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if one railroad claims that another which is about to cross its 'tracks has no right to do so, and undertakes to prevent by force of arms the workmen of the first company from crossing their tracks, an injunction can be obtained restraining both parties from altering their position until the question of right has been settied. As to questions of a man's use of his own property which injures the property of others, we can mention a man being restrained by injunction from carrying on a business on his property which is a nuisance to the adjoining owners or to the community. But it is urged that the underlying thought of all these instances is, that the man who is restrained by injunction, is acting as he does under a claim of right in property: And that by so doing, he has enabled one who disputes that right, to bring him into a civil court to determine the disputed question. Pending that determination, the property being peculiarly under the care of the court, can be protected by injunction, which the court has the summary right to enforce by commitment for contempt. Debs and the Chicago strikers of last summer made no claim to legal interest in property. Their actions were either innocent or criminal. It is alleged that they were criminal. The constitution provides that no man shall be judged guilty of a crime without indictment and trial by jury and all its attendant incidents.

This view of the case is that which appeals to the writer. The circumstances of the Chicago strikers either did or did not leave the administration of criminal justice and the preserving of social order within the ordinary power of the criminal court and the executive branch of the government. If, as is probable, the executive arm of the government, backed by the ordinary processes of the criminal courts, was not sufficient to protect property and life, then the case should have been treated, as on those facts it was, an exceptional case, and martial law declared. There seems to us to have been no necessity to strain the principles of the procedure of the civil courts, and to make a precedent which will be used over and over again to undermine the most valuable of the safeguards of individual liberty—the trial by jury.

The Annotations are prepared by the following Editors and Assistants: Department of Practice, PLEADING and Evidence.

Hon. George M. Dallas, Editor. Assistants: Ardemus Stewart, Henry N. Smaltz, John A. McCarthy, William Sanderson Furst. Department of Constitutional Law.

Prof. Christopher 6. Tiedeman, Editor. Assistants: Wm. Draper Lewis, Wm. Struthers Ellis. Department of Municipal. CoRPORATIONS,

Hon. John F. Dillon, LL. D., Editor. Assistant: Mayne R. Longstreth.

Department of Equity.

Richard C. McMurtrie, LL. D., Editor. Assistants: Sydney G. Fisher, John Douglass Brown, Jr., Robert P. Bradford. Department of Torts.

Melville M. Bigelow, Esq., Editor. Assistants: Benjamin H. Lowry, Alex. Durbin Lauer, Patrick C. B, O'Donovan. DEPARTMENT OF CORPORATIONS.

Angelo T. Freedley, Esq., Editor. Assistants: Lewis Lawrence
Smith, Clinton Rogers Woodruff, Maurice G. Belknap, H.
Bovce Schermerhorn.

Department of CARRIERS AND TRANSPORTATION COMPANIES. Charles F. Beach, Jr., Esq., Editor. Assistants: Lawrence Godkin, Owen Wister, Victor Leovy, Cyrus E. Woods. Department of Admiralty.

Morton P. Henry, Esq., Editor. Assistant: Horace L. Cheyney. Department of COMMERCIAL Law.

Frank P. Prichard, Esq., Editor. Assistants: H. Gordon Mc-
Couch, Chas. C. Binney, Chas. C. Townsend, Francis H.
Bohlen, Oliver Boyce Judson.

Department of Insurance.

George Richards, Esq.. Editor. Assistants: George Wharton Pepper, Luther E. Hewitt, Samuel Kahn Loucheim. Department of CRIMINAL LAW AND CRIMINAL PRACTICE. Prof. Geo. S. Graham, Editor. Assistants: E. Clinton Rhoads, C. Percy Wilcox.

Department of Patent Law.

George Harding, Esq., Editor. Assistant: Hector T. Fenton. Department of Propel ty.

Hon. Clement B. Penrose, Editor. Assistants: Alfred Roland
Haig, Wm. A. Davis, Jos. T. Taylor.


Hon. Marshall D. Ewell, LL. D., Editor. Assistants: Thomas
E. D. Bradley, Milton O. Naramore.


Hon. Wm. N. Ashman, Editor. Assistants: Howard W. Page, Charles Wilfred Conard, Joseph Howard Rhoads, William Henry Loyd, Jr., Edward Brooks, Jr., Samuel D. Matlack. Department of TRUSTS AND COMBINATIONS IN RESTRAINT OF


H. La Barre Jayne, Esq., Editor. Assistants: George S. Patterson,
Charles F. Eggleston.



Assisted by




A wife may avoid her contract, extorted by a threatened criminal prosecution of her husband, on the ground of duress; and the fact that after she had signed the contract, the plaintiff gave her the notes forged by her husband, together with others given by him as security therefor, to be given to the husband, which she accordingly did, and the notes were thereupon destroyed by him, does not estop her from avoiding her note extorted at the time under threats of prosecuting the husband.


