DURESS. Personal restraint, or fear of personal injury or imprisonment. 2 Mete. Ky. 445.
' Duress of imprisonment exists where a man actually loses his liberty. If a man be ille gally deprived of his liberty until he sign and seal a bond, or the like, he may allege this du. ress and avoid the bond. 2 Bay, So. C. 211 ; 9 Johns. N. Y. 201; 10 Pet. 137. But if a man be legally imprisoned, and, either to procure his discharge, or on any other fair account, seal a bond or a deed, this is not by duress of im prisonment, and he is not at liberty to avoid it. Coke, 2d Inst. 482 ; 3 Caines, N. Y. 168 ; 6 Mass. 511 ; 1 Lev. 69 ; 1 Hen. & M. Va. 350; 17 Me. 338. Where the proceedings at law are a mere pretext, the instrument may be avoided. Al. 02 ; 1 Blackstone, Comm. 136.
Duress per minas, which is either for fear of loss of life, or else for fear of mayhem or loss of limb, must be upon a sufficient reason.
1 Blackstone, Comm. 131. In this case, a man may avoid his own act. Lord Coke enu merates four instances in which a man may avoid his own act by reason of menaces:—for fear of loss of life ; of member ; of mayhem ; of imprisonment. Coke, 2d Inst. 483 ; 2 Rolle, Abr. 124 ; Bacon, Abr. Duress, Mur der, A; 2 Strange, 856 ; Foster, Cr. Law, 322 ; 2 Ld. Raym. 1578 ; Savigny, Dr. Rom.
114.
It has been held that restraint of goods under circumstances of hardship will avoid a contract. 2 Bay, So. C. 211 ; 9 Johns. N. Y. 201 ; 10 Pet. 137. But see 2 Mete. Ky. 445 ; 2 Gall. C. C. 337.
The violence or threats must be such as are calculated to operate on a person of ordi nary firmness and inspire a just fear of great injury to person, reputation, or fortune.
The age, sex, state of health, temper, and disposition of the party, and other circum stances calculated 'to give greater or less effect to the violence or threats, must be taken into consideration.
Violence or threats are cause of nullity, not only where they are exercised on the con traoting party, but when the wife, the hus band, the descendants or ascendants, of the party are the object of them.
If the violence used be only a legal con straint, or the threats only of doing that which the party using them had a right to do, they shall not invalidate the contract. A just and legal imprisonment, or threats of any measure authorized by law and the circumstances of the case, are of this descrip tion. See Norris Peake's Evid. 440, and the cases cited, also, 6 Mass. Rep. 506, for the general rule at common law.
But the mere forms of law to cover coer cive proceedings for an unjust and illegal cause, if used or threatened in order to pro cure the assent to a contract, will invalidate it ; and arrest without cause of action, or a demand of bail in an unreasonable sum, or threat of such proceeding, by this rule invalid ate a contract made under their pressure.
All the above articles relate to cases where there may be some other motive besides the violence or threats for making the contract. When, however, there is no other cause for making the contract, any threats, even of slight injury, will invalidate it. Id. 1853.
See, generally, 2 Watts, Penn. 167 ; 1 Bail. So. C. 84; 6 Mass. 511 ; 6 N. H. 508; 2 Gall. C. C. 337.