1 As to the reason for this rule, see Bacon's Abridgment, Duress, A.; 2 Starkie on Evid. 482 (4th Am. ed.); Chitty on Cont. 208.
2 See United States v. Huckabee, 16 Wall. 414, 432 (1872); Foshay v. Ferguson, 5 Hill, 154, 158.
3 Bac. Abr. Duress, B.; Huscombe v. Standing, Cro. Jac. 187; Bayly V. Clare, 2 Brownl. 276; Shep. Touch. 62; McClintick v. Cummins, 3 McLean, 158; Spaulding v. Crawford, 25 Tex. 155.
4 Mantel v. Gibbe, 1 Brownl. 64; McClintick v. Cummins, 3 McLean, 158; Huscombe v. Standing, Cro. Jac. 187; Shep. Touch. 62; Thompson v. Lockwood, 15 Johns. 256. This case, however, seems to come under the class of cases in which the contract is void for want of authority in the officer who exacts it. The contrary was held in Fisher v. Shattuck, 17 Pick. 252.
5 Evans v. Huey, 1 Bay, 13; Osborn v. Bobbins, 36 N« Y. 365; Inger-soll o. Roe, 65 Barb. 346 (1873).
6 1 Roll. Abr. 688. 7 Keilw. 154 a.
§ 519. The only exception to the rule that duress must be personal, is, that a husband can avoid a deed made by duress to his wife, or vice versd;8 for, by legal fiction, the husband and wife are but one person. But this exception is strictly confined to the relation of husband and wife, and does not extend to any other relationship between the parties.9
1 Heineccius, Elem. s. o. Pand. Lib. 4, tit. 2; Shep. Touch. 61; Jacob's Law Diet., Duress.
2 Shep. Touch. 61.
3 Alexander 9, Pierce, 10 K H. 494; Eddy v. Herrin, 17 Me. 338.
4 Wilcox v. Howland, 23 Pick. 167; Waller v. Cralle, 8 B. Mon. 11.
5 Hackett v. King, 6 Allen, 58; Taylor v. Jaques, 106 Mass. 291 (1871).
6 Worcester v. Eaton, 11 Mass. 379.
7 Biffin v. Bignell, 7H.&N. 877.
8 See Eadie v. Slimmon, 26 N. Y. 9 (1862).
9 The weight of authority is clearly to this effect; and so this doctrine is expressly laid down in Sheppard's Touchstone, 61, and by Twisden, J., in Wayne v. Sands, 1 Freeman, 351; but Wilde, J., in the same case, says: "If the duress be to a father or brother, and a son enter into bond, this is duress to the son, and he may plead it." So it is said in 2 Brownl. 276, 11 that a son may avoid his deed, by duress to his father, and so shall the father his deed, by reason of duress to the son." But Bacon, in his Abridgment, Duress, B., citing the case, and also 1 Roll. Abr. 687, puts a query against the doctrine. See Simms v. Barefoot, 2 Hayw. 402, in which the she might have obtained relief from such duress, if she had chosen.1
§ 520. Where there has been no actual contract, but compulsion has been used to extort money improperly, or where money has been paid under circumstances which give it the character of extortion, it may be reclaimed.1 Thus, where money was extorted under pretence of a toll, which was illegal, it was held that it could be reclaimed.2
§ 521. Where goods have been obtained by duress, and the wrong-doer is sued therefor, he cannot make title by showing that he paid a part of their value, although he may claim to have such payment taken into consideration in mitigation of damages.3
§ 522. In all cases of duress, the threatening or imprisonment must, of course, be the alternative, held out by the other party, to the end of enforcing the making of the contract.4
§ 523. A contract made under duress is not void, but only voidable; and it may be ratified either by an express confirmation, or by acts from which a ratification will distinctly be implied. The ratification will be of no effect, however, unless it be freely and voluntarily made. Thus, if one while under duress make an obligation, and afterwards when he is at liberty, take a defeasance upon it, the obligation is thereby ratified.6 So, if a proper and formal acknowledgment be made of a bargain and sale of land, duress cannot afterwards be pleaded in avoidance of it.6 So, also, if a party under duress promise, on consideration that he shall be released from all restraint, that he will execute a bond or other instrument, and, afterwards, while he is perfectly free, perform his promise, it is not avoidable.7 For whether the original promise were void or not for duress, the subsequent promise is not open to the same objection. So, also, an acknowledgment of a deed by a feme covert, if she be privately examined by the magistrate, cannot be avoided for duress, on the ground that rule laid down in the text is maintained. But the rule is extended to father and son in McClintick v. Cummins, 3 McLean, 158.
1 Chase v. Dwinal, 7 Greenl. 134.
2 Chase v. Dwinal, 7 Greenl. 134; Harmony v. Bingham, 1 Duer, 209.
3 Foshay v. Ferguson, 5 Hill, 154. 4 Shep. Touch. 61.
6 Ibid. 62, 288. 5 Ibid.
7 1 Roll. Abr. 687; Bac. Abr. Duress, C.; Worcester v. Eaton, 13 Mass. 377.
§ 524. By the common law, a contract made during duress is not void, but voidable; and the party on whom it is practised may avail himself of the duress, as a defence to an action thereupon at any time. But the party who has employed the force cannot allege it as a defence, if the contract be insisted upon by the other side. Duress, must, however, be pleaded specially, and will not avail as a defence under a plea of non est factum.2 By the Roman law, the party imposed upon must institute a process of rescission within ten years; and if he approve the contract for that space of time, either directly or by acquiescence therein, he cannot set it up as a defence.3 That species of compulsion, which does not appear in overt acts of violence or threat, but in overpersuasion, and advantage taken by parties in peculiar relations of trust or influence over the weak and ignorant, comes within the purview of constructive fraud, and will be hereafter considered under that title.
§ 525. We now come to the third requisite of legal assent, namely, that it should be given understandingly, and without any material mistake in respect to the subject of the agreement. This subject we shall consider under the title of Mistake.