The original common-law rule was that there could be no duress unless the threats or violence were of such sort as to overcome the mind of a courageous man.1 It ignored the effect of the acts upon the sary to put the doctrine of duress on a rational basis, and have held that duress exists where the threats or violence used were such as to overpower the mind of the person subjected thereto.5 Under this theory, if the party who is subjected to the duress is not a person of ordinary courage and firmness, and if his mind was actually overpowered, he may avoid such transaction, even though

7 Fountain v. Bigham, 235 Pa. St. 35, 84 Atl. 131. "The threat must be of such a nature and made under such circumstances as to constitute a reasonable and adequate cause to control the will of the threatened person." Fountain v. Bigham, 235 Pa. St. 35, 84 Atl. 131.

8 Hackley v. Headley, 45 Mich. 569, 8 N.W. 511 [quoted in Guinn. v. Sump-ter Valley Ry. Co., 63 Or. 368, 127 Pac. 987].

9Horn v. Davis, 70 Or. 498, 142 Pac. 544.

10Kiler v. Wohletz, 79 Kan. 716, L. R. A. 1915B, 11, 101 Pac. 474.

11Kaus v. Gracey, 162 la. 671, 144 N. W. 625.

12 Snyder v. Samuelson, 140 Minn. 57, 167 N. W. 287 [citing Neibuhr v. Gage, 99 Minn. 149, 108 N. W. 884, 109 N. W. 1].

1"Qui cadere possit in virum con-stantem." Bracton 1, 2; c. 5 [quoted 1 Black. Com. 131].

"Not a vain fear but such as may befall a constant man." Co. Litt. 253b. But Coke is' speaking here of such mind of the person who actually was subjected to duress, and considered only the effect of such acts upon the mind of an ideal and abstract being. Even under the rigid common-law rule, if the evidence showed that the acts in question did not in fact overpower the mind of the person who was subjected thereto, the common law in such case regarded the effect upon the mind of such person, and not the effect upon the mind of an ideal and abstract person whom the law had set up as a standard to be applied in case the acts did in fact overpower the mind of the person who was subjected thereto.2

The first step in putting the common-law rule on a more rational basis was to hold that duress might consist of any conduct which could overpower the mind of an ordinarily firm man. This rule is repeated by many courts, in obiter at least; for few decisions seem really to rest on this principle.3 Thus where duress is caused by threats, it has been said that there must be a reasonable ground for belief that the party making the threat has the power to carry it into execution.4 Where the question has come squarely at issue the great majority of the courts have taken the second step necesdurese as will excuse actual entry on land and will allow a claim made by him "as near to the tenements as he dare," to be equivalent to an entry for purposes of seizin.

See the discussion in Galusha v. Sherman, 105 Wis. 263, 47 L. R. A. 417, 81 N. W. 495.

"Such a threat is not of a nature to overcome a firm and prudent man." Chitty on Con. 1, p. 271, 272 (eleventh edition).

2See Sec. 496.

3United States. Brown v. Pierce, 74 U. S. (7 Wall.) 205, 19 L. ed. 134; United States v. Huckabee, 83 U. S. (16 Wall) 414, 21 L. ed. 457.

Arkansas. Bosley v. Shanner, 26 Ark. 280.

Indiana. Hines v. Hamilton Co., 93 Ind. 266.

Maine. Harmon v. Harmon, 61 Me. 227, 14 Am. Rep. 556; Higgins v. Brown, 78 Me. 473, 5 Atl. 269.

Massachusetts. Robinson v. Gould, 65 Mass. (11 Cush.) 55; Morse v. Woodworth, 156 Mass. 233, 248, 27 N. E. 1010, 29 N. E. 525.

Michigan. Bank v. Blodgett, 115 Mich. 160, 73 N. W. 120, 885.

Minnesota. Flanigan v. Minneapolis, 36 Minn. 406, 31 N. W. 359.

Missouri. Wolf v. Marshall, 52 Mo. 167; Wilkerson v. Hood, 66 Mo. App. 491.

Nebraska, Horton v. Bloedorn, 37 Neb. 666, 56 N. W. 321.