I. "Duress, in its more extended sense, means that degree of constraint or danger, either actually inflicted or threatened and impending, which is sufficient, in severity or in apprehension, to overcome the mind and will of a person of ordinary firmness:" Brown v. Pierce, 7 Wall. 205. It does not neces-.sarily imply that the means used should be in themselves unlawful, but includes the use of lawful means in an unlawful: manner, or for an improper purpose; and, on the other hand, even if the means used should be improper, as for instance the threat of a baseless prosecution, there is no duress, unless the threat so operated on the mind of the person threatened as to deprive him of the free exercise of his will. In some of its manifestations, duress is hardly to be distinguished from undue influence: Lighthall v. Moore, 2 Colo. App. 554; and it extends not merely to the case of threats, but includes, the

'Reported in 59 N. W. Rep. 564.


abuse of one's legal position as owner by title of possession, in order to force the real owner to admit or satisfy an unjust claim, of which the unwarranted detention of property by a pledgee or bailee will serve as an example.

II. Duress at common law was divided into duress by imprisonment, and duress per minas, or by threats. To these may be added a third, also recognized by the common law, but not accorded the dignity of a separate existence,-duress of goods. This does not seem to belong properly under either of the preceding divisions; and is now admitted to form a distinct branch of the law of duress.

III. Duress by imprisonment consists in the use of imprisomment, lawful or unlawful, to force the party imprisoned into executing a contract. If the imprisonment be unlawful, the circumstances under which the contract is made cannot clothe it with validity. It makes no difference whether the overtures for the agreement come from the one party or the other. The imprisonment being illegal, the contract is equally so, whether formed at the suggestion of the prosecutor, or at the request of the defendant: Richardson v. Duncan, 3 N. H. 508; Osborn v. Robbins, 36 N. Y. 365. When, after a person has procured the arrest of another on a criminal charge, which did not justify his arrest, and after his discharge has procured his arrest again on an order in a civil action for fraud, where an arrest was not warranted, he procures from that person, while he is imprisoned, after several months' confinement, and on the promise to obtain bail for him, which is done, a release of himself, and the suretics on the bond given for the⚫ order of arrest, the release is given under duress, and will not bar an action on the bond to recover damages for the imprisonment: Lazzarone v. Oishci, 21 N. Y. Suppl. 267. But an arrest and imprisonment on lawful process, used in a proper manner, and only for a lawful purpose, is valid, and cannot be construed as duress: Nealley v. Greenough, 25 N. H. 325; Eddy v. Herrin, 17 Me. 338; even though no cause of action really existed, if the prosecution was instituted bona fide and upon probable cause: Prichard v. Sharp, 51 Mich. 432; Clark v. Turnbull, 47 N. J. L. 265. A note or other security given

to release the defendant in such a case from prison, may be void as given to compound a felony; but it cannot be awarded on the ground of duress.

If, however, the arrest and imprisonment are merely for the purpose of enforcing a civil liability, such is an improper use of criminal process, and a security obtained under such circumstances cannot stand: Seiber v. Price, 26 Mich. 518; Phelps v. Zuschlag, 34 Tex. 371. "A contract obtained by duress of unlawful imprisonment is voidable, and if the imprisonment is under legal process in regular form, it is nevertheless unlawful as against one who procured it improperly, for the purpose of obtaining the execution of a contract, and a contract obtained by means of it is voidable for duress : " Morse v. Woodworth, 155 Mass. 233; S. C., 29 N. E. Rep. 525.

IV. Duress per minas is the most fruitful branch of this theme; and its varieties are endless. It has been most excellently defined and explained in a lengthy opinion by Knowlton, J., in Morse v. Woodworth, 155 Mass. 233; S. C., 29 N. E. Rep. 525, already cited, which is well worth quoting more at length:

"The rule as to duress per minas has now a broader application than formerly. It is founded on the principle that a contract rests on the free and voluntary action of the minds of the parties, meeting in an agreement which is to be binding upon them. If an influence is exerted on one of them of such a kind as to overcome his will and compel a formal assent to an undertaking when he does not really agree to it, and so to make that appear to be his act which is not his but another's, imposed on him through fear which deprives him of selfcontrol, there is no contract, unless the other deals with him in good faith, in ignorance of the improper influence, and in the belief that he is acting voluntarily.

"To set aside a contract for duress it must be shown, first, that the will of one of the parties was overcome, and that he was thus subjected to the power of another, and that the means used to induce him to act were of such a kind as would overcome the mind and will of an ordinary person. It has often been held, that threats of civil suits and of ordinary proceed

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