tion of the case where that which was received was absolutely *worthless; but the burden to show this would be [*505] on the party who had failed to restore it.'

More conclusive than mere delay against the right to rescind is the fact that the defrauded party has so dealt with the subjectmatter of the contract that it has become impossible to put the other in statu quo. Except in very peculiar cases, a suit at law for damages will then be found to be the sole remedy.'

Affirming the Contract. The fraud may also be waived by an express affirmance of the contract. Where an affirmance is relied upon it should appear that the party having a right to complain of the fraud had freely, and with full knowledge of his rights, in some form, clearly manifested his intention to abide by the contract, and waive any remedy he might have had for the deception.'

If the contract is rescinded and the party guilty of the fraud refuses to restore on demand what he has fraudulently obtained, the other, at his option, may treat the detention as a conversion.

Indirect Suppression of Fraud. One method of suppressing fraud is by denying relief to one of two culpable parties when the other has defrauded him. If they are in pari delicto the court will not listen to their complaints. Therefore, if in attempting

'Babcock v. Case, 61 Penn. St.427; Smith . Smith, 30 Vt. 139.

Downer v. Smith, 32 Vt. 1; Poor ⚫. Woodburn, 25 Vt. 234; Kinney v. Kiernan, 2 Lans. 492; McCormick v. Malin, 5 Blackf. 509; Buchenau v. Horney, 12 Ill. 336; Blen v. Bear River Co., 20 Cal. 602; Jemison v. Woodruff, 34 Ala. 143; Pierce v. Wilson, 34 Ala. 596; Shaw v. Barnhart, 17 Ind. 183; Clarke v. Dickson, El. Bl. & El. 148. See Miller v. Barber, 66 N. Y. 558; Freeman c. Reagan, 26 Ark. 373.

Bradley v. Chase, 22 Me. 511; Kinney . Kierman, 2 Lans. 492; Parson

Hughes, 9 Paige, 591; Roberts v. Barrow, 53 Geo. 315; Pearsoll v. Chapin, 44 Penn. 9; Negley v. Lind

say, 67 Penn. St. 217; Cumberland Coal Co. v. Sherman, 20 Md. 117; Hoffman Steam Coal Co. v. Cumberland Coal Co., 16 Md. 456; Butler v. Haskell, 4 Dessaus. 651; Lyon v. Waldo, 36 Mich. 345; Williams v. Reed, 3 Mason, 405; Edwards v. Roberts, 7 Sm. & Mar. 544; Cherry v. Newson, 3 Yerg, 369; Broddus v. Call, 3 McCall, 472; Boyd v. Hawkins, 2 Dev. Eq. 195; Cann v. Cann, 1 P. Wms. 723; Cole v. Gibbons, 3 P. Wms. 290; Moxon v. Payne, 7 Moak, 442; Lindsay Petroleum Co. v. Hurd, 8 Moak, 180; Ex parte Briggs, L. R. 1 Eq. Cas. 483. See St. John v. Hendrickson, 81 Ind. 350; Thompson v. Libby, 36 Minn. 287.

a fraud on a third person one of them obtains an advantage, relief will be refused. But this rule will not be enforced [*506] against a party actually or presumably under the influ ence of the other, and who was induced to engage in the illegal or dishonest transaction by means of this influence. Thus, if an attorney leads his client into a fraud, in order to make use of it for his own purposes, the court will take notice where the blame properly rests and give relief against the attorney as the party chiefly responsible.'

Duress is a species of fraud in which compulsion, in some form, takes the place of deception in accomplishing the injury. Duress is either of the person or of the goods of the party, and the former is either by imprisonment, by threats, or by an exhibition of force that apparently cannot be resisted.

