Duress, like fraud, renders a contract voidable rather than void. "Duress considered as a ground for avoiding a contract consists in any of the following acts committed or threatened by one of the parties, or with his connivance, and causing the other to enter into the contract. (1) Unlawful imprisonment of the other party; (2) imprisonment of the other party through the abuse of lawful process or made unjustly oppressive; (3) imprisonment of the husband or wife, parent or child or other near relative of the other party; (4) unlawful and great bodily harm to the other party or his near relative; (5) unlawful seizure, detention or destruction of the property of such person." 15 Duress can either arise from threats or force. "The rule as to duress per minas has now a broader application than formerly. It is founded on the principle that a contract rests on the free and voluntary actions of the minds meeting in an agreement which is to be based upon them. If an influence is exerted on one of them of such a kind as to overcome his will and compel a formal assent to an undertaking when he does not really agree to it and so to make that appear to be his act, which is not his, by anything imposed on him which deprives him of self-control, there is no contract unless the other deals with him in good faith, and ignorance of the improper influence and in the belief that he is acting voluntarily."16 In a recent case defendant and his sons had been arrested on a charge of murder and at the preliminary hearing attorneys who appeared for defendant refused to say what they would charge. The defendant was discharged, but the sons held to await action of the grand jury. The community was in a state of great excitement and many known circumstances indicated the sons' guilt. Defendant visited the attorneys in regard to the defense and they stated their fee as $3,000 for the entire defense and insisted on the execution of a note and mortgage for that sum. The grand jury did not indict the sons. Held, that as between the defendant and the attorney the note was invalid except as to the reasonable value of the services, since it was made when the defendant was under such stress of circumstances as to have no adequate power against unjust exaction.17 The party setting up duress as a defense must show that he was actually influenced by it.18 The subject of the duress set up as a defense may be that of the husband, wife, parent, or child or other near relative of the party urging the defense.19

13 Underwood vs. West, 52 I11., 397; Gould vs. Cayuga Bank, 21 Hun., 293.

14 Fratt vs. Fiske, 17 Cal., 535 Shaw vs. Barnhart, 17 Ind., 183.

15 Benjamin on Sales, Sec. 60.