The original English rule was that neither seizure nor destruction of property, actual or threatened, could be treated as duress for the purpose of avoiding a contract thereby induced.1 Thus duress could not be interposed as a defense to a note for an amount of rent greatly in excess of that due, given to obtain the release of an excessive distress.2 By some process of reasoning the English courts reached the conclusion that a payment of money induced by duress of property could be recovered, but an executory contract induced thereby could not be avoided.3 The American courts in early cases first followed the English courts,4 then began to distinguish the more extreme cases,5 and finally repudiated the English rule as an entirety. "The two rules recognized by the courts of England, it seems to us, lead to an obvious absurdity; that is to say, that when one pays money in order to obtain possession of his goods when unlawfully detained by another, he may recover it back, but if he gives his note under the same circumstances and for the same purpose, he can not successfully resist its payment."6 "If, therefore, such be the case where money has been paid, a fortiori is such a defense available in an action upon a promissory note extorted in the manner alleged."7 The English rule was based upon two reasons: (1) that duress of property could not affect the firm and courageous man whom the law assumed as the test for the influence of duress;8

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

15Jordan v. Beecher, 143 Ga. 143, L. R. A. 1915D, 1122, 84 S. E. 549.

1Coke, 2 Inst. 483; 1 Black. Com. 131; Sumner v. Ferryman, 11 Mod. 201; Skeate v. Beale, 11 Ad. & El. 983.

2Skeate v. Beale, 11 Ad. & El. 983.

3Atlee v. Backhouse, 3 M. & W. 633.

4 Edwards v. Handley, 3 Ky. (Hard.) 602, 3 Am. Dec. 745. (In obiter, as in this case, fear of loss of property by process of law was invoked.)

5 Foshay v. Ferguson, 5 Hill (N. Y.) 154. (A case in which in obiter the court said that an illegal distress of property would not be duress, but a threatened destruction of property would be.)

6Oliphant v. Markham, 79 Tex. 543, 23 Am. St. Rep. 363, 15 S. W. 569.

7 White v. Heylman, 34 Pa. St. 142 [quoted in Oliphant v. Markham, 79 Tex. 543, 23 Am. St. Rep. 363, 15 S. W. 569].

8See Sec. 482.

(2) that the party threatened with loss of property had an adequate remedy in trover, replevin, and the like.9 It will be seen that battery and duress of property are treated by Blackstone as equally inoperative. The first reason is now very generally discarded in the United States.10 The second reason is still recognized in some jurisdictions where no circumstances of especial hardship exist. Some courts hold that if under the facts replevin is an adequate remedy, duress of property can not exist;!1 others that such duress may exist even if the property could be recovered by replevin.12 Under the first of these views, a seizure of A's property by an officer having a writ of execution against B, is not such duress as will avoid a receipt and contract to return such property given by A to such officer.13 The influence of the English rule is thus marked even in some jurisdictions which have discarded it as an entirety. An accurate statement of the modern American rule is therefore difficult on account of a lack of harmony in the decisions of the courts. Further, while many courts term detention of goods duress, others refer to it as merely analogous to duress.14 It is said to be compulsion, though not amounting to technical duress.15 The following classes of cases should be distinguished: (1) if circumstances of especial hardship exist, American courts are practically unanimous in holding that a promise made to obtain property unlawfully detained may be avoided for duress.16 Thus a promise made to obtain a release of perishable property, such as oysters, from an unlawful attachment, was held to be induced by duress.17 So where an officer, A, had taken B's banknotes on attachment and after such attachment was released, A refused to redeliver such notes to B unless B would agree to pay A, and would pay A some of this money as a reward for A's alleged finding of such notes after they had been lost, and B did so because as A knew, X, another officer, was about to attach such notes, B's promise and payment were held to have been made under duress.18 So where A, an officer, had levied a sequestration on B's property, which he refused to release unless B would give a bond conditioned to do acts other and further than required by law, duress was held to invalidate the bond as a common-law bond.19 So where B was indebted to A, and B owned a horse by whose labor B made his living and supported his family, which horse was exempt from execution, and A obtained possession of such horse by fraudulently representing that it was to be sold for cash, and then refused to redeliver it until B gave a note secured by mortgage on such horse for a sum in excess of B's debt to A, it was held that B could avoid such mortgage.20 The refusal of a carrier to transport cattle belonging to a shipper which are in the possession of the carrier and which are being injured by delay unless the shipper signs a contract in writing by which the liability of the carrier is limited, amounts to duress for which such contract may be avoided.21 A's threat to leave B's employment before the expiration of the term, to take a fund which A had collected for B and to divert certain valuable contracts which A controlled, amounts to duress.22 The threat of immigration officials to detain a steamship until certain aliens who are suffering from contagious diseases for which they could not have been excluded from the United States should recover, is duress which will render voidable a contract by which such steamship company agrees to pay the hospital expenses of such aliens.23 On the other hand, the act of the United States in withholding A's barges wrongfully, under a threat that it would retain the barges and retain all compensation unless A would make a new contract, is not duress for which A may avoid such contract.24 (2) Even if no circumstances of especial hardship exist, the decided preponderance of authority seems to be in favor of the rule that wrongful seizure or detention of property may be such duress as to invalidate contracts induced thereby,25 and may be a ground for avoiding such liability.26 Thus X, A's clerk pledged notes owned by A, to B, to secure X's gambling debt. B refused to surrender them till A gave his note for X's debt. To secure the release of such notes A did so. Such note was held voidable as given under duress.27 A threat on the part of those who are in control of a corporation to refrain from paying the debts of such corporation and to permit its property to be sold for the payment of such debts, may amount to duress of a minority stockholder who is induced, by such threats, to enter into a contract with those who are in charge of such corporation as a* means of saving his interest in the corporation.21 The refusal of a trustee to surrender any of the trust property unless the beneficiary signed a release of his rights on receiving a small part of the trust property, amounts to duress.29 Seizure of A's logs for alleged tolls is "duress of goods," for which A may avoid his note, given to B for such tolls.30 (3) If the party who is alleged to have exercised duress has done only what he had a legal right to do, duress can not exist.31 (4) The foregoing cases concern personalty. The doctrine of duress of property may apply to realty as well as to personalty, though ordinarily circumstances of especial hardship must exist to constitute duress.32

9 "A fear of battery, or being beaten, though never so well grounded, is no duress; neither is the fear of having one's house burned or one's goods taken away and destroyed, because in these cases, should the threat be performed, a man may have satisfaction by recovering equivalent damages." 1 Black. Com. 131.

