The 78th section (t) provides, that in case it shall appear to the said court, &c., that such prisoner has contracted any debt fraudulently, or by means of a breach of trust, or false pretences, or without having had any reasonable or probable expectation of paying the same, or shall have fraudulently, or by false pretences, obtained the forbearance of any of his debts by any of his creditors, or shall have put any of his creditors to any unnecessary expense by any vexatious or frivolous defence or delay to any suit for recovering any debt or sum of money due from such prisoner, or shall be indebted for damages recovered in any action for criminal conversation, or for seduction, or for breach of promise of marriage, or for damages recovered in any action for a malicious prosecution, or for a libel, or for slander, or in any other action for a malicious injury, or in any action of tort or trespass to the person or property of the plaintiff therein, where it shall appear to the satisfaction of the court that the injury complained of was malicious, then the court, &c. may adjudge that the prisoner shall be discharged forthwith, excepting as to such debts, monies or damages, and as to them, to adjudge that such prisoner shall be discharged so soon as he shall have been in custody at the suit of the creditor for the same respectively, for a period not exceeding two years in the whole, as the court, &c. shall direct.

It would seem that the case of an insolvent is analogous to that of a bankrupt (u), in regard to the rights of action of the former, upon contracts made after the petition and assignment, and in respect to after-acquired property (x). The petition and assignment appear to bar absolutely any action by the insolvent to recover his former debts or property, although the assignee does not interfere (y). But an action may be maintained in his name by a person to whom he has assigned a debt due to him before his insolvency, and of which assignment notice has been given to the debtor (z). But there is some reason to consider that, as regards agreements made after the petition and hearing, and

considered as a fraud on the other creditors and void, as contravening the act, Jackson v. Davison, 4 B. & Ald. 691; and see Murray v. Reeves, 8 B. & C. 421; Rogers v. Kingston, 10 Moore, 97; 2 Bing. 444, S. C.

(t) By s. 84 the adjudication may be made conditional, that is, on the performance of certain matters by the insolvent.

(u) See ante, 192, 194. When insolvent may sue for trespass to realty, ante, 194, note (y).

(a) See Lee v. Telfer, 1 C. & P. 146, 147, per Abbott, C. J. (y) Id.

(z) Buck v. Lee, 1 Ad. & E. 804; Dean v. James, id. 809; Tibbits v. George, 5 Ad. & E. 107.

before the final discharge, the insolvent may have a right of action upon agreements made by him, and in regard to property acquired by him during that period, (should the assignees not interfere and claim the benefit,) although the assignment under the act expressly vests in them, (as we have already seen (a),) the property which the insolvent may obtain, and the debts which may be due or grow due to him at any time before his final discharge. In Taylor v. Buchanan (b) it was held that an insolvent might sue on a contract of sale made by him subsequently to the hearing of his petition, and while he was detained in prison by the order of the court. It was contended that the plaintiff could not sue in respect of a contract made during the time for which he was remanded by the insolvent debtors' court; that this was not a demand for the labour or personal earnings of the plaintiff, but for goods sold and delivered; and that at the time of the alleged sale, the plaintiff's liberation had not taken place, and all his property belonged to the assignees under the insolvent debtors' act. The court, however, referred to the case of Kitchen v. Bartsch (c), and said, "that in the absence of any intervention by the assignees, it did not seem to lie in the mouth of the defendant to resist the claim on the ground of the incompetency of the plaintiff to contract ;" and they refused the rule as to that point. It is true that this was a decision upon the 1 Geo. IV. c. 119, which contains no clause similar to that in the present act, in regard to property and debts accruing to the insolvent during his imprisonment (d). But if there be any analogy between a bankrupt and an insolvent in this respect, the latter may sue (unless the assignee interpose) in the same manner and upon the same principle that a bankrupt may sue on contracts made after the commission and before he obtains his certificate; although the assignees are also entitled to sue if they please to interfere.

10. OF CONTRACTS WITH PERSONS UNDER DURESS.

To give validity to a contract, the law requires the free assent of the party who becomes chargeable thereon; and therefore avoids an agreement, or any instrument extorted from him by

(a) Ante, 197.

(b) 4 B. & C. 420 ; 6 D. & R. 491, S. C.

(c) 7 East, 53, cited ante, 193, note(). (d) See Pepper v. Marshall, 9 Moore, 710; 2 Bing. 372, S. C.

terror or violence; and this whether the duress proceeds from the person to whom the promise or obligation is made, or his agent (d). But in order to avoid an agreement, it must be obtained by duress of the person,-duress of the goods will not suffice (e).

The old books (f) abound with decisions relative to duress; but as a defence of this nature has now become of rare occurrence, it will be sufficient to notice the leading rules on the subject.

Duress (durities) may either consist of actual violence, or a threat thereof (g).

Actual violence.-Actual imprisonment in a common prison, or elsewhere, constitutes duress to avoid an agreement, if the confinement be unlawful; or if being lawful, undue and illegal force be used, or the party is made to endure unnecessary and unlawful privation, as want of food, &c., and to obtain his liberty, or avoid such illegal hardship or privation, is induced to make the contract, &c. (h).

Executio juris non habet injuriam.—An imprisonment is not deemed sufficient duress to avoid an agreement, obtained through the medium of its coercion, if the party was in proper custody under the regular process of a court of competent jurisdiction (i).