If one is arrested, though for a just cause, if it be without lawful authority, the arrest constitutes duress, and whatever is obtained by means of it is obtained wrongfully. But it is equally duress if the arrest is by lawful authority, but with the purpose to make use of it to compel the defendant to surrender to the plaintiff something to which the writ does not lawfully entitle him. Threats constitute duress where they canse rea

Nellis v. Clark, 4 Hill, 424; Roman v. Mali, 42 Md. 513.

Ford v. Harrington, 16 N. Y. 285; Freelove v. Cole, 41 Barb. 318; Barnes v. Brown, 32 Mich. 146.

If the parties have mutually defrauded each other, the trade will be left to stand. Price . Polluck, 37 N. J. 44.

If one is defrauded in a trade illegal because made on Sunday, an action will not lie. Plaisted v. Palmer, 63 Me. 576; Robeson v. French, 12 Met. 24; Cardoze v. Swift, 113 Mass. 250.

a To constitute duress the act must have been done under pressure of actual or threatened personal restraint or harm, or of an actual or threatened seizure or interference with property of serious import to the person and it must have appeared to him

that he could escape from or prevent the injury only by doing the act. Kraemer v. Deustermann, 35 N. W. Rep. 276 (Minn).

Thompson v. Lockwood, 15 Johns. 256; Foshay. Ferguson, 5 Hill, 154; Richards . Vanderpoel, 1 Daly, 71; Strong v. Grannis, 26 Barb. 122; Eadie v. Slimmon, 26 N. Y. 9; Osborn v. Robbins, 36 N. Y. 365; Bane v. Detrick, 52 Ill. 19; Belote v. Henderson, 5 Cold. 471; Durr e. Howard, 6 Ark. 461; Bassett v. Bassett, 9 Bush, 696.

5 Richardson . Duncan, 3 N. H. 508; Severance v. Kimball, 8 N. H. 386; Breck v. Blanchard, 22 N. H. 303; Watkins v. Baird, 6 Mass. 506; Fisher. Shattuck, 17 Pick. 252; Whitefield . Longfellow, 13 Me. 146; Eddy v. Herrin, 17 Me. 338; Bowker v. Lowell, 49 Me. 429; Phelps r. Zuschlag, 34 Tex. 371; Thurman v. Burt, 53

sonable apprehension of loss of life, or of some great bodily harm,' or of imprisonment. And the order of a mili tary *commander, where martial law prevails, requiring [*507] an act to be performed by the citizen which is contrary to his inclination, establishes a condition of duress, though no demonstations of violence or threats are employed; the command itself being an exhibition of force apparently irresistible.' Duress of goods consists in seizing by force or withholding from the party entitled to it the possession of personal property, and extorting something as the condition for its release, or in demanding and taking personal property under color of legal authority, which, in fact, is either void or for some other reason does not justify the demand."

Ill. 129; Stouffer v. Latshaw, 2 Watts, 165; Meek v. Atkinson, 1 Bailey, 84; Taylor. Blake, 11 Minn. 255; Work's Appeal, 59 Penn. St. 444. A release executed to get out of prison is void. Guilleaume v. Rowe, 94 N. Y. 268. But not a free and voluntary settlement executed in prison followed by discharge. Prichard v. Sharp, 51 Mich. 432; Clark v. Turnbull, 47 N. J. L. 265.

'Baker v. Morton, 12 Wall. 150. See Bosley v. Shanner, 26 Ark. 280; Bogle. Hammons, 2 Heisk. 136. See also Reynolds v. Copeland,71 Ind 422; Hildebrand v. McCrum, 101 Ind. 61.

Clinton v. Strong, 9 Johns. 370; Harmon v. Harmon, 61 Me. 227; S. C. 14 Am. Rep. 556; Feller v. Green, 26 Mich. 70; Bane . Detrich, 52 III. 19. Mere threat of prosecution is not duress. Buchanan v. Sahlein, 9 Mo. App. 552; Higgins v. Brown, 78 Me. 473. Nor of civil action. Hilborn

. Bucknam, 78 Me. 482; Dunham v. Griswold, 100 N. Y. 224. But see Haynes v. Budd, 30 Hun, 237. A mortgage obtained from a woman under threat of imprisoning her husband then under restraint is void. First Nat. Bank v. Bryan, 62 Ia. 42. See Lowerson v. Johnson, 13 Atl. Rep.

