DUPLICITY. See the titles DEFINITENESS AND CERTAINTY IN PLEADING, vol. 6, p. 273; DEMURRERS, vol. 6, p. 294. DURESS. BY W. R. BUCKMINSTER. I. DURESS BY IMPRISONMENT, 271. 1. Of Defendant, 272. 2. Of Defendant's Relative, 273. II. DURESS BY THREATS, 273. 1. Of Criminal Prosecution, 273. a. By Instituting Proceedings, 274. b. By Pressing Prosecution Already Begun, 274. 2. Of Imprisonment, 274. 3. Of Violence, 275. a. To Defendant, 275. b. To Defendant's Relative, 276. CROSS-REFERENCES. For Forms in Actions to Recover Money Paid Under Duress, see the title MONEY HAD AND RECEIVED. For Forms in Actions to Set Aside Contracts Made Under Duress, see the title RESCISSION AND CANCELLATION. I. DURESS BY IMPRISONMENT.1 the duress in the procurement of the note, is not by such detail, even if unnecessary, vitiated. Bingham v. Sessions, 6 Smed. & M. (Miss.) 13. "Duress."-It is not necessary to use the word "duress" in a plea thereof, yet facts constituting it must be properly set forth. Gates v. Dundon, (City Ct.) 18 N. Y. Supp. 149. Verification. An answer setting up duress is insufficient without a verification. Parkison v. Boddiker, 10 Colo. 503. 1. Of Defendant. Form No. 8085. (2 Chit. Pl. (3d Am. ed.) 513.)1 In the King's Bench. Richard Roe ats. John Doe. Trinity Term, 51 Geo. III. And the said Richard Roe, by Joseph Story his attorney, comes and defends the wrong and injury, when, etc.,2 and says that the said John Doe ought not to have or maintain his aforesaid action against him, because he says that he, the said Richard Roe, at the time of making of the said writing, to wit, on the said first day of June, A. D. 1803, aforesaid, at the parish of St. Paul, Covent Garden, aforesaid, was unlawfully imprisoned by said John Doe, and others in collusion with him, and then and there detained in prison until by the force and duress of imprisonment of him the said Richard Roe, he gave the said writing and delivered the same to the said John Doe as his deed, and this he, the said Richard Roe, is ready to verify.* Wherefore he prays judgment if the said John Doe ought to have or maintain his aforesaid action thereof against him, etc. The defendant at the time of making said contract was imprisoned by the plaintiff and others in collusion with him and then and there detained until, by the force and duress of imprisonment, the defendant made and delivered the same. And as to the contract mentioned in the plaintiff's third count, he says that at the time of its execution he was kept in imprisonment by the plaintiff, and executed the contract through the force of that imprisonment. 1. See also forms in 5 Wentw. Pl. 496; 2 Rev. Swift's Dig. 633; Tillinghast's F. 490. By his attorney, 2. See ante, vol. 2, note 2, p. 109. 2. Of Defendant's Relative. Form No. 8088. In the Superior Court for the County of Los Angeles, State of California. John Doe, plaintiff, against Richard Roe, defendant. Defendant's Answer. The defendant, answering to the complaint of the plaintiff herein, says: I. That at the time of the making and delivery of the note in the complaint mentioned, Sarah Roe, the daughter of the said defendant, had been unlawfully imprisoned, and was then and there kept in unlawful imprisonment, by the said plaintiff. II. That to rescue his said daughter from said imprisonment, and to procure the plaintiff to release her therefrom, under duress thereof, and upon no consideration, the defendant made and delivered to the plaintiff said note. (Verification.)1 Joseph Story, Defendant's attorney. II. DURESS BY THREATS. 1. For the form of verification in a particular jurisdiction consult the title VERIFICATIONS. 2. Insufficient Forms. An answer alleging that at about the time of the execution and delivery of the note and mortgage, George N. Lyman charged the defendant, Timothy J. Mapes, with the crime of larceny, in stealing from George N. Lyman a large sum of money, and threatened to prosecute the defendant, Timothy J. Mapes, in a criminal prosecution for the offense and send him to the state prison, alleging that he had ample proof of, and he, George N. Lyman, knew of the commission of the same, and pretended that nothing could prevent the conviction of Timothy, unless David and Timothy would pay and remunerate him for refraining to prosecute Timothy, and suppressing the prosecution for the offense of larceny, and George N. Lyman then proposed to Timothy and David P. Mapes, his father, that he would compound and cancel the offense of larceny and refrain and suppress all prosecutions against Timothy for the offense, and would not in any event prosecute Timothy for the same, nor give any evidence thereof, provided Timothy and 7 E. of F. P. - 18. David P. Mapes, his father, would execute and deliver to him a promissory note for the sum of fifteen hundred dollars, and David P. Mapes and Ruth, his wife, would secure the payment of the same by executing and delivering a mortgage on real estate," is insufficient. It must either confess the felony and allege a threatened prosecution or else allege that, a prosecution had actually been commenced at the time of the making of the note. Catlin v. Hanton, 9 Wis. 476. To the same effect see Steuben County Bank v. Mathewson, 5 Hill (N. Y.) 249. An affidavit of defense in the following form is not sufficient. "Affiant further avers that the execution by him of said bond was entirely