(

even though there is no legal right to enforce the claim, 19 provided the threat is made in good faith; that is, in the belief that a possible cause of action exists. But if the threat is made with the consciousness that there is no real right of action and the purpose is coercion, a payment or contract induced thereby is voidable.20 In the former case it may be said that the threatened action was rightful; in the latter case it was not.21 As foreclosure is a lawful means for securing a mortgagee's claim, threats of foreclosure do not amount to duress; 22 nor do threats that one entitled to establish a mechanic's lien, 23 or to enjoin either the presentation of a play, 24 or the use of premises in violation of a covenant, 25 will adopt this course unless his claim is settled. A threat by a creditor to apply for a receiver made under circumstances which would justify the application will not render voidable a transaction induced thereby; 26 and "The collection of taxes through threats, by the authorities of a municipality to which they are owing, that unless the sum due is

102 N. Y. S. 1051; Peebles v. Pittsburgh, 101 Pa. St. 304, 47 Am. Rep. 714; C. & J. Michel Brewing Co. v. State, 19 S. D. 302, 103 N. W. 40, 70 L. R. A. 911; Flack v. National Bank, 8 Utah, 193, 30 Pac. 746, 17 L. R. A. 583; Burnham v. Strafford, 53 Vt. 610; York v. Hinkle, 80 Wis. 624, 50 N. W. 895, 27 Am. St. Rep. 73.

19 Bestor v. Hickey, 71 Conn. 181, 41 Atl. 555; Peckham v. Hendren, 76 Ind. 47; Lester v. Mayor, 29 Md. 415, 96 Am. Dec. 542; Zent v. Lewis, 90 Wash. 651, 156 Pac. 848.

20 Foote v. DePoy, 126 Iowa, 366, 102 N. W. 112, 68 L. R. A. 302, 106 Am. St. Rep. 365. See also Rose v. Owen, 42 Ind. App. 137, 85 N. E. 129; Callendar Savings Bank v. Loos, 142 Iowa, 1, 120 N. W. 317; Behl v. Schuett, 104 Wis. 76, 80 N. W. 73.

21 See supra, § 135.

22 Vick v. Shinn, 49 Ark. 70, 45 S. W. 60, 4 Am. St. Rep. 26; Burke v. Gould, 105 Cal. 277, 38 Pac. 733; Savannah Sav. Bank v. Logan, 99 Ga. 291, 25 S. E. 692; Hart v. Strong, 183 Ill. 349,

55 N. E. 629; Buck v. Axt, 85 Ind. 512; Stout v. Judd, 10 Kans. App. 579, 63 Pac. 662; Hilborn v. Bucknam, 78 Me. 482, 7 Atl. 272, 57 Am. Rep. 816; Vereycken v. Vanden Brooks, 102 Mich. 119, 60 N. W. 687; Nutting v. McCutcheon, 5 Minn. 382; Koewing v. West Orange, 89 N. J. L. 539, 99 Atl. 203; Martin v. New Rochelle Water Co., 11 N. Y. App. Div. 177, 42 N. Y. S. 893, affd. 162 N. Y. 599, 57 N. E. 1117; Wessel v. Johnston Land & Mtge. Co., 3 N. Dak. 160, 54 N. W. 922, 44 Am. St. Rep. 529; F. B. Collins Investment Co. v. Easley, 44 Okl. 429, 144 Pac. 1072; Pease v. Francis, 25 R. I. 226, 55 Atl. 686; Shuck v. Interstate Building, etc., Association, 63 S. C. 134, 41 S. E. 28.

23 Abelman v. Indelli, etc., Co., 170 N. Y. App. Div. 740, 156 N. Y. S. 401. 24 Hart v. Walsh, 84 N. Y. Misc. 421, 146 N. Y. S. 235.

