1 If one knowing he has not a just claim against another arrests him or attaches his goods, a payment by the latter to release himself or his goods is a payment under duress and may be recovered. Rollins v. Lashus, 74 Me. 218; Chandler v. Sanger, 114 Mass. 364. But a threat to enforce at law a right claimed in good faith will not constitute duress, even though the right claimed did not exist. Wilson, etc. Co. v. Curry,

It is a rule of law, which is applied to many cases, that where the threat is of an injury for which full and entirely adequate compensation may be expected from the law, such duress will not, *of itself, avoid a contract, for the threatened person ought to have sufficient resolution to resist the threat and rely upon the law, as where the threat is of an injury to property, or of a slight injury to the person. (w) But no verdict could com(w) Atlee v. Backhouse, 3 M. & W. 642; Sumner v. Ferryman, 11 Mod. 201; Astley v. Reynolds, Stra. 715. It is on this ground, perhaps, that in England duress of one's property is not sufficient to avoid a contract. Atlee v. Backhouse, 3 M. & W. 650; Skeate v. Beale, 11 A. & E. 983. But see Sasportas v. Jennings, 1 Bay, 470; Collins v. Westbury, 2 id. 211. In this last case the law was thus laid down by the court: " So cautiously does the law watch over all contracts, that it will not permit any to be binding but such as are made by persons perfectly free, and at full liberty to make or refuse Bitch con-tracts, and that not only with respect to their persons, but in regard to their goods and chatteIs also. Contracts to be binding must not be made under any restraint or fear of their persons, otherwise they are void. . . . So, in like manner, duress of goods will avoid a contract, where an pensate adequately for loss of limb, or for great personal violence, *and no man shall be held bound to incur such a danger. These distinctions, however, would not now probably have a controlling power in this country; but where the threat, whether of mischief to the person or the property, or to the good name, was of sufficient importance to destroy the threatened party's freedom, the law would not enforce any contract which he might be induced by such means to make.1 And where there has been no actual contract, but money has been extorted by duress, under circumstances which give to the transaction the character of a payment by compulsion, it may be recovered back. (x) unjust and unreasonable advantage is taken of a man's necessities, by getting his goods into his possession, and there is no other speedy means left of getting them back again but by giving a note or a bond, or where a man's necessities may be so great as not to admit of the ordinary process of law, to afford him relief, as was determined in this court after solemn agreement, in the case of Sas-portas v. Jennings, 1 Bay, 470; also in the case of Astley v. Reynolds, Stra. 915." See also Nelson v. Suddarth, 1 Hen. & M. 350; Foshay v. Ferguson, 5 Hill (N. Y.), 158, where Bronson, J., said; " I entertain no doubt that a contract procured by threats and the fear of battery, or the destruction of property, may be avoided on the ground of duress. There is nothing but the form of a contract in such a case, without the substance. It wants the voluntary assent of the party to be bound by it. And why should the wrong-doer derive an advantage from his tortious act 1 No good reason can be assigned for upholding such a transaction." Although in England a contract may not be avoided for duress of goods, yet money paid under such duress may be recovered back. See Oates v. Hudson,

126 Ind. 161; State v. Harney, 57 Miss. 863; Hevsham v Dettre, 89 Pa. 506; De La Cuesta v. Insurance Co. 136 Pa. 62, 658; Whittaker v. Southwest Va. Imp., etc. Co., 34 W. Va. 217. Though businesss necessities make it necessary to yield. Silliman v. United States, 101 U. S. 465; Hackley v. Headley, 45 Mich. 568; Custin v. Viroqua, 67 Wis. 314. But a compromise oppressive and unfair in its nature and known to be so may be avoided. Headley v. Hackley, 50 Mich. 43. Unlawful detention of property will avoid a contract made to secure its return, Oliphant v. Markham, 79 Tex. 543; or give a right to recover money paid to obtain such property. Green v. Duckett, 11 Q. B. D. 275; Motz v. Mitchell, 91 Pa. 114. Refusal to clear a vessel until the master signed an agreement constitutes duress. McPherson v. Cox, 86 N. Y. 472. So, excessive freight charges extorted by the only common carrier accessible may be recovered. Transportation Co. v. Sweetzer, 25 W. Va. 434. An instrument executed by a woman under threats to send a husband or son to prison unless she did so may be avoided. McClatchie v. Haslam, 63 L. T. 376; First Nat. Bank v. Bryan, 62 Ia. 42; Meech v. Lee, 82 Mich. 274; Lomerson v. Johnston, 44 N. J. Eq. 93; Schooner v. Lissaner, 107 N. Y. 111; Adams v. Irving Bank, 116 N. Y. 606; McCormick, etc. Co. v. Hamilton, 73 Wis. 486. See Keckley v. Union Bank, 79 Va. 458. And a note signed by a father under similar circumstances was held voidable for duress in Bryant v. Peck & Whipple Co., 154 Mass. 460. But an instrument executed by a wife voluntarily and freely is binding, though executed to prevent prosecution of her husband. Barrett v. Weber, 125 N. Y. 18. A note executed in order to secure the makers release from imprison-ment under lawful process was held good in Clark v. Turnbull, 47 N. J. L. 265, though in fact no cause of action existed. A note given to compromise a well-founded bastardy prosecution may be enforced. Heaps v. Dunham, 95 Ill. 583. And in Maine it is held that mere threats of a criminal prosecution by one who believes himself wronged do not constitute duress. Higgins v. Brown, 78 Me. 473; Hilborn v. Bucknam, 78 Me. 482. And unless threatened prosecution or imprisonment for an actual offence is made under circumstances of unnecessary hardship or with an improper end in view, it will not constitute duress. Sanford v. Sornborger, 26 Neb. 295. In New Jersey the distinction is still maintained between duress at common law and such undue influence as will cause a court of equity to set aside a contract or conveyance. Sooy ads. The State, 38 N. J. L. 324. It was accordingly held that there was no defence at law to notes signed by a married woman under threats of her husband that he would poison himself unless she did, the payee being cognizant of such threats and the plaintiff being an indorsee from the payer after maturity. The court say that any undue influence was a matter of purely equitable cognizance. Wright v. Remington, 41 N. J, L. 48; Remington v. Wright, 43 N. J. L. 451. An angry command of a husband to "dry up that crying and go write your name" was held insufficient to establish a defence of duress to a mortgage signed by the wife. Gabhey v. Forgeus, 38 Kan. 62. Probably duress by a third person without privity of the obligee would be no defence to an obligation. Fairbanks v. Snow. 145 Mass. 153.