8 (N. J.) and note. Threats against a weak-minded person may constitute duress which would not against a man of ordinarily firm mind. Parmentier. Pater, 13 Oreg. 121. If the threats fail to cause apprehension of harm there is no duress. Harmon v. Harmon, 61 Me. 227; S. C. 14 Am. Rep. 556; State v. Sluder, 70 N. C. 55; Feller v. Green, 26 Mich. 70; Flanigan . Minneapolis, 36 Minn. 406.

3 Olivari o. Menger, 39 Tex. 76. • Crawford v. Cato, 22 Geo. 594; Spaids v. Barrett, 57 Ill. 289; S. C. 11 Am. Rep. 10; Tutt v. Ide, 3 Blatch. 249; Sasportas v. Jennings, 1 Bay, 470; Collins, v. Westbury, 2 Bay,211; Nelson v. Suddarth, 1 H. & M. 350; White. Heylman, 34 Penn. St. 142; Radick v. Hutchins, 95 U. S. 210; Chandler v. Sanger, 114 Mass. 346; S. C. 19 Am. Rep. 367; Shaw v, Woodcock, 7 B. & C. 73. Refusing to honor checks till an act is done is duress. Adams v. Schiffer 17 Pac. Rep. 21 (Col.) What is and what is not duress of goods fully discussed. Hackley v. Headley, 45 Mich. 569.

5 First Nat. Bank . Watkins, 21 Mich. 483; Beckwith . Frisbie, 32 Vt. 559; Adams v. Reeves, 68 N. C. 134; S. C. 12 Am. Rep. 627. A threat

Extortion, or the exaction of illegal or excessive fees for legal services, is also a species of fraud; and the party from whom the exaction is made is entitled to the same remedies as in other cases where his property has been taken from him wrongfully.'

to attach property for a demand not yet due is not duress. Latham v. Shackleford, 50 Ala. 437.

If by the process the party only obtains what he is lawfully entitled

to, an action will not lie to recover it back, though it might lie for any dis tinct wrongful act under the process. Skeate v. Beale, 11 Ad. & El. 983.

*CHAPTER XVIL

WRONGS IN CONFIDENTIAL RELATIONS.

[*508]

By confidential relations are here meant those relations formed by convention or by acquiescence, in which one party trusts his pecuniary or other interests to the fidelity and integrity of another, by whom, either alone, or in conjunction with himself, he expects them to be guarded and protected. Such relations exist between agent and principal, between partner and partner, between corporator and officer of the corporation, and between cestui que trust and trustee. They may also exist between parent and child, where circumstances raise an implication of trust or agency, and between husband and wife in the same way, and sometimes by contract. In case of the domestic relations there is likely to be, in addition to the confidence springing from intimate business trust, a further trust, born of affection and great personal intimacy, that may easily grow into or pave the way for undue influence. This is the chief coadjutor of fraud in all these relations.

By undue influence is meant that control which one obtains over another, whereby the other is made to do in important affairs what of his free will he would not do. It differs wholly from persuasion in which falsehood does not mingle, for that merely leads the will, while undue influence coerces it.' The manner in which the control is obtained is not important.

Husband and Wife. The most confidential of all the relations of life is that of husband and wife. For reasons which are interwoven with the whole framework of civilized society, the law is specially careful and vigilant in guarding and protecting the confidence which this relation invites and inspires. It will

not suffer this confidence to be invaded or exposed, even [*509]

1 "It must be a control intentionally exercised by one mind over the will of another, so as to deprive the

latter of the free agency of option." BUTLER, J., in Martin . Teague, 2 Speers, 260.