25 Ripy Bros. Distilling Co. V. Lillard, 149 Ky. 726, 149 S. W. 1009.

26 Minneapolis Land Co. v. McMillan, 79 Minn. 287, 82 N. W. 591.

paid, the owner's right to redeem will be barred or foreclosed, does not amount to unlawful coercion and is not duress;" 27 nor does the threatened resignation of an administrator, 28 or the threat of a widow as to the place of burial of her deceased husband.29

1607. Abuse of lawful means.

Means in themselves lawful must not be so oppressively used as to amount to an abuse of legal remedies. Though attachment is in itself lawful, if an attachment is excessive, or of perishable property, 30 or is made under circumstances which make it difficult for the defendant to avoid yielding to any demands 31 the use of the attachment for the purpose of enforcing extortionate or collateral demands is abusive, and transactions coerced by such means are voidable. Under similar circumstances a threat to apply for a receiver of a corporation has been held duress of one who was interested financially therein and whose reputation would be injuriously affected by the application.32 Even a threat of ordinary litigation may be made under such circumstances as to render the threat wrongful as a means of coercion, and the transaction induced thereby voidable. Thus, where one of the parties is in such a position as to be easily dominated by the other, 33 or is old and weak-minded,3 a transaction induced by such a threat may be avoided. Where,

"Sackman v. Campbell, 15 Wash. 57, 45 Pac. 895.

"Koewing v. West Orange, 89 N. J. Co., 101 Mich. 250, 59 N. W. 615, 25 L. 539, 99 Atl. 203. L. R. A. 627, 45 Am. St. Rep. 409 (unfounded claim that a policy was void with threats to bring suit to cancel it). See also Foote v. DePoy, 126 Ia. 366, 102 N. W. 112, 68 L. R. A. 302, 106 Am. St. Rep. 365.

29 Jewelers' League v. DeForest, 80 Hun, 376, 30 N. Y. S. 88, affd. 151 N. Y. 654, 46 N. E. 1148.

20

Spaids v. Barrett, 57 Ill. 289, 11 Am. Rep. 10; Chandler v. Sanger, 114 Mass. 364, 19 Am. Rep. 367.

"Collins v. Westbury, 2 Bay (S. Car.), 211, 1 Am. Dec. 643.

32 Rose v. Owen, 42 Ind. App. 137, 85 N. E. 129. Cf. Minneapolis Land Co. v. McMillan, 79 Minn. 287, 82 N. W. 591; McCammon v. Shantz, 26 N. Y. Misc. 476, 57 N. Y. S. 515. "See Heinlein v. Imperial, etc.,

Ins.

34 See Galusha v. Sherman, 105 Wis. 263, 81 N. W. 495, 47 L. R. A. 417 (threats of criminal prosecution were also made.) In Hogan v. Leeper, 37 Okl. 655, 133 Pac. 190, 47 L. R. A. (N. S.) 475, the threat of guardianship proceedings by which the will of an old man was coerced, whereby he was induced to sign a deed of trust, was held to render the deed voidable.

however, ordinary legal procedure is used or threatened by one who believes he has a claim of the kind for which such procedure was provided, there must doubtless be some actual or threatened abuse of process. What amounts to such an abuse is not susceptible of exact definition.

§ 1608. Neither persuasion nor pressure of circumstances is duress.

Since there is no impropriety in the use of such means, it follows that suggestion, argument, entreaties, advice, and persuasion, unless there is some special relation between the parties giving one ascendancy over the other, or unless carried to such an extreme as to coerce the will of the person addressed, will not render a transaction voidable.3 35

Nor is it duress or undue influence when a party is constrained to enter into a transaction by force of circumstances for which the other party is not responsible.36 But it seems

