A threat of criminal prosecution is not in terms a threat of imprisonment but in effect it is ordinarily a threat of imprisonment, and, also irrespective of whether the prosecution is likely to be followed by imprisonment, it is a threat of disgrace. It needs no argument to show that as matter of fact threats of prosecution may be and frequently are of such compelling force that acts done under their influence are coerced and not voluntary; and the better foundation there is for the prosecution, the greater is the coercion. Nevertheless, there are a number of decisions holding that a threat of well-founded criminal prosecution is not such duress as to make voidable a transaction induced thereby. The arguments advanced in the opinions in these cases in support of this conclusion are by no means uniform. In the main they are based on two dissociated ideas which may be thus stated:
43 Morse v. Woodworth, 155 Mace. 233, 251, 27 N. £. 1010, 29 N. E. 525.
44 (Quoted with approval in Kwent-aky v. Sirovy, 142 Iowa, 385, 400, 121 N. W. 27.)
45 Walbridge v. Arnold, 21 Conn. 424; Mayer v. Oldham, 32 11I. App. 233;
Richardson v. Duncan, 3 N. H. 508; Clark v. Tilton, 74 N. H. 330, 333, 68 At). 335; Edmondston v. Porter (Old.), 162 Fac. 692; Fillman v. Ryon, 168 Pa. St. 484, 32 Atl. 80; Phelpe v. Zuschlag, 34 Tex. 371; Heckman v. Swarts, 64 Wis. 48, 24 N. W. 473.
(1) That whether the person threatened was guilty or not, a threat of prosecution is not necessarily a threat of immediate arrest and imprisonment, and therefore is insufficient as a means of terrorizing another; (2) that if the person threatened was guilty, the threat was one which a person criminally defrauded or injured by another had a right to make.46
46 In Ingebrigt v. Seattle, etc., Co., 78 Wash. 433, 139 Pac. 188, 189, the cases supporting this side of the question are thus summarized: "It is not duress for one, who in good faith believes that he has been wronged, to threaten the wrongdoer with a civil suit; and, if the wrong includes a violation of the criminal law, it is not duress to threaten him with a criminal prosecution. Hilborn v. Bucknam, 78 Me. 482, 7 Atl. 272, 67 Am. Rep. 816. A mere threat to imprison, without an actual arrest, does not constitute duress. Bodine v. Morgan, 37 N. J. Eq. 426; Thorn v. Pinkham, 84 Me. 101, 24 Atl. 718, 30 Am. St. Rep. 336. Threats of imprisonment, not accompanied with the statement that the prosecution has been commenced, do not constitute duress. Buchanan v. Sahlein, 9 Mo. App. 662; Sulzner v. Cappeau-Lemley dec. Co., 234 Pa. 162, 83 Atl. 103, 39 L. R. A. (N. S.) 421. In the case last cited the court said: 'Ordinarily, when no proceedings have been commenced, threats of arrest, prosecution, or imprisonment do not constitute legal duress to avoid a contract; the threats must be made under such circumstances that they excite the fear of imminent and immediate imprisonment.' [Citing Russell v. McCarty, 46 Ga. 197; Harmon v. Harmon, 61 Me. 227,14 Am. Rep. 656; Wilkerson v. Hood, 65 Mo. App. 491;
Sieber v. Weiden, 17 Neb. 582,24 N. W. 215; Dunham v. Griswold, 100 N. Y. 224, 3 N. E. 76; Mover v. Dodson, 212 Fa. 344, 61 Atl. 937.] The threat, in order to be coercive, must be of an unlawful use of process. Loan & Protective Ass'n v. Holland, 63 111. App. 58. There is no duress where neither a warrant has been issued nor proceedings commenced. Elston v. Chicago, 40 111. 514, 89 Am. Dec. 361. 'Threats of criminal prosecution, unaccompanied by threats of immediate imprisonment, do not constitute duress.' Beath v. Chapoton, 115 Mich. 506, 73 N. W. 806, 69 Am. St. Rep. 589. See to the same effect, Williams v. Stewart, 115 Ga. 864,42 S. E. 256. [Rendleman v. Rendleman, 166 11I. 568, 41 N. E. 223.] ... It is those contracts made under fear of unlawful arrest, and not those executed under threat of lawful imprisonment, that can be avoided for duress.' McCormick Harvesting Co. v. Miller, 54 Neb. 644, 74 N. W. 1061. See to the same effect'Alexander v. Pierce, 10 N. H. 494; Englert v. Dale, 25 N. D. 587, 142 N. W. 169." See also Qregor v. Hyde, 62 Fed. 107, 10 C. C. A. 290; Harrison Township v. Addison, 176 Ind. 389, 96 N. £. 146; Giddings v. Iowa Sav. Bank, 104 la. 676, 679, 74 N. W. 21; Guinn v. Sump-ter Valley Ry. Co., 63 Qreg. 368, 127 Pac. 987.