Margaret Robinson vs. Daniel Gould, 11 Cush. 55

Bigelow, J. The general rule of law is well established, on reasons of justice and sound policy, that contracts, in order to be valid and binding, must be the result of the free assent of the parties. Therefore duress, either of actual imprisonment or per minas, constitutes a good defence to an action on a contract in behalf of those from whom contracts have been thus extorted. Duress by menaces, which is deemed sufficient to avoid contracts, includes a threat of imprisonment, inducing a reasonable fear.of loss of liberty. 2 Rol. Ab. 124; 2 Inst. 482-3; Bac. Ab. Duress (A.); 20 Amer. Jur. 24; Chit, on Cont. 168.

It is also well settled that the duress, which will avoid a contract, must be offered to the party who seeks to take advantage of it. This was early adjudged in Mantel v. Gibbs, 1 Brownlow, 64, where, to an action of debt, brought on an obligation, the defendant pleaded that a stranger was imprisoned until the defendant, as surety for the stranger, made the bond. This was held a bad plea. The same principle is laid down in Hanscombe v. Standing, Cro.

Jac. 187, where it was held that none shall avoid his own bond for the imprisonment or danger of any other than of himself only, and although the bond be avoidable as to the one, yet it is good as to the other. Wayne v. Sands, 1 Freeman, 351; Shep. Touch. 62; Mc Clintick v. Cummins, 3 M’Lean, 158; 20 Amer. Jur. 26. And certainly this distinction rests on sound principle. He only should be allowed to avoid his contract, upon whom the unlawful restraint or fear has operated. The contract of a surety, if his.own free act, and executed without coercion or illegal menace, should be held binding.

The duress of his principal cannot affect his free agency or in any way control his action. It may excite his feelings, awaken his generosity, and induce him to act from motives of charity and benevolence towards his neighbor; but these can furnish no valid ground of defence against his contract, which he has entered into freely and without coercion. The case at bar falls very clearly within this principle. The defendant was put under no restraint; no threats were made to him.

His principal may have been coerced to apply to the defendant to be his surety, but there is nothing in the case which tends to show any duress towards the defendant. There was, toó, a valid consideration for the note of the defendant as between him and the plaintiff. The jury have found that the note in suit was in fact given in consideration of an agreement by the plaintiff to forbear and give day of payment to the principal and an actual forbearance by the plaintiff in pursuance of this agreement.

This constitutes a sufficient consideration for the note declared on, moving between the plaintiff and the defendant. The case, therefore, is exactly this: a promise by the defendant, upon a valid considération, freely assented to by him without restraint or coercion of any kind. Upon familiar principles, such a contract is legal and binding. In this view, the instructions given to the jury were sufficiently favorable to the defendant. The facts wholly failed to establish the defence relied upon. Exceptions overruled.