After judgment in an action, the defendant, having no good cause of action, caused the plaintiff to be arrested and detained in prison, threatening him that if he would not seal a release to him, he should lie there and rot; and thereupon he sealed the release, and was discharged. The Chief Justice (Bridgman) held, at nisi prius, that the release was good, "because he was in custody in the course of law by the king's writ, when he signed it (k)."

It would probably be held, that an agreement made whilst the party was in confinement in a civil action, regular in form,

(d) 1 Rol. Ab. 688.

(e) Atlee v. Backhouse, 3 Mee. & W. 650.

(f) See Bac. Ab. and Vin. Ab. tit. Duress; Com. Dig. Pleader (2 W. 19).

(g) 2 East, 482, 483; 1 Bla. C. 136, 137; 1 Pothier, by Evans, 15; French Civil Code, Book 3, tit. 3, art.

1111.

(h) Id.; 2 Inst. 482; Bul. N. P.

172; 1 Bla. C. 136, 137; Williams v. Brown, 3 B. & P. 68; The King v. Southerton, 6 East, 140; Pole v. Harrobin, 9 East, 417, note.

(i) Id.; Stepney v. Lloyd, Cro. Eliz. 647; 4 Inst. 47; 1 Rol. Ab. 687.

(k) Anon. 1 Lev. 68; sed vide Bul. N. P. 172. Qy. as to relief in equity, see Cossart v. Sothon, 2 Vern. 497; Prec. Chan. 266.

upon an arrest for a debt without probable cause, is not inoperative on the ground of duress.

However, a bond given without consideration, under the alarm and restraint of an actual imprisonment upon a justice's warrant for stealing goods, upon the promise of the accuser to discharge the prisoner, was held not to be binding, on the ground of duress, it appearing that the charge was utterly false and vexatious (1).

Duress per minas is where the party enters into a contract1st, for fear of loss of life; 2ndly, of loss of member; 3rdly, of mayhem; 4thly, of imprisonment (m).

But it seems that a contract obtained by menace of a mere battery, or trespass of lands, or goods (n), is binding (o); the law considering that such a threat is not of a nature to overcome a firm and prudent man, because sufficient and adequate redress may be obtained, if either of such injuries be inflicted. Whereas for serious and actual personal violence, no damages can be an adequate compensation; and therefore even a man of ordinary firmness may be unable to withstand the threat and immediate danger of such personal mischief.

It is also laid down in the old books (p), that a threat of burning a house is not a sufficient duress to avoid a bond, &c., given under the influence of such menace. But it may perhaps be doubted whether, at the present day, the threat to commit so serious an injury would not be considered a sufficient duress; for the threatened act is not only a capital offence, but naturally involves and endangers personal safety.

By whom suffered. -The general rule is, that the duress. must be suffered by the party who enters into the contract; and that if a stranger, not under its influence, enter into an agreement to obviate the duress which another undergoes, the agreement is good (q). But it seems that duress to the wife or child would avoid a contract, given under its influence, by the husband or parent (r). The French law is to this effect: La violence est

(1) Anon. Aleyn. R. 92. Semble, however, that the bond was void on another ground, namely, that it was given upon an agreement to stifle a prosecution for a felony.

(m) 2 Inst. 483; 2 Rol. Ab. 124; Bac. Ab. Duress, (A).

(n) Atlee v. Backhouse, 3 Mee. & W. 642, 650; Sumner v. Ferryman, 11 Mod. 201; Astley v. Reynolds,

Stra. 917; Bul. N. P. 173; sed vide 1
Rol. Ab. 687, pl. 6. Or to institute a
prosecution for penalties, &c., The
King v. Southerton, 6 East, 140.

(0) Id.; Bac. Ab. Duress; Co. Litt. 253 b.

(p) Id.

(9) Bac. Ab. Duress, (B).
(r) 1 Rol. Ab. 687.

une cause de nullité du contrat, non seulement lorsqu'elle a été exercée sur la partie contractante, mais encore lorsqu'elle l'a été sur son époux, ou sur son épouse, sur ses descendants ou ses ascendants (s). Where a bond was given by a third person, on the discharge of one who had been unlawfully impressed, conditioned for the man's being returned into custody, or in default thereof, for the payment of 501., the bond was held void, for the impressing of the man was unlawful; and besides, the officer had no power to commute the services of one who was impressed, or to discharge him in consideration of money to be paid (t).

Clearly the contract would be available in favour of the party suffering the duress, and against the party inflicting the same.

By the French law, "un contrat ne peut plus étre attaqué pour cause de violence, si, depuis que la violence a cessé, ce contrat a été approuvé, soit expressément, soit tacitement (u);" a principle which it seems also applies to our law.

Pleading it.-Duress must be specially pleaded, or it cannot be given in evidence (x).

SECTION II.

Of Contracts with Persons competent to Contract.

1. Principal and Agent; or Master | 6. Corporations.

and Servant.

2. Partners.

3. Assignees of Bankrupts.

4. Assignees of Insolvent Debtors.

5. Executors and Administrators.

7. Government Agents.

8. Commissioners of Roads, &c.
9. Trustees.

10. Parish Officers.

1.-PRINCIPAL AND AGENT, or MASTER AND SERVANT (a). 1. Of the different Descriptions of Agents.

2. Of their Appointment, and the Revocation of their Power. 3. The Extent of their Authority, and the Liability of the Principal.

4. Of the Principal's Right of Action upon the Contract. 5. When the Agent is personally liable on the Contract. 6. When he may sue thereon.