This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The elements of duress of imprisonment are substantially the same for purposes of recovering payments as for avoiding contracts.1 Money unlawfully extorted by imprisonment, used as a means of extortion whether such imprisonment2 was lawful or not, or by threats of immediate imprisonment,3 may be recovered. Thus money paid by one wrongfully arrested to secure his release,4 or where an officer without authority of law takes a cash deposit to secure the appearance of a prisoner,5 may be recovered. So property surrendered by one under threat of imprisonment if such property is not surrendered may be recovered.6 Even if the arrest or threatened arrest is itself lawful, money paid thereunder may be recovered if such arrest was used as a means of extorting such payment.7 If, however, the imprisonment is lawful and is not made the means of extortion, it does not of itself constitute duress, and does not afford a basis for recovery of payments.8 A threat of imprisonment not immediate is ordinarily not duress;9 and money paid thereunder cannot ordinarily be recovered as paid under duress;10 but under special circumstances, as where the person to whom the threat is made and against whom it is directed is old, weak and infirm, a payment extorted by such threats may be recovered.11 Since duress may exist where the arrest of a third person in certain relations to the promisor or payor is made or threatened,12 such payment may be recovered.13 Thus, money extorted from a wife by a threatened imprisonment of her husband, as under circumstances which would injure his health,14 may be recovered. Thus where a husband was threatened with lawful arrest when in broken health and about to go to Europe with his wife in the hope of regaining health, and arrest and detention would produce a serious effect upon his physical condition, a payment made by his wife to prevent such arrest is made under duress and may be recovered.13 The mere fear of future imprisonment without any threat thereof is not such duress as to enable the party who has made the payment to recover it.16
3 Lamson v. Boyden, 57 111. App. 232; Minneapolis, etc., Co. v. Cunningham, 59 Minn. 325; 61 N. W. 329; De la Cuesta v. Ins. Co., 136 Pa. St. 62, 658; 9 L. R. A. 631; 20 Atl. 505.
4 See Sec. 812.
singalls v. Miller, 121 Ind. 188; 22 N. E. 995.
6 Ingalls v. Miller, 121 Ind. 188; 22 N. E. 995.
1 See Ch. XIII.
2 Schommer v. Farwell, 56 111. 542; Voiers v. Stout, 4 Bush. (Ky.) 572; Richardson v. Duncan, 3 N. H. 508; Reinhard v. Columbus, 49 O. S.
257; 31 N. E. 35; Fillman v. Ryon. 168 Pa. St. 484; 32 Atl. 89; Reek-man v. Swartz, 64 Wis. 48; 24 N. W. 473. And see Houtz v. Uinta County, - Wyom. -; 70 Pac. 840; where the right to recover a fine imposed by a justice who had no final jurisdiction was held to depend on that question whether such payment was made to procure release from imprisonment it could be recovered; but if merely to avoid inconvenience in the district court to which an appeal ha4 been allowed, it could not.
3 Baldwin v. Hutchison, 8 Ind. App. 454; 35 N. E. 711; Foss v. Whitehouse, 94 Me. 491; 48 Atl. 109; Deshong v. New York, 176 N. Y. 475; 68 N. E. 880.
4 Sweet v. Kimball, 166 Mass. 332; 55 Am. St. Rep. 406; 44 N. E. 243.
5 Reinhard v. Columbus, 49 O. S. 257; 31 N. E. 35.
6 Pryor v. Morgan, 170 Pa. St. 568; 33 Atl. 98.
7 Morse v. Woodworth, 155 Mass. 233; 27 N. E. 1010; 29 N. E. 525; Richardson v. Duncan, 3 N. H. 508; Heckman v. Swartz, 64 Wis. 48; 24 N. W. 473.
8Fillman v. Ryon, 168 Pa. St. 484; 32 Atl. 89; Meachem v. New-port, 70 Vt. 67; 39 Atl. 631.
9 See Sec. 251.
10 St. Louis, etc., R. R. v. Thomas, 85 111. 464; Hines v. Board, etc., 93 Ind. 266; Hilborn v. Bueknam, 78 Me. 482; 57 Am. Rep. 816; 7 Atl. 272; Claflin v. McDonough, 33 Mo. 412; 84 Am. Dec. 54.
11Cribbs v. Sowle, 87 Mich. 340; 24 Am. St. Rep. 166; 49 N. W. 587.
12 See Sec. 259.
13Gorringe v. Reed, 23 Utah 120; 90 Am. St. Rep. 692; 63 Pac. 902; Schultz v. Culbertson, 49 Wis. 122; 4 N. W. 1070; 46 Wis. 313; 1 N. W. 19.