5 E. L. & E. 469; s. c. 6 Exch. 346.

(x) Chase v. Dwinal, 7 Greenl. 134; Oates v. Hudson, 5 E. L. & E. 469; s. c.

6 Exch. 346. But where a person has paid the amount of taxes assessed upon him, he cannot recover it back, upon the ground that the assessment was illegally made, if there be no proof that he was compelled to pay any portion thereof by duress of his person or seizure of his property, or that any part was paid under protest, and to avoid such arrest or seizure. The mere fact that the taxes were paid to collectors, who had warrants for the collection, affords no satisfactory proof of payment by duress. Smith v. Readrield, 27 Me. 145. See, as to payments under legal duress, Fleetwood v. New York, 2 Sandf. 475; Harmony v. Bingham, 1 Duer, 229; Mayor v. Leffer-man, 4 Gill, 425.

1 In Parmentier v. Pater, 13 Ore. 121, 130, it is said "Any threats even of slight injury will invalidate the contract. Persons of a weak or cowardly nature are the very ones that need protection. The courageous can usually protect themselves. Capricious and timid persons are generally the ones that are influenced by threats, and it would be great injustice to permit them to be robbed by the unscrupulous, because they are so unfortunately constituted." In Jordan v. Elliott, (Pa. 1882) 12 W. N. C. 56; s. c 15 Central L. J. 232, Gordon, J., says, in alluding to the old rule that to constitute duress threats must be of such a character as would induce a well-grounded fear in the mind of a courageous man, " The fantastic heroics of Jordan would not have been sufficient to induce a courageous man to do that which he was not disposed; hence if this rule is to be applied to the case in hand, the defence is insufficient. But fortunately for the weak and timid, courts are no longer governed by this harsh and inequitable doctrine;" citing the text. And in Scott v. Sebright, P. D. 21, 24, Butt, J., said " It has sometimes been said that in order to avoid a contract entered into through fear, the fear must be such as would impel a person of ordinary resolution and courage to yield to it. I do not think that is an accurate statement of the law. Whenever from natural weakness of intellect or from fear, - whether rea-sonablv entertained or not, - either party is actually in a state of mental incompetence to resist pressure improperly brought to bear, there is no more consent than in the case of a person of stronger intellect and more robust courage yielding to a more serious danger."

A contract made under duress is not, however, strictly speaking, void, but only voidable; because it may be ratified and affirmed by the party upon whom the duress was practised. (y)

(y) Shep. Touch. 62, 288; Fairbanks v. Snow, 145 Mass. 153; Sanford v. Sorn-borger, 26 Neb. 295; Ohregon Pacific R. R. Co. v. Forrest, 128 N. Y. 83. The privilege of avoiding a contract for reason of duress is personal, and none can take advantage of it but the party himself. Huscombe v. Standing, Cro. J. 187; Bay-lie v. Clare, 2 Brownl. 276; McClintick v. Cummins, 3 McLean, 158. Perhaps, however, this privilege extends to sureties. It was so held in Fisher v. Shattuck, 17 Pick. 252. But the contrary was expressly adjudged in Huscombe v. Standing, Cro. J. 187. See also McClintick v. Cummins, 3 McLean, 158. In this case it is said that the father and son may each avoid his obligation by duress of the other; and so a husband by duress of bis wife. See also Bac. Abr. Duress (B.); Harris v. Carmody, 131 Mass. 51. For other cases illustrating the law of duress, compulsion, and oppression, see Baxendale v. Eastern Counties R. R. Co. 27 L. J. C. 137; Baxendale v. Great Western R. R. Co, 32 L. J. C. 225, 33 ib 197; Tamvaco v. Simpson, 3 L. J. C. 268; Fraser v. Pendleberry, 31 L. J. C. 1; At-kinson v. Denby, 30 L. J. Exch. 361; Pid-dington v. South-Eastern R. R. Co. 27 L. J. C. 295; Garton v. Bristol & Exeter R. R. Co. 28 L.J. Exch. 169. In these last cases the plaintiffs recovered excessive charges which they had paid to railroad companies who had refused to carry goods, or to deliver goods carried, unless these payments were made.