2 Oates v. Hudson, 6 Exch. 346; 5 Eng. Law & Eq. 469, and note; Carey v. Prentice, 1 Root, 91; Chase v. Dwinal, 7 Greenl. 134; Ripley v. Gelston, 9 Johns. 201; Severance v. Kimball, 8 N. H. 386; Elliott v. Swartwout, 10 Peters, 138; Parker v. Bristol Railway Co., 6 Exch. 702; 7 Eng. Law & Eq. 528. See Foshay v. Ferguson, 5 Hill, 158; Sasportas v. Jennings, 1 Bay, 470; Collins v. Westbury, 2 Bay, 211; Nelson v. Suddarth, 1 Hen. & Munf. 350.

3 Cobb v. Charter, 32 Conn. 358 (1865). And see Maxwell v. Griswold, 10 How. 242; Oates v. Hudson, 6 Exch. 346; 5 Eng. Law & Eq. 469.

4 Belote v. Henderson, 5 Cold. 471 (1868). A bailee is not liable if compelled by duress to part with the goods intrusted to him. Waller v. Parker, 5 Cold. 476 (1868).

§ 512. The general rule of law is, that imprisonment, under regular and formal legal process, does not constitute such duress as will invalidate the contract of the prisoner. Executio juris non habet injuriam 3 To constitute duress at law, the arrest must have been originally illegal, or have become so by the subsequent abuse of it,4 as where an officer, having arrested a man in one State, takes him to his home in another, and then induces his wife to give a mortgage of property, in which he joins, under threats of taking him back to prison.5 Yet where one caused another to be arrested on charge of felony under a warrant from a justice of the peace, and discharged him upon his sealing a bond for 10, it was held, that the deed might be avoided, the proceedings being a mere pretext to cover the deceit. But this seems rather on the ground of fraud than of duress. If, therefore, a prisoner execute a deed or note, or make any other agreement, in order to obtain his freedom, it will be binding upon him, if he be legally imprisoned upon probable cause, and without malice; although the plaintiff actually have no well-founded cause of action.6 But

1 Collins v. Westbury, 2 Bay, 211; Sasportas v. Jennings, 1 Bay, 470. See also Nelson v. Suddarth, 1 Hen. & Munf. 350.

2 InFoshay w. Ferguson, 5 Hill, 158, Bronson, J., said: *'I entertain no doubt that a contract procured by threats and the fear of battery, or the destruction of property, may be avoided on the ground of duress. There is nothing but the form of a contract in such a case, without the substance. It wants the voluntary assent of the party to be bound by it. And why should the wrong-doer derive an advantage from his tortious act ? No good reason can be assigned for upholding such a transaction."

3 Bac. Abr. Duress, A.; Co. Litt. 253; 2 Inst. 482; Bull. N. P. 172; 1 Black. Comm. 136; Chitty on Cont. 206; Shep. Touch. 61; Stepney v. Lloyd, Cro. Eliz. 647; Shephard v. Watrous, 3 Caines, 166; Stouffer v. Latshaw, 2 Watts, 167; Watkins v. Baird, 6 Mass. 511; Alexander v. Pierce, 10 N. H. 494; Eddy v. Herrin, 17 Me. 338.

4 Ibid.

5 Brooks v. Berryhill, 20 Ind. 97 (1863).

6 This doctrine is asserted (1 Lev. 68) where, after judgment, a defendant having no good cause of action, caused the plaintiff to be arrested and detained in prison, threatening him that if he would not seal a release, he should lie there and rot; and thereupon he sealed one and was discharged, and it was ruled by Bridgman, C. J., at Guildhall, that this release could if a man falsely, maliciously, and without probable cause, sue out a process, regular in form, to arrest and imprison another, not be avoided by duress, because he was in custody in the course of law, by the king's writ, when he sealed. The same rule is supported in Waterer v. Freeman, Hob. 266; Shep. Touch. 62. Parsons, C. J., in Watkins v. Baird, 6 Mass. 511, says: "It is a general rule that imprisonment by order of law is not duress, but to constitute duress by imprisonment, either the imprisonment, or the duress after, must be tortious and unlawful. If, therefore, a man, supposing that he has cause of action against another, by lawful process cause him to be arrested and imprisoned, and the defendant voluntarily execute a deed for his deliverance, he cannot avoid such deed by duress of imprisonment, although in fact the plaintiff had no cause of action. And although the imprisonment be lawful, yet, unless the deed be made freely and voluntarily, it may be avoided by duress. And if the imprisonment be originally lawful, yet if the party obtaining the deed detain the prisoner in prison unlawfully, by covin with the gaoler, this is a duress which will avoid the deed. But when the imprisonment is unlawful, although by color of legal process, yet a deed obtained from a prisoner for his deliverance, by him who is a party to the unlawful imprisonment, may be avoided by duress of imprisonment. In Aleyn, 92, debt was sued on a bond, and duress of imprisonment pleaded in bar. The plaintiff had, on charging the defendant with felony in stealing a horse, procured a warrant from a justice, on which the defendant was arrested and imprisoned, and sealed the bond to the plaintiff to obtain his discharge, which was done, the horse appearing to be his own horse. Roll, J., directed the jury that the proceedings being had to cover the deceit, the bond was obtained by duress.

"And in our opinion, it is a sound and correct principle of law, when a man shall falsely, maliciously, and without probable cause, sue out a process in form regular and legal, to arrest and imprison another, and shall obtain a deed from a party thus arrested to procure his deliverance, such deed may be avoided by duress of imprisonment. For such imprisonment is tortious and unlawful as to the party procuring it; and he is answerable in damages for the tort, in an action for a false and malicious prosecution; the suing of legal process being an abuse of the law, and a proceeding to cover the fraud. And although Bridgman, in 1 Lev. 68, 69, is made to say, that imprisonment in custody of law by the king's writ will not be duress to avoid a deed, when the arrest is without cause of action, because the party has his remedy by action of the case; yet this must be a mistake, as there is no remedy by action for suing a groundless suit, unless the suit be without probable cause, and malicious. And if it be, certainly the imprisonment is wrongful, as to the party who maliciously procured it."See also in Bull. N. P. 172, and in 1 Lilly, Abr. 494, tit. Duress, 6; Terms of the Law, tit. Duress, 163 b. The distinction asserted in the text, though it does not quite reconcile the cases, approaches the nearest to a solution of the difficulty. See Watkins v. Baird, 6 Mass. 511; Richardson v. Duncan, 3 N. H. 508; Nelson v. Suddarth, 1 Hen. & Munf. 350; 20 Am. Jur. 23. vol. I. 30 and thereby obtain a deed from the party thus arrested, it may be avoided on account of duress of imprisonment; and the distinction between this case, and the case before stated, resides in the malicious intention.1 A note obtained from the maker when under arrest upon a false charge of a felonious assault upon the payee, is void for duress, both as against the maker and also his surety.2 Where, therefore, there is an arrest for improper purposes, without just cause, or an arrest for just cause, but without lawful authority, or an arrest for a just cause with lawful authority, but for an improper purpose, and the person arrested pays money for his enlargement, he will be considered as having paid the money by duress of imprisonment, and may recover it in an action for money had and received.3 If, however, a prisoner make an agreement to pay a just debt, while under legal imprisonment, he cannot avoid it on the ground of duress.4 The common law does not curiously inquire into the motives of the person causing the imprisonment, unless they are apparently malicious, but it contents itself, in common cases, with the presumption that the process of law was sued out in good faith.