10See Sec. 482.

11 Edwards v. Handley, 3 Ky. (Hard.) 602, 3 Am. Dec. 745; Kingsbury v. Sargent, 83 Me. 230, 22 Atl. 105; Bingham v.. Sessions, 14 Miss. (6 Sm. & M.) 13; Hibbard v. Mills, 46 Vt. 243.

12Carson, etc., Co. v. Patterson, 33 Cal. 334; Wilkerson v. Hood, 65 Mo. App. 491.

13 Kingsbury v. Sargent, 83 Me. 230, 22 Atl. 105. (A was a woman recently confined. The disturbance caused by seizing and driving away the cattle levied on was dangerous to a person in her condition and she receipted for the cattle in reliance on a statement by the officer that such receipt would not affect her rights. Nevertheless she was held bound thereby.)

14Buford v. R. R., 82 Ky. 286. The detention of goods is "a kind of moral duress." Dustin v. Farrelly, 81 Mo. App. 380. It is sometimes referred to as "practical compulsion which is nearly related to duress." Fitzgerald v. Construction Co., 44 Neb. 463, 62 N. W. 899.

15 Harris v. Cary, 112 Va. 362, 71 S. E. 551. See also, Weber v. Kirkendall, 44 Neb. 766, 63 N. W. 35; Nelson v. Nelson, 99 Neb. 456, 156 N. W. 1036.

16Illinois. Spaids v. Barrett, 57 111. 289, 11 Am. Rep. 10.

Kansas. St. Louis & S. F. R. Co. v. Gorman, 79 Kan. 643, 28 L. R. A. (N.S.) 637, 100 Pac. 647.

Nebraska. Fitzgerald v. Construction Co., 44 Neb. 463, 62 N. W. 899.

South Carolina. Collins v. Westbury, 2 Bay (S. Car.) 211, 1 Am. Dec. 643.

Texas. Wooters v. Smith, 56 Tex. 198.

Vermont. Lovejoy v. Lee, 35 Vt. 430.

17Spaid v. Barrett, 57 111. 289, 11 Am. Rep. 10.

18 Lovejoy v. Lee, 35 Vt. 430. .

19Wooters v. Smith, 56 Tex. 198.

20Lightfoot v. Wallis, 75 Ky. (12 Bush) 498. (The court spoke of such mortgage as void.)

21 St. Louis & S. F. R. Co. v. Gorman, 79 Kan. 643, 28 L. R. A. (N.S.) 637, 100 Pac. 647.

22Whitt v. Blount, 124 Ga. 671, 53 S. E. 205.

23 United States v. Holland-America Line, 205 Fed. 943.

24Silliman v. United States, 101 U. S. 465, 25 L. ed. 987.

25California. Carson River Lumber Co. v. Patterson, 33 Cal. 334.

Indiana. Bennett v. Ford, 47 Ind. 264.

Iowa. Foote v. DePoy, 126 la. 366, 106 Am. St. Rep. 365, 68 L. R. A. 302, 102 N. W. 112.

Minnesota. Joannin v. Ogilvie, 49 Minn. 564, 32 Am. St. Rep. 581, 16 L. R. A. 376, 52 N. W. 217.

Missouri. Wilkerson v. Hood, 65 Mo. App. 491.

Nebraska. Fitzgerald v. Construction Co., 44 Neb. 463, 62 N. W. 899.

South Carolina. Riggs v. Wilson, 30 S. Car. 172, 8 S. E. 848.

Texas. Oliphant v. Markbam, 79 Tex. 543, 23 Am. St. Rep. 363, 15 S. W. 569. "The weight of American authority is in favor of the doctrine that detention of goods under certain circumstances may constitute duress." Oliphant v. Markham, 79 Tex. 543, 23

Am. St. Rep. 363, 15 S. W. 569; Harris v. Cary, 112 Va. 362, 71 S. E. 551.

28 Adams v. Schiffer, 11 Colo. 15, 7 Am. St. Rep. 202, 17 Pac. 21; Bennett v. Ford, 47 Ind. 264.

"In civil cases, the rule as to duress has a broader application at the present day than that it formerly had. So when concessions are exacted through the necessity of a person, in order to save his property, illegally withheld by another, from destruction or irreparable injury, such a transaction may be avoided on the ground of compulsion, though not amounting to technical duress." Harris v. Gary, 112 Va. 362, 71 S. E. 551.

27 Oliphant v. Markham, 79 Tex. 543, 23 Am. St. Rep. 363, 15 S. W. 569. "A threat of instituting guardianship proceedings so as to deprive the party thus threatened of the control of his property, may amount to duress." Foote v. DePoy, 126 la. 366, 106 Am. St. Rep. 365, 68 L. R. A. 302, 102 N. W. 112; Hogan v. Leeper, 37 Okla. 655, 47 L. R. A. (N.S.) 475, 133 Pac. 190.