Sec 148

But there must be actual physical violence threatened. A deed, for instance, which is executed in dread of purely imaginary dangers may be contested on the ground of insanity, but not on the ground of duress.5 It must be "Metus non illatus, quem nullae minae praecessirint."6 In the Roman standards this view is repeatedly affirmed. Thus it has been held no ground to invalidate a contract that it was induced by a desire to propitiate a party to whom a wrong had been done ;7 nor by a desire to evade a prosecution for crime, the contract being fair, and there being no knowledge on the other side that this was the motive, and no attempt at extortion;8 nor, if there be no unfair influence exerted to extort an unjust bargain, will a contract be held invalid because the party subsequently assailing it was influenced by peculiar reverence (metus reverentialis) for the other contracting party.9 In the same line may be cited numerous cases in our own courts in which it has been held that the mere fact that a promisee has obtained an ascendency over the promisor is in itself no ground for setting aside a promise.1 Nor do specific forebodings of disaster, not otherwise to be averted, have their effect, when such influence does not emanate from the promisee. Thus it has been held in New Jersey to be no defence at common law to an action against a married woman on a note signed by her that she was led to sign it by her husband's saying that if she did not sign, he would commit suicide.2 Nor do threats of disaster even by the promisee necessarily avoid. Thus the fact that a sheriff was induced to give a special bond, not legally obligatory on him, by threats of the board of supervisors, that, unless he did, his office would be declared vacant, does not by itself avoid the bond.3 In an Must be violence threatened.

1 Wh. Cr. L. 8th ed. sec 489.

2 L. sec 3, D. ex quibus causis majores (iv. 6).

3 Gail, obs. Lib. ii. obs. 93; Brun-neraan, ad L. 6, C. h. t. Leyser, spec. 58, m. 3, L. 8 D. h. t.

4 Bispham's Eq. sec 230 ; Williams v. Bayley, L. R. 1 H. L. 218; Neilson v. McDonald, 6 Johns. Cas. 210 ; McCaud-less v. Engle, 51 Penn. St. 309 ; Louden v. Blythe, 16 Penn. St. 532.

5 L. 14, sec 3; L. 9, sec 1, D. eod.

6 Koch, ii. 107. See Seymour v. Prescott, 69 Me. 376; Tapley v. Tap-ley, 10 Minn. 448.

7 L. 21, pr. D. eod. Donellus, L. xv. cap. 39 ; No. 60.

8 L. 10, C. h. t. Donellus, ut supra.

9 See L. 7, pr. D. quod metus causa. Leyser, L. c. m. 2; Boehmer, L. C. cap. ii. sec 8, p. 788.

1 Infra, sec 158.

2 Wright v. Remmington, 41 N. J. L. 48.

3 State v. Harney, 57 Miss. 863.

In Wright v. Remmington, 41 N. J. L. 53, Reed, J., said : "The common law, however, very early guarded the stability of contracts by a rule which required the exercise of a much higher degree of coercive force than here appears before the question of want of the power of consent could be enter tained as a question of fact. The degrees of restraint or terror to which the party must be subjected, as a ground for avoiding his contract, must rise to what the law recognized as duress, and the statement of the grounds of such avoidance appears in the earliest books of authority. Bac. Abr. Duress.

"These grounds were stated in the case of Sooy ads. State, 9 Vroom, 329, and repetition of them here would be profitless. The language in the opinion in that case, although used in reference to the avoidance of a bond, is applicable to the avoidance of any contract, sealed or unsealed.

"In turning from the statement of what is essential to constitute a defence upon the ground of duress to the facts in this case, it at once appears that they do not make a case within the rule laid down relative to such defence. There was no imprisonment of the woman or threat of imprisonment. There was no threatened injury to her person. The influence was that her husband threatened not to injure her, but to kill himself. It is true that there is the statement in the books that duress to a wife will avoid a deed made by the husband under that influence. Bac. Abr. Duress, B.

"It may be that had the payees of the note or their agent threatened to take the life of the husband unless the wife signed the note, and she signed under the influence of the terror excited by such threats, it would have avoided the contract. But here the threats were made by the husband against his own life. The maker and the object of the threats were the same. Their execution was within his own power of volition. The wife knew that no harm could come to him except by his own act. The present case is action on a promissory note by the payee against the maker, it was set up as a defence that the plaintiff obtained the note by threatening the defendant, who was an aged man in ill health, about leaving Knoxville, Tennessee, for his home in Maine, with arrest, the note being for a debt due by the maker's son. There was no menace of violence proved, however, and no pretence that process authorizing an arrest had been procured, nor was there any officer of the law in attendance. It was held that the note was not avoided on ground of duress.1-Nor do threats of a mere trespass amount to duress.2-It used to be held that a threat of burning a house would not avoid a contract it produced ;3 but, as Mr. Chitty well observes, "it may be doubted whether a threat to commit so serious an injury would not be considered sufficient duress to avoid a contract obtained by means thereof."4 When, however, imprisonment or great violence to the person is threatened, no matter what such violence may be, this avoids a contract obtained by such threat ;5 and even where imprisonment is lawful, duress may be constituted by the application of undue force, or by unjustifiable pressure, such as withholding of food.6 But the fact that a contract was made by a party in prison does not by itself avoid it unless undue force or improper influence was used to extort it.7 utterly unlike an instance of the presence of some overshadowing danger, uncontrollable by either the wife or the person endangered.

"There is no trace of a doctrine that the threat of a husband against himself will avoid the contract of his wife, or conversely, and such a rule would lead to an instability in that class of contracts which would be vicious."

1 Seymour v. Prescott, 69 Me. 376.

2 R. v. Southerton, 6 East, 140; Bingham v. Sessions, 6 Sm. & M. 13.

3 Bac. Abr. Duress (A).

4 1 Ch. on Cont. 11th Am. ed. 272.

5 Infra, sec 150; Taylor v. Jacques, 106 Mass. 291. That imprisonment, even in a public prison, constitutes duress, if the imprisonment be unlawful, see Smith v. Monteith, 13 M. & W. 427; Soule v. Bonney, 37 Me. 128; Tilley v. Damon, 11 Cush. 247.

6 2 Inst. 482; Smith v. Monteith, 13 M. & W. 427, 438, 442; Williams v. Brown, 3 B. & P. 69 ; R. v. Southerton, 6 East, 140; Pole v. Harrobin, 9 East, 417.

7 Infra, sec 150; 1 Ch. on Con. 11th Am. ed. 270; Stepney v. Lloyd, Cro. Eliz. 647; Kelsey v. Hobby, 16 Pet. 269 ; Crowell v. Gleeson, 1 Fairf. 325 ; Bowker v. Lowell, 49 Me. 429 ; Shep-hard v. Watrous, 3 Caines, 166 ; Stouf-fer v. Latshaw, 2 Watts, 167.