§ 513. In order to constitute duress by imprisonment, either the imprisonment, or the duress consequent upon it, must be tortious and unlawful.5 If, therefore, while a person is illegally restrained and deprived of his liberty, he make a bond or any other agreement with the person restraining him, he may avoid it.1 So, also, if the process under which the party is arrested, be merely void for want of jurisdiction in the court issuing the warrant, the arrest is illegal, and any contract made by the prisoner may be avoided by him on account of duress. Thus, if he give a bail-bond, it cannot be enforced against him or his sureties.2
1 Watkins v. Baird, 6 Mass. 506; Richardson v. Duncan, 3 N. H. 508.
2 Osborn v. Robbins, 36 N. Y. 365 (1867). And see Strong v. Grannis, 26 Barb. 123; Eadie v. Slimmon, 26 N. Y. 9; Cumming v. Ince, 11 Q. B. 112; Richards v. Vanderpoel, 1 Daly, 71.
3 Chitty on Cont. by Perkins, p. 207, note 1; Richardson v. Duncan, 3 N. H. 508; Nelson v. Suddarth, 1 Hen. & Munf. 350; 20 Am. Jur. 23; Severance v. Kimball, 8 K H. 386; Fisher v. Shattuck, 17 Pick. 252; Whitefield v. Longfellow, 13 Me. 146.
4 Shephard v. Watrous, 3 Caines, 168; 2 Inst. 482; 3 Leon. 239; Perk. § 18; Crowell v. Gleason, 1 Fairf. 325; Meek v. Atkinson, 1 Bailey, 84; Severance v. Kimball, 8 N. H. 386; Waller i>. Cralle, 8 B. Mon. 11.
5 Watkins v. Baird, 6 Mass. 506; 2 Inst. 482. See Bane v. Detrick, 52 111. 19 (1869). And a mortgage by one legally imprisoned, as security for the payment of a certain sum to the county, as the condition of a pardon, is not void for duress. Rood v. Winslow, 2 Doug. (Mich.) 68.
§ 514. If the imprisonment be lawful, and the prisoner be abused by force, or by unnecessary and unlawful privation, as of food, and be thereby induced to make a contract, it may be avoided by him. But the force or danger must be such as may well overcome a firm man, and not suspicio cujuslibet vani et meticulosi hominis, and it must also be immediate.
§ 515. Duress by threat is divided by Lord Coke into four classes. Through fear, 1st. Of Loss of Life; 2d. Of Loss of Member; 3d. of Mayhem; 4th. Of Imprisonment.
§ 516. The common law limits the application of the doctrine of duress by threats to cases of personal restraint or injury; and having grown up in the feudal age, when every man was a soldier, dependent on his own arm for the carving out of his fortune, when literature and science were little heeded and less loved, and when home was a tent, or an armed castle, the sympathies of the law were naturally with the person and not with the property, and it guarded more jealously the liberties and physical force of its freemen, than their fortunes and rights of property. A threat, therefore, to burn a house, or to destroy goods, was considered as idle; for the law knew well that the swords of its subjects hung at their sides, and could guard their homes. But the loss of an arm struck a soldier from the ranks of those who could defend its majesty; and this could be ill sustained, while the wars were so deadly a canker to life, and while in the dungeons of strong barons the sword might strike the unprotected head of the prisoner, or famine starve him into an agreement at once lawless and oppressive.3 But the reasons for this doctrine do not now apply, and the policy of a peaceful age would not perhaps agree with the harsher rule of the feudal law. Still the doctrine has never been overruled, and is at present the law.1 It would, however, seem doubtful whether a threat to burn a house, or to destroy goods, would not now be considered as sufficient duress to avoid a contract.2
1 1 Black. Comm. 136.
2 Cro. Eliz. 647; 4 Inst. 47; Thompson v. Lockwood, 15 Johns. 256. See also Norton v. Danvers, 7 T. R. 376, where Lord Kenyon says, that a bail-bond, executed by a. person under arrest, where the affidavit to hold to bail is insufficient, may be avoided on the ground of duress. Kavanagh v. Saunders, 8 Greenl. 426; Fisher v. Shattuck, 17 Pick. 252.
3 2 Inst. 483; Go. Litt. 253 b; Bac. Abr. Duress, A.
§ 517. No person can avoid a contract for duress, unless the duress be imposed upon him personally; and if the parties, therefore, be forced into making a contract by duress inflicted upon only one of them, it can only be avoided by him upon whom the duress was practised;3 for no one can avoid his own contract for the imprisonment or danger of any other than of himself. So, also, a surety is liable upon an agreement made by himself and principal, in order to relieve the latter only from duress.4 This doctrine applies, however, only to specialties which are governed by the rules of the common law, and not to cases where there is a statute provision. If the contract of a surety be by parol, it will, in such circumstances, be void for want of consideration.6
§ 518. If duress be imposed by a stranger at the instance of the party who is to receive the benefit, it will invalidate the contract.6 It was formerly held, however, that if the duress was by a stranger, and the obligee was not a party thereto, the agreement could not be avoided.7 But the better opinion seems now to be, that the party receiving the benefit of a deed so procured, cannot take advantage of it, whether he were a party to the duress or not. Such, also, is the rule of the Roman law.1 So, "if one threaten a man to kill or maim him, if he will not seal a deed to a stranger, and thereupon he do so, this is void, as if it were to the party himself. If one threaten a man to kill him, unless he will seal a deed to him and three others, and he do so, this is void as to all the four." 2 But a threat by a party, that he will cause another to be imprisoned, is not such duress as to avoid a contract, unless the menace be of unlawful imprisonment. A threat to do a legal act, or to subject the party to the legal consequences of a refusal to make an agreement, is not duress.3 Thus, a threat by a judgment creditor to levy his execution is not such duress as to invalidate an agreement to pay the sum due, made in consequence thereof.4 But a threat of unlawful imprisonment or arrest5 is duress.6 A contract by a wife to accept a certain allowance from her husband, made under a threat that he would send her to another insane asylum, is not void for duress.7