prisoner is guilty, and the process valid, the imprisonment is "lawful." The argument based on this circumstance has been answered in a leading Massachusetts case13 as follows: "It has sometimes been held that threats of imprisonment, to constitute duress, must be of unlawful imprisonment. But the question is whether the threat is of imprisonment which will be unlawful in reference to the conduct of the threatener who is seeking to obtain a contract by his threat. Imprisonment that is suffered through the execution of a threat which was made for the purpose of forcing a guilty person to enter into a contract may be lawful as against the authorities and the public, but unlawful as against the threatener, when considered in reference to his effort to use for his private benefit processes provided for the protection of the public and the punishment of crime. One who has overcome the mind and will of another for his own advantage, under such circumstances, is guilty of a perversion and abuse of laws which were made for another purpose," "44 and where there is actual imprisonment or a threat of immediate arrest, the weight of authority supports this view. 45 § 1612. Threat of criminal prosecution. A threat of criminal prosecution is not in terms a threat of imprisonment but in effect it is ordinarily a threat of imprisonment, and, also irrespective of whether the prosecution is likely to be followed by imprisonment, it is a threat of disgrace. It needs no argument to show that as matter of fact threats of prosecution may be and frequently are of such compelling force that acts done under their influence are coerced and not voluntary; and the better foundation there is for the prosecution, the greater is the coercion. Nevertheless, there are a number of decisions holding that a threat of well-founded criminal prosecution is not such duress as to make voidable a transaction "Morse v. Woodworth, 155 Mass. 233, 251, 27 N. E. 1010, 29 N. E. 525. “(Quoted with approval in Kwentsky u. Sirovy, 142 Iowa, 385, 400, 121 N. W. 27.) 45 Walbridge v. Arnold, 21 Conn. 424; Mayer v. Oldham, 32 Ill. App. 233; Richardson v. Duncan, 3 N. H. 508; induced thereby. The arguments advanced in the opinions in these cases in support of this conclusion are by no means uniform. In the main they are based on two dissociated ideas which may be thus stated: (1) That whether the person threatened was guilty or not, a threat of prosecution is not necessarily a threat of immediate arrest and imprisonment, and therefore is insufficient as a means of terrorizing another; (2) that if the person threatened was guilty, the threat was one which a person criminally defrauded or injured by another had a right to make. 46 46 In Ingebrigt v. Seattle, etc., Co., 78 Wash. 433, 139 Pac. 188, 189, the cases supporting this side of the question are thus summarized: "It is not duress for one, who in good faith believes that he has been wronged, to threaten the wrongdoer with a civil suit; and, if the wrong includes a violation of the criminal law, it is not duress to threaten him with a criminal prosecution. Hilborn v. Bucknam, 78 Me. 482, 7 Atl. 272, 57 Am. Rep. 816. A mere threat to imprison, without an actual arrest, does not constitute duress. Bodine v. Morgan, 37 N. J. Eq. 426; Thorn v. Pinkham, 84 Me. 101, 24 Atl. 718, 30 Am. St. Rep. 335. Threats of imprisonment, not accompanied with the statement that the prosecution has been commenced, do not constitute duress. Buchanan v. Sahlein, 9 Mo. App. 552; Sulzner v. Cappeau-Lemley &c. Co., 234 Pa. 162, 83 Atl. 103, 39 L. R. A. (N. S.) 421. In the case last cited the court said: 'Ordinarily, when no proceedings have been commenced, threats of arrest, prosecution, or imprisonment do not constitute legal duress to avoid a contract; the threats must be made under such circumstances that they excite the fear of imminent and immediate imprisonment.' [Citing Russell V. McCarty, 45 Ga. 197; Harmon v. Harmon, 61 Me. 227, 14 Am. Rep. 556; Wilkerson v. Hood, 65 Mo. App. 491; Sieber v. Weiden, 17 Neb. 582, 24 N. W. 215; Dunham v. Griswold, 100 N. Y. 224, 3 N. E. 76; Moyer v. Dodson, 212 Pa. 344, 61 Atl. 937.] The threat, in order to be coercive, must be of an unlawful use of process. Loan & Protective Ass'n v. Holland, 63 Ill. App. 58. ... There is no duress where neither a warrant has been issued nor proceedings commenced. Elston v. Chicago, 40 Ill. 514, 89 Am. Dec. 361. "Threats of criminal prosecution, unaccompanied by threats of immediate imprisonment, do not constitute duress.' Beath v. Chapoton, 115 Mich. 506, 73 N. W. 806, 69 Am. St. Rep. 589. See to the same effect, Williams v. Stewart, 115 Ga. 864, 42 S. E. 256. [Rendleman v. Rendleman, 156 Ill. 568, 41 N. E. 223.]