Where a person is imprisoned for crime his situation must be distinguished from that where he is imprisoned for the debt or liability to which the settlement which he is induced to make relates. If the prisoner is not guilty of the crime with which he is charged,41 or if his imprisonment is for any reason illegal,42 it would universally be admitted that a transaction induced by the imprisonment would be voidable for duress; but if the prisoner is guilty, and the process valid, the imprisonment is "lawful." The argument based on this circumstance has been answered in a leading Massachusetts case48 as follows:

38 Mascola v. Montesanto, 61 Conn. 60, 23 Atl. 714, 29 Am. St. Rep. 170; Jones v. Peterson, 117 Ga. 58, 43 S. E. 417; Bunker p. Steward (Me.), 4 Atl. 658; Prichard v. Sharp, 51 Mich. 432, 16 N. W. 798; Dunham v. Griswold, 100 N. Y. 224, 3 N. E. 76; Meacham v. Newport, 70 Vt. 67, 39 Atl. 631; Lyons v. Davy-Pocahontas Coal Co., 75 W. Va. 739, 84 S. E. 744.

39 Watkins v. Baird, 6 Mass. 606, 4 Am. Deo. 170; Clark v. Turnbull, 47 N. J. L. 265, 54 Am. Rep. 157; Pflaum v. McClintock, 130 Pa. 369,18 Atl. 734. Heaps v. Dunham, 95 11I. 583, goes beyond the text for if the charge was unfounded in that case it was presumably known to be so by the person making it. The court seemed to think it enough that the process was legal. Though early authorities may sustain this position (see Watkins v. Baird, 6 Mass. 506, 510, 4 Am. Dec. 170, and authorities cited) it is submitted that it cannot now be accepted.

40 This was laid down by Lord Coke, Co. Litt. 253, 2 Inst. 481, and is still law. 1 Bl. Comm. 137; Whitefield v. Longfellow, 13 Me. 146; Morse v. Woodworth, 155 Mass. 233, 250, 27 N. E. 1010, 29 N. E. 535; Reinhard v. City, 49 Ohio St. 257, 31 N. E. 35, and see cases in the preceding note. Lyons v. Davy-Pocahontas Coal Co., 75 W. Va. 739, 84 S. E. 744. In Sweet v. Kimball, 166 Mass. 332, 44 N. E. 243, 55 Am. St. Rep. 406, a creditor by false representations enticed a nonresident debtor into Massachusetts and then by arresting him for debt (as allowed by Massachusetts when the debtor is about to leave the State), induced him to make a settlement. The settlement was held voidable.

41 Hatter v. Greenlee, 1 Porter, 222, 26 Am. Dec 370.

42 Bailey v. Devine, 123 Ga. 663, 51 S. E. 603, 107 Am. St. Rep. 163. See also infra, Sec. 1613, n. 47.

"It has sometimes been held that threats of imprisonment, to constitute duress, must be of unlawful imprisonment. But the question is whether the threat is of imprisonment which will be unlawful in reference to the conduct of the threatener who is seeking to obtain a contract by his threat. Imprisonment that is suffered through the execution of a threat which was made for the purpose of forcing a guilty person to enter into a contract may be lawful as against the authorities and the public, but unlawful as against the threatener, when considered in reference to his effort to use for his private benefit processes provided for the protection of the public and the punishment of crime. One who has overcome the mind and will of another for his own advantage, under such circumstances, is guilty of a perversion and abuse of laws which were made for another purpose," 44 and where there is actual imprisonment or a threat of immediate arrest, the weight of authority supports this view.45