35 Bowdoin College v. Merritt, 75 Fed. 480, 169 U. S. 551, 18 Sup. Ct. 415, 42 L. Ed. 850; Sawyer v. White, 122 Fed. 223, 58 C. C. A. 587; Adair v. Craig, 135 Ala. 332, 33 So. 902; Rogers v. Higgins, 57 Ill. 244; Burt v. Quisenberry, 132 Ill. 385, 24 N. E. 622; Beith v. Beith, 76 Iowa, 601, 41 N. W. 371; Seward v. Seward, 59 Kans. 387, 53 Pac. 63; United Shoe Mach. Co. v. La Chapelle, 212 Mass. 467, 99 N. E. 289, Ann. Cas. 1913 D. 715; Hammond v. Welton, 106 Mich. 244, 64 N. W. 25; Clement v. Buckley Mercantile Co., 172 Mich. 243, 137 N. W. 657; Fjone v. Fjone, 16 N. D. 100, 112 N. W. 70; Coleman v. Coleman, 85 Oreg. 99, 166 Pac. 47; Longnecker v. Zion, etc., Church, 200 Pa. 567, 50 Atl. 244; DuBose v. Kell, 90 S. C. 196, 71 S. E. 371; Seat v. McWhirter, 93 Tenn. 542, 29 S. W. 220; Delaplain v. Grubb, 44 W. Va. 612, 30 S. E. 201, 67 Am. St. Rep. 788. Even persuasion, however, by one who is in a dominant position may invalidate a transaction, see infra, § 1627.

36 Silliman v. United States, 101 U. S. 465, 25 L. Ed. 987; Jenkins S. S. Co. v. Preston, 186 Fed. 609, 108 C. C. A. 473; Hackley v. Headley, 45 Mich. 469, 8 N. W. 511; Lilienthal v. George Bechtel Brewing Co., 118 N. Y. App. Div. 205, 102 N. Y. S. 1051; J. J. Little & Ives Co. v. Madison Paper Stock Co., 169 N. Y. S. 104; Custin v. Viroqua, 67 Wis. 314, 30 N. W. 515. In Horn v. Davis, 70 Or. 498, 142 Pac. 544, the plaintiff received a telegram that his wife was dangerously ill and stated that rather than stay and complete a pending negotiation he would surrender the defendant's note and call it settled. The surrender was held not voidable.

So also, neither "will want of money, nor distressing circumstances, avoid a contract of settlement. French v. Shoemaker, 14 Wall. 314, 20 L. Ed. 852; United States v. Huckabee, 16 Wall. 431, 21 L. Ed. 457; Mason v. United States, 17 Wall. 74, 21 L. Ed. 564." Burnes v. Burnes, 132 Fed. 485, 493. Cf. English equity decisions,

clear that if such circumstances were known and advantage taken of them by the other party a degree of pressure which would not ordinarily amount to duress, might have such coercive effect as to invalidate a transaction.

§ 1609. Duress by imprisonment and by threats of imprisonment.

Though the common law distinguished duress and menace, or as it was later phrased duress by imprisonment and duress by threats, there is no logical distinction worth preserving. Imprisonment operates as a means of coercion only because of its threatened continuance, and there seems no material difference between a threat whether express or implied to continue an existing imprisonment, and a threat to arrest and imprison one who is then at large, provided the threat is accompanied with apparent ability to execute it. Whether threatened imprisonment is immediately imminent or not, involves a distinction of degree rather than of kind.

§ 1610. Duress by imprisonment for debt.

Confusion has been caused in regard to duress by imprisonment by a double meaning of the word "lawful." Lawful imprisonment, it is said, cannot amount to duress, and it is true that if imprisonment is a lawful means of collecting a debt, it will not under any ordinary circumstances amount to duress to collect a debt by the compulsion of imprisonment for it. Formerly, such imprisonment was a generally permitted means of enforcing an execution which could not be satisfied from the debtor's property, and therefore imprisonment for a valid debt by regular process (and a fortiori the threat of such imprisonment) did not amount to duress unless accompanied with circumstances of unnecessary oppression or hardship.37 Even at the present day, in many jurisdictions, arrest and imprison

O'Rorke v. Bolingbroke, 2 App. Cas. 814 (sale of inheritance by an expectant heir); Fry v. Lane, 40 Ch. D. 312 (sale by a poor and ignorant person of a reversionary interest).