. It is those contracts made under fear of unlawful arrest, and not those executed under threat of lawful imprisonment, that can be avoided for duress.' McCormick Harvesting Co. v. Miller, 54 Neb. 644, 74 N. W. 1061. See to the same effect Alexander v. Pierce, 10 N. H. 494; Englert v. Dale, 25 N. D. 587, 142 N. W. 169." See also Gregor v. Hyde, 62 Fed. 107, 10 C. C. A. 290; Harrison Township ". Addison, 176 Ind. 389, 96 N. E. 146; Giddings v. Iowa Sav. Bank, 104 Ia. 676, 679, 74 N. W. 21; Guinn v. Sumpter Valley Ry. Co., 63 Oreg. 368, 127 Pac. 987. § 1613. Arguments that threats of criminal prosecution may not be duress are unsound. Neither of the ideas stated in the preceding section will bear examination. The first-that imprisonment is not sufficiently imminent is based on early common-law definitions of duress which are generally obsolete. It may be classed with the idea that a battery cannot amount to duress unless it is so severe as to threaten life or mayhem. Everyone knows that threat of a well-founded prosecution, which is likely to end in imprisonment, is often quite sufficient to put even a brave man in fear. Moreover, the argument goes too far, for if sound, threats of prosecution without cause could likewise not be duress; and certainly most courts would agree that threats of an ill-founded prosecution may be duress.47 The second argument that a well-founded prosecution is "lawful" has already been examined. 48 If the argument is unsound where there is actual imprisonment it is equally unsound where it is only threatened. §1614. Illustrations showing that threats of criminal prosecution may be duress. The unsoundness of the arguments denying that threats of well-founded prosecution can be duress—at least unless a warrant has issued and immediate arrest is probable, will be evident from considering some cases not dissimilar in principle but differing slightly in fact from those which usually arise. In the ordinary case one who has been criminally defrauded forces by threats a settlement with his debtor by which a payment or transfer of property is made not exceeding in value the amount which the creditor could recover in a civil action. But let it be supposed that the creditor forced a conveyance from his debtor of property worth several times the claim. If the threats do not amount to an unlawful coercion, the terms of the contract and the adequacy of consideration are for the parties to consider. They are of no concern to the court. 49 Again, suppose "Kronmeyer v. Buck, 258 Ill. 586, 101 N. E. 935, 45 L. R. A. (N. S.) 1182; Rollins v. Lashus, 74 Me. 218; Flanigan v. Minneapolis, 36 Minn. 406, 31 N. W. 359; Ball v. Ball, 79 N. J. Eq. 170, 81 Atl. 724, 37 L. R. A. (N. S.) 539; Coon v. Metzler, 161 Wis. 328, 154 N. W. 377, L. R. A. 1916 B. 667. See also cases supra, § 1612, n. 46. 48 Supra, § 1611. 49 But such a conveyance was set aside in Clement v. Buckley Mercan the threat of prosecution is made by some one who was not injured by the crime and who makes use of his discovery of it to force an agreement or conveyance from the criminal. Any member of the public has a right to prosecute for crime one whom he knows to be guilty. The prosecution is therefore lawful. Yet to threaten to use this right for the purpose of coercing the criminal to make a payment or to enter into a contract may be in itself a criminal offence, and certainly must be regarded as duress. 50 Finally, there are many cases where it is held that threats of a well-founded prosecution of a husband, son, or other relative of the person threatened, may amount to duress.51 It can hardly be duress to threaten the prosecution tile Co., 172 Mich. 243, 137 N. W. 657, though Michigan has been one of the States denying that mere threats of a well-founded prosecution could amount to duress. See Beath v. Chapoton, 115 Mich. 506, 73 N. W. 806, 69 Am. St. Rep. 589, and cases therein cited. 50 Thompson v. Niggley, 53 Kan. 664, 35 Pac. 290, 26 L. R. A. 803. In Coveney v. Pattullo, 130 Mich. 275, 89 N. W. 968, an attorney whose client was imprisoned at a distance from home, exacted a mortgage to secure an unreasonable fee. The transaction was set aside. 