Unlawful imprisonment may undoubtedly amount to duress,1 as where a father is arrested on an illegal warrant charging him with kidnapping his own minor child, and is thereby coerced into signing a release of his authority over the child.2 If one who is unlawfully imprisoned is obliged to sign an agreement not to bring an action for damages against the party who caused such imprisonment as a condition, of his release, such release is obtained by duress.3 If A's son, X, is in jail, charged with murder, and X's lawyer, B, threatens to have the case postponed and to have B kept in jail unless A gave to B his note for the fine of others who were accused of such crime and who had been released, it was held that duress existed, even if an illegal imprisonment was an essential element of duress, since the imprisonment which was threatened in this case was illegal.4 At the early common law, it seems that lawful imprisonment could not amount to duress.5 It has been held that where A is detained in prison under a threat that he should lie there and rot unless he executed a sealed release, duress did not exist, since he had an ample legal remedy in his action on the case, even if he was arrested in the first instance without any cause of action.6 At modern law, if the imprisonment is lawful and is used as a means of extortion, duress exists,7 as where the arrest was made without any intention of prosecuting, but solely to obtain the instrument signed.8 If the imprisonment is lawful and made in good faith, without the intention of extorting the instrument in question, some courts hold that duress does not exist"9 A note given by the father of a bastard to the mother while the father is under arrest is not given under duress.10 A bond for support given by a husband while under arrest for non-support is held not to be rendered invalid by such arrest.11 The cases of arrest for non-support and bastardy may be justified on the theory that the legislature has impliedly treated such contracts as valid, even though made by one under arrest, since the statute provides for arrest as part of the procedure, and it also recognizes the validity of compromises made under such arrest.

1 United States. Brown v. Pierce, 74 U. S. (7 Wall) 205, 19 L. ed. 134.

Georgia. Hunt v. Hunt, 94 Ga. 257, 31 S. E. 515.

Massachusetts. Fisher v. Shattuck, 34 Mass. (17 Pick.) 252.

New Jersey. Schuster v. Arena, 83 N. J. L. 79, 84 Atl. 723.

Oklahoma. Wheeler v. Pettyjohn, 14 Okla. 71, 76 Pac. 117.

Tennessee. Willard v. Willard, 65 Tenn. (6 Baxt.) 297, 32 Am. Rep. 529.

West Virginia. Lyons v. Davy-Pocahontas Coal Co., 75 W. Va. 739, 84 S. E. 744.

2Hunt v. Hunt, 94 Ga. 257, 31 S. E. 515.

3Lyons v. Davy-Pocahontas Coal Co., 75 W. Va. 739, 84 S. E. 744.

4Bailey v. Devine, 123 Ga. 653, 107 Am. St. Rep. 153, 51 S. E. 603.

5I Levinz 68.

6 1 Levinz 68.

7 Illinois. Mayer v. Oldham, 32 111. App. 233.

Massachusetts. Morse v. Woodworth, 155 Maas. 233, 27 N. E. 1010, 29 N. E. 525; Sweet v. Kimball, 166 Mass. 332, 55 Am. St. Rep. 406, 44 N. E. 243.

Ohio. Reinhard v. Columbus, 49 O. S. 257, 31 N. E. 35.

Oklahoma. Wheeler v. Pettyjohn, 14 Okla. 71, 76 Pac. 117.

Pennsylvania. Fillman v. Ryon, 168 Pa. St. 484, 32 Atl. 89.

West Virginia. Bolyard v. Bolyard, 79 W. Va. 554, L. R. A. 1917D, 440, 91 S. E. 529.

Wisconsin. Heckman v. Swartz, 64 Wis. 48, 24 N. W. 473.

8 Mayer v. Oldham, 32 111. App. 233.

The better view seems to be that duress exists if the prisoner is actually coerced into signing an instrument that he otherwise would not have signed but for such imprisonment, whether it is lawful or unlawful;12 as an agreement to relinquish wages signed by a cook on a ship on being released from irons,13 or a re-execution of a note and mortgage by a creditor who has been discharged by a composition in order to secure his release from an arrest upon a charge of larceny.14 The arrest of A on a warrant issued by a justice of the peace, who is the president of a corporation to which A is indebted, is duress for which a conveyance by A's wife in payment of such debt, may be avoided.15

9Arkansas. Shattuck v. Watson, 53 Ark. 147, 7 L. R. A. 551, 13 S. W. 516.

Connecticut. Mascolo v. Montesanto, 61 Conn. 50, 29 Am. St. Rep. 170," 23 Atl. 714.

Indiana. Harrison Township v. Addison, 176 Ind. 389, 96 N. E. 146.

Iowa. James v. Dalbey, 107 la. 463,

78 N. W. 51.

Maine. Hilborn v. Bucknam, 78 Me. 482, 57 Am. Rep. 816, 7 Atl. 272; Thorn v. Pinkham, 84 Me. 101, 30 Am. St. Rep. 335, 24 Atl. 718.

Massachusetts. Watkins v. Baird, 6 Mass. 506, 4 Am. Dec. 170.

Nebraska. McCormick Harvesting Mch. Co. v. Miller, 54 Neb. 644, 74 N. W. 1061.

New Jersey. Clark v. Turnbull, 47 N. J. L. 265, 54 Am. Rep. 157.

New York. Knapp v. Hyde, 60 Barb. (N. Y.) 80.

West Virginia. Bolyard v. Bolyard,

79 W. Va. 554, L. R. A. 1917D, 440, 91 S. E. 529. To the same effect, see obiter in Bailey v. Devine, 123 Ga. 653, 107 Am. St. Rep. 153, 51 S. . 603.

10 Jones v. Peterson, 117 6a. 58, 43 S. E. 417.

11 Bolyard v. Bolyard, 79 W. Va. 554, L. R. A*. 1917D, 440, 91 S. E. 529.

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

Georgia. Jordan v. Beecher, 143 Ga. 143, L. R. A. 1915D, 1122, 84 S. E. 549.

Massachusetts. Morse v. Woodworth, 155 Mass. 233, 27 N. E. 1010, 29 N. E. 525.

«

Michigan. Feller v. Green, 26 Mich. 70.

New York. Adams v. Bank, 116 N. Y. 606, 15 Am. St. Rep. 447, 6 L. R. A. 491, 23 N. E. 7.

Oklahoma. Wheeler v. Pettyjohn, 14 Okla. 71, 76 Pac. 117.

Pennsylvania. Pflaum v. McClintock, 130 Pa. St. 369, 18 Atl. 734.

Wisconsin. Heckman v. Swartz, 64 Wis. 48, 24 N. W. 473. "Where there is an arrest for improper purposes without a just cause, or where there is an arrest for a just cause but without lawful authority, or when there is an arrest for a just cause and under lawful authority for unlawful purposes, it may be construed a duress." Richardson v. Duncan, 3 N. H. 508.

13The Fred E. Sander, 95 Fed. 829.