Virginia. Ford v. Engleman, 118 Va. 89, 86 S. E. 852.

West Virginia. Simmons v. Obert, 9 W. Va. 358.

Wisconsin. Wolff v. Bluhm, 95 Wis. 257, 60 Am. St. Rep. 115, 70 N. W. 73.

Wyoming. Barrett v. Mahnken, 6 Wyo. 541, 71 Am. St. Rep. 953, 48 Pac. 202.

4 United States. United States v. Huckabee, 83 U. S. (16 Wall) 414, 21 L. ed. 457.

Arkansas. Burr v. Burton, 18 Ark. 214; Bosley v. Shanner, 26 Ark. 280.

Connecticut. Barrett v. French, 1 Conn. 354, 6 Am. Dec. 241.

Illinois. Youngs v. Simm, 41 111. App. 28.

Maine. Harmon v. Harmon, 61 Me. 231, 14 Am. Rep. 556; Seymour v. Pres-cott, 69 Me. 376; Higgins v. Brown, 78 Me. 473, 5 Atl. 269.

Massachusetts. Morse v. Wood-worth, 155 Mass. 233, 248, 27 N. E. 1010, 29 N. E. 525.

Missouri. Wolf v. Marshall, 52 Mo. 167; Buchanan v. Sahlein, 9 Mo. App.

552.

Texas. Landa v. Obert, 45 Tex. 539.

5 United States. International Harvester Co. v. Voboril, 187 Fed. 973, 110 C. C. A. 311.

Alabama. Hartford, etc., Insurance Co. v. Kirkpatrick, 111 Ala. 456, 20 So. 651.

Arkansas. Burr v. Burton, 18 Ark. 214.

Idaho. Wilbur v. Blanchard, 22 Ida. 517, 126 Pac. 1069.

Illinois. Bonney v. Bonney, 237 111. 452, 86 N. E. 1048; Youngs v. Simm, 41 111. App. 28; Overstreet v. Dunlap, 56 111. App. 486.

Indiana. Stanley v. Dunn, 143 Ind. 495, 42 N. E. 008; Baldwin v. Hutchinson, 8 Ind. App. 454, 35 N. E. 711.

Iowa. Callendar Savings Bank v. Loos, 142 la. 1, 120 N. W. 317; Kaus v. Gracey, 162 la. 671, 144 N. W. 625,

Kansas. Williamson-Hansell, Frazier Co. v. Ackerman, 77 Kan. 502, 20 L. R. A. (N.S.) 484, 94 Pac. 807.

Massachusetts. Silsbee v. Webber, 171 Mass. 378, 50 N. E. 555; Anthony & Cowell Co. v. Brown, 214 Mass. 439, 101 N. E. 1056.

Michigan. Meech v. Lee, 82 Mich. 274, 46 N. W. 383; Cribbs v. Sowle, 87 Mich. 340, 24 Am. St. Rep. 166, 49 N. W. 587; Miller v. Lumber Co., 98 Mich. 163, 39 Am. St Rep. 524, 57 N. W. 101.

Montana. Rossiter v. Loeber, 18 Mont. 372, 45 Pac. 560.

Nebraska. First National Bank v. Sargent, 65 Neb. 594, 59 L. R. A. 296, 91 N. W. 595; Nebraska Mutual Bond Association v. Klee, 70 Neb. 383, 97 N. W. 476.

New Jersey. Earle v. Hosiery Co., 36 N. J. Eq. 188.

New York. Eadie v. Slimmon, 26 N. Y. 9, 82 Am. Dec. 395.

Ohio. James v. Roberts, 18 Ohio 548.

Oklahoma. Anderson v. Kelley, 57 Okla. 109, 156 Pac. 1167; Edmondston v. Porter, - Okla. - , 162 Pac. 692; Huston v. Domeny, - Okla. - , 173 Pac. 805.

Oregon. Parmentier v. Pater, 13 Or. 121, 9 Pac. 59.