51 Williams v. Bayley, L. R. 1 H. L. 200; McClatchie v. Haslam, 63 L. T. 376; International Harvester Co. v. Voboril, 187 Fed. 973, 110 C. C. A. 311; Woodham v. Allen, 130 Cal. 194, 62 Pac. 398; Merchant v. Cook, 21 D. C. 145; Kronmeyer v. Buck, 258 Ill. 586, 101 N. E. 935, 45 L. R. A. (N. S.) 1182; Denney v. Reber, 63 Ind. App. 192, 114 N. E. 424; First Nat. Bank v. Bryan, 62 Iowa, 42, 17 N. W. 165; Giddings v. Iowa Sav. Bank, 104 Ia. 676, 74 N. W. 21; WilliamsonHalsell, etc., Co. v. Ackerman, 77 Kan. 502, 94 Pac. 807, 20 L. R. A. (N. S.) 484; Fears v. United Loan & Deposit Bank, 172 Ky. 255, 189 S. W. 226; Bryant v. Peck, etc., Co., 154 Mass. 460, 28 N. E. 678; Webb v. Lothrop, 224 Mass. 103, 112 N. E. 934; Meech v. Lee, 82 Mich. 274, 46 N. W. 383; Benedict v. Roome, 106 Mich. 378, 64 N. W. 193; Lewis v. Doyle, 182 Mich. 141, 148 N. W. 407; Hensinger v. Dyer, 147 Mo. 219, 48 S. W. 912; Hargreaves v. Menken, 45 Neb. 668, 63 N. W. 951; Nebraska Mut. Bond Assoc. v. Klee, 70 Neb. 383, 97 N. W. 476; Lomerson v. Johnston, 44 N. J. Eq. 93, 13 Atl. 8, 47 N. J. Eq. 312, 20 Atl. 675, 24 Am. St. Rep. 410; Travis v. Unkart, 89 N. J. L. 571, 99 Atl. 32; Schoener v. Lissauer, 107 N. Y. 111, 13 N. E. 741; Adams v. Irving Bank, 116 N. Y. 606, 23 N. E. 7, 6 L. R. A. 491, 15 Am. St. Rep. 447; Kohler v. Savage, 86 Oreg. 639, 167 Pac. 789; Keckley v. Union Bank, 79 Va. 458; McCormick, etc., Co. v. Hamilton, 73 Wis. 486, 41 N. W. 727; Mack v. Prang, 104 Wis. 1, 79 N. W. 770, 45 L. R. A. 407, 76 Am. St. Rep. 848. But see Sulzner v. Cappeau-Lemley, etc., Co., 234 Pa. 162, 83 Atl. 103, 39 L. R. A. (N. S.) 421. In some of the decisions in this note the transaction in question was held under the facts of the case not to have been made under duress, but they all, except the Pennsylvania decision cited at the end, indicate that if the will of the person threatened was in fact coerced, the threats would amount to duress. of a third person and not be duress to threaten the prosecution of the person himself who is threatened. § 1615. Reason why many courts have refused to avoid transactions made under threats of prosecution. The truth seems to be that in the cases where a settlement coerced by means of threatened prosecution has been held not to amount to duress, no more than a fair settlement was obtained. One who had misappropriated money or property, and who was therefore under a civil as well as criminal liability, made restitution. Under such circumstances even though there was unquestionable duress, the debtor if compelled to pay the exact amount of a liquidated debt, cannot be allowed to recover the payment because in making the payment he has done no more than he was legally bound to do. The situation is legally different where the debtor is compelled to transfer property in satisfaction of his civil liability, or to pay a fixed sum to satisfy a claim of uncertain amount, from what it is where the payment exacted is the exact amount of a liquidated debt, since in the former case the parties are attempting an accord and satisfaction, not exactly fulfilling an existing obligation. But where the settlement is fair, this distinction is easily lost sight of. Moreover, the line of division between threats of prosecution by the creditor and the compelling force of circumstances, the effect of which the debtor knows, though no threats are made, is often hard to draw. Not only may the debtor properly make and the creditor receive satisfaction of the civil liability, but the debtor, if acting under no other compulsion than that exercised by the force of circumstances, may make such satisfaction as he can in the hope that his criminal default will be dealt with leniently.52 It is probably under the influence of such considerations that so many courts 53 have refused to avoid settlements made under threat of prosecution. 52 Roloson v. DeHart, 134 Mo. App. 633, 114 S. W. 1122; Roth v. Holmes (Tenn.), 52 S. W. 699. In Felton v. Gregory, 130 Mass. 176, 178, the court said of such a situation: "If this can be held to be duress, then every thief who makes restitution of the stolen prop erty, for the purpose of mitigating his sentence, would be entitled to recover it back on the ground of duress." But see also Goodrum v. Merchants', etc., Bank, 102 Ark. 326, 144 S. W. 198, Ann. Cas. 1914 A. 511. 53 See supra, § 1612. |