without consideration of any character to him, and that the only consideration to John S. Kirschner, the principal therein, was a consideration invalid in law in that it was given by him and accepted by the obligees for the purpose of compounding and settling a charge of embezzlement committed by said Kirschner while acting as financial secretary of Local Union No. 100, of the Cigarmakers' International Union of America, and after 273 the execution Volume 7. a. By Instituting Proceedings. Form No. 8089.1 (Caption as in Form No. 8087.) And the defendants further say, that the plaintiffs threatened to criminally prosecute the said John G. Hiller for an alleged embezzlement of the sum of one hundred and twenty-six 53-100 dollars, money belonging to the plaintiffs, and in consideration of compounding said felony the defendants gave to the plaintiffs the note declared on, and said consideration was illegal. By their Attorney, Wm. C. Fabens. b. By Pressing Prosecution Already Begun. Form No. 8090.3 (Caption as in Form No. 8087.) Defendants further say that said alleged note was given to settle a criminal prosecution for larceny instituted on the complaint of said Frank W. Keyes, the payee named in said note, against said Charles M. Keyes, one of the makers thereof, and pending at the time of the date of said note, before the District Court of Southern Berkshire holden at Great Barrington, in said county, and in consideration of the giving of said note said Frank W. agreed with and promised defendants not to press said prosecution, and to use his influence not to have the same enforced and prosecuted against said Charles M., of all which the said Gorham had knowledge when said note came into his hands, and said note is void in the hands of said Gorham, being given for an illegal consideration. (Signature as in Form No. 8089.) 2. Of Imprisonment.3 Form No. 8091. (5 Went. Pl. 497.) (Commencing as in Form No. 8085, and continuing down to *.) And thereof, the said obligees in consideration thereof released the said Kirschner from all liability to prosecution for said crime of embezzlement.' It should have further alleged that criminal proceedings had been begun or threatened with the purpose of coercing the defendants to execute the bond. Portner v. Kirschner, 169 Pa. St. 472. 1. This form is copied from the records in Bowman v. Hiller, 130 Mass. 153. Several pleas were filed in this case, but only the plea of duress is given. 2. This form is copied from the rec ords in Gorham v. Keyes, 137 Mass. 583. The defendant filed several pleas, but only that of duress is given. See the substance of a similar answer in McMahon v. Smith, 47 Conn. 221. 3. Insufficient Form. - An answer to a suit upon a promissory note by the endorsees which alleges "that said note was executed by him, and delivered to the payees without any good, valid, valuable or legal consideration," and "that it was obtained and procured by fraud and threats of a criminal prosecution against the defendant, and under the fear and terror occasioned thereby," for further plea in this behalf he the said James, by leave of the court first had and obtained according to the form of the statute in such case made and provided says, that he ought not to be charged. with the said debt by reason of the said supposed writing-obligatory; because he says, that before the making of the said writing-obligatory, to wit, on the twenty-fifth day of September, in the year of our Lord one thousand eight hundred and five, at Falmouth, aforesaid, they the said plaintiffs threatened and menaced the said James to imprison and cause him to be committed to prison, unless he would seal and execute the said supposed writing-obligatory, with the said condition above set forth, and that he the said James afterwards, to wit, on the twenty-fifth day of September, in the year of our Lord one thousand eight hundred and five, through fear of the said menaces and threats, made the said condition, to wit, at Falmouth aforesaid, and this he is ready to verify; wherefore he prays judgment (concluding as in Form No. 8085). 3. Of Violence.2 a. To Defendant. Form No. 8092. (Conn. Prac. Act, p. 209, No. 381.) (Caption as in Form No. 8086.) The instrument in the complaint mentioned was obtained from the defendant by the plaintiff, and others in collusion with him, by duress of the defendant in threatening the defendant with bodily harm, in consequence of which, and in fear thereof, the defendant executed said instrument. (Signature as in Form No. 8086.) Form No. 8093. In the District Court of the First Judicial District of the State of Utah in and for the County of Juab. John Doe, plaintiff, against Richard Roe, defendant. Answer of defendant. Richard Roe, defendant in the above entitled action, answers to the complaint therein: Insufficient Form.- An answer stating in the matter of duress: "But the defendant, being, at that time, in extremely bad health and in a low condition of physical and nervous prostration, was not able to withstand the threats, intimidation, and overbearing persistency, then and there employed by the plaintiff in enforcing his said unjust demand; and, because of the defendant's said inability, and for no other reason, the defendant finally yielded to the plaintiff, and signed the note here sued on," is insufficient from failure to aver the nature of the threats, |