"Nelson v. Suddarth, 1 H. & M. (Va.) 350; Crowell v. Gleason, 1 Fair

field (10 Me.), 325; Watkins v. Baird, 6 Mass. 506, 4 Am. Dec. 170; Richardson v. Duncan, 3 N. H. 508; Shephard v. Watrous, 3 Caines, 166; Stouffer v. Latshaw, 2 Watts, 165, 27 Am. Dec. 297; Meek v. Atkinson, 1 Bailey, 84, 19 Am. Dec. 653.

ment are permissible as a means of enforcing certain civil claims, and as to such claims the old rule still prevails. 38 And if the process upon which the arrest is made is legal, and the claim against the defendant made in good faith, it is not important whether it was well founded in fact.39 But even in cases where imprisonment is a permitted means of enforcing a claim, if the imprisonment is unlawful or though lawful is made improperly oppressive, and assent to a conveyance or contract is induced thereby, or to obtain release therefrom, this will amount to duress. 40

§ 1611. Duress by imprisonment for crime.

Where a person is imprisoned for crime his situation must be distinguished from that where he is imprisoned for the debt or liability to which the settlement which he is induced to make relates. If the prisoner is not guilty of the crime with which he is charged, or if his imprisonment is for any reason illegal, 42 it would universally be admitted that a transaction induced by the imprisonment would be voidable for duress; but if the

41

38 Mascola v. Montesanto, 61 Conn. 50, 23 Atl. 714, 29 Am. St. Rep. 170; Jones v. Peterson, 117 Ga. 58, 43 S. E. 417; Bunker v. Steward (Me.), 4 Atl. 558; Prichard v. Sharp, 51 Mich. 432, 16 N. W. 798; Dunham v. Griswold, 100 N. Y. 224, 3 N. E. 76; Meacham v. Newport, 70 Vt. 67, 39 Atl. 631; Lyons v. Davy-Pocahontas Coal Co., 75 W. Va. 739, 84 S. E. 744.

39 Watkins v. Baird, 6 Mass. 506, 4 Am. Dec. 170; Clark v. Turnbull, 47 N. J. L. 265, 54 Am. Rep. 157; Pflaum v. McClintock, 130 Pa. 369, 18 Atl. 734. Heaps v. Dunham, 95 Ill. 583, goes beyond the text for if the charge was unfounded in that case it was presumably known to be so by the person making it. The court seemed to think it enough that the process was legal. Though early authorities may sustain this position (see Watkins v. Baird, 6 Mass. 506, 510, 4 Am. Dec. 170, and authorities cited) it is submitted that it cannot now be accepted.

40 This was laid down by Lord Coke, Co. Litt. 253, 2 Inst. 481, and is still law. 1 Bl. Comm. 137; Whitefield v. Longfellow, 13 Me. 146; Morse v. Woodworth, 155 Mass. 233, 250, 27 N. E. 1010, 29 N. E. 535; Reinhard v. City, 49 Ohio St. 257, 31 N. E. 35, and see cases in the preceding note. Lyons v. Davy-Pocahontas Coal Co., 75 W. Va. 739, 84 S. E. 744. In Sweet v. Kimball, 166 Mass. 332, 44 N. E. 243, 55 Am. St. Rep. 406, a creditor by false representations enticed a nonresident debtor into Massachusetts and then by arresting him for debt (as allowed by Massachusetts when the debtor is about to leave the State), induced him to make a settlement. The settlement was held voidable.

41 Hatter v. Greenlee, 1 Porter, 222, 26 Am. Dec. 370.

42 Bailey v. Devine, 123 Ga. 653, 51 S. E. 603, 107 Am. St. Rep. 153. See also infra, § 1613, n. 47.