an unlaw ful and improper purpose existed in the mind of the person causing the imprisonment. Proposition No. 2-that merely the presence of an improper purpose is sufficient to give rise to duress of imprisonment-is correct. Proposi tion No. 3-that merely the absence of a just cause is not sufficient for this purpose-is correct, and for the same reason that the first proposition is wrong, i. e., that no case of duress of imprisonment would ever arise where there was not an improper purpose. We may, there fore, assert that there must always be an im proper purpose present in order that we may have a valid case of duress of imprisonment. What effect, if any, upon the validity of a claim of duress of imprisonment is exerted by the doctrine of compounding offenses will be taken up in another place, and we may now pro ceed with duress per minas of the person. At common law, duress per minas was restrict ed to threats (1) of unlawful imprisonment, (2) of loss of life, (3) of loss of limb, and (4) of mayhem. The reasoning was that the ability to recover adequate compensation in damages in any given case demonstrated that the will of an ordinarily prudent and courageous man could not in that case have been overcome, and it was considered essential to duress per minas that the threats be calculated to overcome the will of a person of average firmness. The common law judges laid down as a rule what threats did and what did not amount to duress. The standard of the average man was set up and whoever failed to meet that standard might be flagrantly imposed upon and yet receive no relief. Such an application of the doctrine of duress is inconsistent with the reason of it. The reason of it is that in the particular case the party entered into the contract not of his own will. If the lack of free will is the cause of the invalidity of the contract, is it not illogical for a judge to declare as a matter of law whether or not the particular circumstances deprived the party of his free will? Is it not inherently a matter of fact whether or not there was a consenting will. Such is undoubtedly the logical view of the matter, and such is the view taken in many of the recent decisions. Yet it is not possible to say that at the present time the weight of authority favors the more liberal position. The Missouri decisions are not uniform on this point. In Buchanan v. Sahlein, the following is said. "The threat must be such as would naturally ex (5) Vid. II Institutes 481, and Blackstone, vol. 1, p. 130. "For a fear of battery, though never so well grounded, is no duress because in this case, should the threat be performed, a man may have satisfaction by recovering equivalent damages." (6) 9 Mo. App. 552 (1881). cite such a fear as would overcome the will of a person of ordinary courage." The same theory is stated in Wilkerson v. Hood. Yet in both these cases there was no necessity for applying a more liberal doctrine, and the judges were satisfied to state the rule in that form. But in Turley v. Edwards, and in Meredith v. Meredith, which were both cases demanding an application of the liberal rule, the judges did not hesitate to apply it. So we may say that the Missouri courts are not opposed to the better doctrine in proper cases.10 The theory adopted in 9 Mo. App. 552,11 was expressly criticized in Cribbs v. Sowle,12 where the following language was used: "But these rules do not seem to have any regard to the condition of the mind of the person acted upon by the threat, or take into consideration the age, disposition, or intellect of the person so threatened." This quotation indicates the reasoning which has induced the liberal and more logical doctrine. The question in each case is whether or not the threats did actually deprive the person of his free will. This is a matter of fact and should be treated as such. It is manifestly necessary in each case, therefore, to consider the mental and physical qualities of the person alleging duress. as well as attendant circumstances, and the matter should be left to the determination of the jury under instruction from the court that they give proper consideration to all these facts. As said in Nebraska Mutual Bond Ass'n v. Klee,18 "In other words, the law protects an individual without reference to whether he is weak or strong intellectually, and refuses to measure his rights by an arbitrary yard-stick avowedly applicable only to men of ordinary intellect, firmness and courage." From this doctrine as to the nature of the threats necessary to constitute duress per minas, it follows as a matter of course, that the threats are not now limited to those of (1) unlawful imprisonment, (2) death, (3) loss of limb, (4) mayhem, as at common law, for this limitation was due, as already explained, to the old doctrine as to the nature of the threats required. So that a threat of mere battery may now be sufficient to constitute duress per minas.14 Relative to threats of imprisonment, we find some conflicting views. The question is whether or not the threatened imprisonment must be an (7) (10) Vid. the recent case of Lasks v. Butler County Bank, 204 Mo. 455, 1. c. 478. (11) See above. (12) 87 Mich. 34 (1891). (13) 97 N. W. Rep. 476 (Neb., 1903). (14) Parsons on Contracts, I., p. 394, and U. 8. v. Huckabee, 16 Wall. 431 (1872). unlawful one. In 9 Mo. App. 552,15 it was said that the threats must be of an "unlawful imprisonment about to be immediately inflicted." And in Shattuck v. Watson, 16 and in Davis v. Luster, it was held that the threatened imprisonment must be for a crime, of which the party is not guilty, i. e., it must be an unlawful imprisonment, the word "unlawful" being used in the sense that no offense against the public has been committed. At first blush, this may seem a reasonable doctrine; yet, no matter how guilty criminally a man may be, it certainly is not justifiable for a person knowing of the commission of the crime, to threaten imprisonment, or actually to imprison the guilty man, in order to exact from him his consent to some personal obligation. As far as duress per minas is concerned, it should not make any difference whether the threatened imprisonment be lawful or unlawful, as against the public. As against the person making the threats, the threatened imprisonment is unlawful, although as against the public it may be lawful. If his liability to imprisonment is used against a man to force him into some obligation, this is such an abuse of legal process as should warrant the plea of duress against the person exacting the obligation. The latter is endeavoring "to use for his private benefit process provided for the protection of the public and the punishment of the crime." "18 These cases also support the position that the existence or non-existence of duress is to be determined by ascertaining the mental condition of the party alleging it. For the threat of either. a lawful or of an unlawful imprisonment is equally capable of forcing a man into a contract, and yet the mere proof that such a threat has been made is not sufficient to establish a case of duress. It is not accurate to say that the proof of certain threats proves the existence of duress. These threats may or may not have induced a certain condition of mind. If this condition of mind has been induced and the threats employed are unlawful, then duress exists. This requisite condition of mind is one wherein the action of (15) (16) (17) (18) Already referred to. 7 L. R. A. 551 (Ark., 1890). Morse V. Woodworth, 155 Mass. 251 (1891). This case was quoted with approval in Hensinger v. Dyer, 147 Mo. 219 (1898), and the case of Davis v. Luster, 64 Mo. 43 (already referred to) was expressly overruled. Judge Burgess said: "If a contract obtained by threats of a prosecution for a criminal offense, of which the party charged is not guilty, is invalid, it is difficult to see why a contract obtained by threats of a similar prosecution for an offense of which the person charged is guilty, is not also invalid. One is just as wrongful as the other." And to the same effect is Insurance Co. v. Kirkpatrick, 111 Ala. 456 (1895). (19) 13 Oregon 121 (1885). |