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 v. 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. Whether these decisions are right or wrong, the first step towards a satisfactory understanding of the subject is to recognize that if they are right, it is because it is inequitable to deprive a creditor of the benefit of a fair settlement of a genuine claim even if it was made under coercion.54 § 1616. Even a reasonable settlement obtained by threats of prosecution should be voidable. In spite of the arguments advanced in the preceding section, it seems better to hold that where anything other than a satisfaction of the precise civil obligation under which a criminal rested is obtained by coercion through threats of prosecution by the creditor the transaction should be avoided without reference to its reasonableness, and excellent authority supports this view.55 There can be no question that there is duress 54 This has been recognized in some recent cases. In Kronmeyer v. Buck, 258 Ill. 586, 101 N. E. 935, 939, 45 L. R. A. (N. S.) 1182, the court said: "Duress is not available as a defence against a note or other instrument executed by one who is, in fact, guilty of misappropriating the money of another, although the execution of the instrument is obtained by threatened prosecution, if the instrument is executed in payment of a debt honestly due. In such case the law regards the existence of a debt, and not the threatened prosecution, as the consideration. The authorities support the proposition that, where a deed or mortgage is executed to secure an amount of money actually due as the result of transactions having a criminal aspect, equity will not set aside such conveyances even though their execution was procured by threats of criminal prosecution." In Wilbur v. Blanchard, 22 Idaho, 517, 126 Pac. 1069, 1073, it was said: "Now it would seem entirely justand, if just, it ought to be the lawthat, if Wilbur had stolen property from Blanchard and afterward paid Blanchard the reasonable value of the goods taken, he ought not to be able to recover that sum back, even though the payment were made under threats of arrest or duress as defined by the foregoing authorities. On the other hand, although Wilbur had converted and appropriated Blanchard's property and was guilty of a crime and legally liable to pay for the property taken, Blanchard had no right to use that as a means of extorting from Wilbur a sum in excess of the value of the goods taken." 589, In Beath v. Chapoton, 115 Mich. 506, 73 N. W. 806, 69 Am. St. Rep. ... a party had been charged with embezzlement and had given his notes for $2,700 in settlement thereof. He subsequently defended against the collection of the notes, on the ground that they were given under duress. The court held that "he was liable upon them to the extent of moneys appropriated by him, if any were so appropriated; and it was the province of the jury to determine the amount. If he had appropriated none of the plaintiff's money, of course the note was with out consideration, and void.” 55 Morrill v. Nightingale, 93 Cal. 452, 28 Pac. 1068, 27 Am. St. Rep. 207; |