The unsoundness of the arguments denying that threats of well-founded prosecution can be duress - at least unless a warrant has issued and immediate arrest is probable, will be evident from considering some cases not dissimilar in principle but differing slightly in fact from those which usually arise. In the ordinary case one who has been criminally defrauded forces by threats a settlement with his debtor by which a payment or transfer of property is made not exceeding in value the amount which the creditor could recover in a civil action. But let it be supposed that the creditor forced a conveyance from his debtor of property worth several times the claim. If the threats do not amount to an unlawful coercion, the terms of the contract and the adequacy of consideration are for the parties to consider. They are of no concern to the court.49 Again, suppose of a third person and not be duress to threaten' the prosecution of the person himself who is threatened.
47 Kronmeyer v. Buck, 258 111. 586, 101N. E. 035, 45 L. R. A. (N. S.) 1182; Rollins v. Lashus, 74 Me. 218; Flanigan v. Minneapolis, 36 Minn. 406, 31 N. W. 369; Ball v. Ball, 79 N. J. Eq. 170, 81 Atl. 724, 37 L. R. A. (N. S.) 539;
Coon v. Metsler, 161 Wis. 328, 154 N. W. 377, L. R. A. 1916 B. 667. See also cases supra, Sec. 1612, n. 46.
48 Supra, Sec. 1611.
49 But such a conveyance was set aside in Clement v. Buckley Mercanthe threat of prosecution is made by some one who was not injured by the crime and who makes use of his discovery of it to force an agreement or conveyance from the criminal. Any member of the public has a right to prosecute for crime one whom he knows to be guilty. The prosecution is therefore lawful. Yet to threaten to use this right for the purpose of coercing the criminal to make a payment or to enter into a contract may be in itself a criminal offence, and certainly must be regarded as duress.60 Finally, there are many cases where it is held that threats of a well-founded prosecution of a husband, son, or other relative of the person threatened, may amount to duress.51 It can hardly be duress to threaten the prosecution tile Co., 172 Mich. 243, 137 N. W. 667, though Michigan has been one of the States denying that mere threats of a well-founded prosecution could amount to duress. See Beath v. Chapoton, 115 Mich. 506, 73 N. W. 806, 69 Am. St. Rep. 589, and cases therein cited.
50 Thompson v. Niggley, 63 Kan. 664, 35 Pac. 290, 26 L. R. A. 803. In Coveney v. Pattullo, 130 Mich. 275, 89 N. W. 968, an attorney whose client was imprisoned at a distance from home, exacted a mortgage to secure an unreasonable fee. The transaction was set aside.
51 Williams v. Bayley, LR.1H. L. 200; McClatchie v. Haslam, 63 L. T. 376; International Harvester Co. v. Voboril, 187 Fed. 973, 110 C. C. A. 311; Woodham v. Allen, 130 Gal. 194, 62 Pac. 398; Merchant p. Cook, 21 D. C. 145; Kronmeyer v. Buck, 258 111. 586, 101 N. E. 935, 45 L. R. A. (N. S.) 1182; Denney v. Reber, 63 Ind. App. 192, 114 N. E. 424; First Nat. Bank v. Bryan, 62 Iowa, 42, 17 N. W. 165; Giddings v. Iowa Say. Bank, 104 la. 676, 74 N. W. 21; Williamson-Halsell, etc., Co. v. Ackerman, 77 Kan. 602, 94 Pac. 807, 20 L. R. A. (N. S.) 484; Fears v. United Loan & Deposit Bank, 172 Ky. 255, 189 S. W. 226; Bryant v. Peck, etc., Co., 154 Mass. 460, 28 N. E. 678; Webb v. Lothrop,
224 Mass. 103, 112 N. E. 934; Meech r. Lee, 82 Mich. 274, 46 N. W. 383; Benedict v. Roome, 106 Mich. 378, 64 N. W. 193; Lewis v. Doyle, 182 Mich. 141, 148 N. W. 407; Hensinger v. Dyer, 147 Mo. 219, 48 S. W. 912; Hargreaves v. Menken, 45 Neb. 668, 63 N. W. 961; Nebraska Mut. Bond Assoc, v. Klee, 70 Neb. 383, 97 N. W. 476; Lomerson v. Johnston, 44 N. J. Eq. 93, 13 Atl. 8, 47 N. J. Eq. 312, 20 Atl. 675, 24 Am. St. Rep. 410; Travis v. Unkart, 89 N. J. L. 571, 99 Atl. 32; Schoener v. Iissauer, 107 N. Y. Ill, 13 N. E. 741; Adams v. Irving Bank, 116 N. Y. 606, 23 N. E. 7, 6 L. R. A. 491, 15 Am. St. Rep. 447; Kohler v. Savage, 86 Oreg. 639, 167 Pac. 789; Keckley v. Union Bank, 79 Va. 468; McCormick, etc., Co. v. Hamilton, 73 Wis. 486, 41 N. W. 727; Mack v. Prang, 104 Wis. 1, 79 N. W. 770, 45 L. R. A. 407, 76 Am. St. Rep. 848. But see Sulsner v. Cappeau-Lemley, etc., Co., 234 Pa, 162, 83 Atl. 103, 39 L. R. A. (N. S.) 421. In some of the decisions in this note the transaction in question was held under the facts of the case not to have been made under duress, but they all, except the Pennsylvania decision cited at the end, indicate that if the will of the person threatened was in fact coerced, the threats would amount to duress.