Pennsylvania. Sulzner v. Oappeau-Lemley, etc, Co., 234 Pa. St. 162, 83 Atl. 103; Fountain v. Bigham, 235 Pa. St. 35, 84 Atl. 131.

Wisconsin. Galusha v. Sherman, 105 Wis. 263, 47 L. R. A. 417, 81 N. W. 495. '

"Under the modern theory duress is to be tested, not by the nature of the acts or threats, but rather by the state of mind of the victim induced by such acts and threats." Williamson-Halsell Frazier Co. v. Ackerman, 77 Kan. 502 20 L. R. A. (N.S.) 484, 94 Pac. 807.

"The law no longer allows a person to enjoy, without disturbance, the fruits of his iniquity, because his victhe threats which were used would not have influenced an ordinary man.6 A threat of criminal prosecution of A's son-in-law upon a well-founded criminal charge may operate as duress upon A, and compel him to sign notes in payment of the amount which his son-in-law had embezzled, although he did not have any affection for his son-in-law, but feared the disgrace which his daughter would feel if her husband were imprisoned in the penitentiary, and the effect of such disgrace upon her.7 A request for a charge to the effect that to constitute duress, fear of death or bodily harm or imprisonment should be engendered, is properly refused.8 It is error for the trial court to charge that duress exists in presenting a revolver or some other imminent apparent danger to one's life, tim was not a person of ordinary courage; and no longer gauges the acts that shall be held legally sufficient to produce duress by any arbitrary standard, but holds him who, by putting another in fear, shall have produced in him a state of mental incompetency to contract, and then takes advantage of such condition, no matter by what means such fear be caused, liable at the option of such other to make restitution to him of everything of value thereby taken from him." Galusha v. Sherman, 105 Wis. 263, 47 L. R. A. 417, 81 N. W. 495.

"Nor in my opinion is it the true policy of the law to make an arbitrary and unyielding rule in such cases to apply to all alike without regard to age, sex, or condition of mind. Weak and cowardly people, and old and ignorant persons, are the ones that need the protection of the courts, and they are the ones usually operated upon and influenced by threats." Cribbs v. Sowle, 87 Mich. 340, 24 Am. St. Rep. 166, 49 N. W. 587 [quoted in Baldwin v. Hutchinson, 8 Ind. App. 454, 35 N. E. 711].

"To constitute duress sufficient to avoid a contract in this state, the means adopted need only be of a character necessary to overcome the will and desire of the injured party, whether that person be below or above the average person in firmness and courage, and whether the means employed come clearly within the common-law definition of duress or otherwise. In other words, the law extends its protection to an individual without reference to whether he is weak intellectually, and refuses to measure his rights by an arbitrary yardstick avowedly applicable only to men of ordinary intellect, firmness and courage." Nebraska Mutual Bond Association v. Klee, 70 Neb. 383, 97 N. W. 476.

"No arbitrary standard can be fixed in determining what in fact constitutes duress or menace in any given case, for what would accomplish that result in one instance might totally fail in another. The means employed, the age and sex, physical condition, mental characteristics, and the environment of the complaining party are some of the matters which may properly be considered in determining the question." Anderson v. Kelley, 57 Okla. 109, 156 Pac. 1167.

6 Silsbee v. Webber, 171 Mass. 378, 50 N. E. 555; Anthony & Cowell Co. v. Brown, 214 Mass. 439, 101 N. E. 1056.

7 Nebraska Mutual Bond Association v. Klee, 70 Neb. 383, 97 N. W. 476.

8 Liebau v. Miller, 89 Kan. 697, 132 Pac. 173.

if the evidence shows that threats of arrest and imprisonment were the means of duress which were employed.9 The difference between the old rule and the new amounts, in fact, to less than appears at first because in the absence of affirmative evidence the person subjected to duress must be assumed to be ordinarily firm and prudent.10 In discussing duress, accordingly, we must consider (1) what acts or words may in contemplation of. law amount to duress; (2) whether such conduct did in the particular case cause duress; and (3) the effect of duress if it exists.

In some jurisdictions duress is defined by statute,11 and generally the test which is adopted by statute is that of the effect upon the mind of the person who is subjected thereto.12