§ 510. Assent must not only be mutual, but it must- be freely and voluntarily given, in order to create a valid contract. Compulsion or duress will therefore avoid any agreement. Duress is either by imprisonment or by threats, and must be upon the person. Duress of goods will not always5 avoid a contract.6
&E1. 129; Ellis v. Chinnock, 7 C. & P. 169; M'Kenzie v. Hancock, By. & Mood. 436; King v. Price, 2 Chitty, 416.
1 Adams v. Lindsell, 1 B. & Al. 681.'
2 Armstrong v. M'Ghee, Addison, 261.
3 Palmer v. Stephens, 1 Denio, 471.
4 Liverpool Borough Bank v. Eccles, 4 H. & N. 139. And see Lay-thoarp v. Bryant, 2 Bing. N. C. 735; Warner v. Willington, 3 Drewry, 523; Smith v. Neale, 2 C. B. (n. s.) 67.
5 Spaids v. Barrett, 57 111. 289 (1870).
6 Atlee v. Backhouse, 3 M. & W. 650; Oates v. Hudson, 6 Exch. 346; 5 Eng. Law & Eq. 470; Chitty on Cont. 206; Sumner v. Ferryman, 11 Mod. 201, where it was holden that a bond could not be avoided by duress law to afford him relief;"1 or where the contract is procured by threats of the destruction of property.2
Where, therefore, to debt on an agreement to pay £19 10s. the defendant pleaded, that just before the making of the agreement, the plaintiff had wrongfully distrained goods of the defendant of the value of £20, under color of a distress for £19 10s., whereas only £3 7s. 6d. was due, and the plaintiff threatened to sell the goods, unless the defendant made the agreement, which the defendant accordingly made, in order to prevent the sale, it -was held, that the withdrawal of the distress was a good consideration for the agreement to pay that amount, and that if it were not, mere duress of goods was not sufficient to invalidate the contract.1 So, also, a threat to levy of goods. Astley v. Reynolds, 2 Str. 915; Shep. Touch. 61; Skeate v. Beale, 11 Ad. & El. 983. And it has recently been adjudged not duress to pay money to redeem goods from custody of law. Liverpool Marine Co. v. Hunter, Law R. 3 Ch. 479 (1868).
1 Skeate v. Beale, 11 Ad. & El. 983. In this case Lord Denman said: "We consider the law to be clear, and founded on good reason, that an agreement is not void because made under duress of goods. There is no distinction in this respect between a deed and an agreement not under seal; and with regard to the former, the law is laid down in 2 Inst. 483, and Sheppard's Touchstone, p. 61, and the distinction pointed out between duress of, or menace to, the person, and duress of goods. The former is a constraining force, which not only takes away the free agency, but may leave no room for appeal to the law for a remedy; a man, therefore, is not bound by the agreement which he enters into under such circumstances; but the fear that goods may be taken or injured does not deprive any one of his free agency who possesses that ordinary degree of firmness which the law requires all to exert. It is not necessary now to enter into the consideration of cases in which it has been held that money paid to redeem goods wrongfully seized, or to prevent their wrongful seizure, may be recovered back in an action for money had and received; for the distinction between those cases and the present, which must be taken to be that of an agreement, not compulsory but voluntarily entered into, is obvious. Lindon v. Hooper, 1 Cowp. 414, and Knibbs v. Hall, 1 Esp. 84, are, however, authorities to show that, even if the money had been paid in this case, instead of the agreement to pay it entered into, no action for money had and received could have been sustained by the now defendant. For, although there is a difference in the circumstances, and the distress having been made, and some rent admitted to be in arrear, no replevin could have been successfully made, yet if the plaintiff distrained goods of the value of £20, when little more than £3 were due, there is no doubt that, on payment of the value of the goods, or the sum claimed, an action would have lain for the excessive distress. And it is of great importance that parties should be holden to those remedies for injuries which the law prescribes, rather than allowed to an execution would not be such duress as to make void a sum legally due.1 But although a contract may not be avoided for duress of goods, yet where a sum of money is paid in order to obtain possession of goods which are wrongfully withheld, it can be recovered back.2 If goods are illegally withheld, or the detention is attended with great immediate hardship or irreparable injury, and money is paid to recover them, it may be recovered back.8 Duress avoids a sale, although a consideration be paid.4
§ 511. In this country, however, it has been held, that duress of goods will, under some circumstances, render a contract voidable; and it has been said that such will be the case "where an unjust and unreasonable advantage is taken of a man's necessities, by getting his goods into his possession, and there is no other speedy means left of getting them back again, but by giving a note or a bond; or where a man's necessities may be so great as not to admit of the ordinary processes of enter into agreements with a view to prevent them, intending at the time not to keep their contracts. In the argument for the defendant, reliance was placed on the facts that the agreement was entered into under protest, and that the plaintiff must have known that only the smaller amount of rent was due. It is unnecessary to consider what the effect of these would have been; for neither of them is alleged in the plea. As, therefore, this plea relies solely on the menace as to the goods, under which the agreement was made, for avoiding it, we think it discloses no answer to the declaration.
1 Wilcox v. Howland, 23 Pick. 167; Waller v. Cralle, 8 B. Mon. 11; Stover v. Mitchell, 45 111. 213 (1867). See Bradford v. Chicago, 25 111. 411 (1861); Elston v. Chicago, 40 111. 514 (1866). A note given for the release of property from an illegal levy of execution was held not void in Bingham v. Sessions, 6 Sm. & M. 13.