
    John Meek v. Thomas Atkinson.
    Columbia,
    May, 1828.
    A party, whilst in custody under hail process, surrendered the property in dispute, on condition, that the plaintiff would discontinue his action and discharge the costs ; which condition tras duly performed. The suit not being groundless, and no improper use having been made of the process to extort the surrender: Held, (hat the effect of the latter could not be avoided on the ground, that it had been made under duress.
    
    A contract, made by a parly in custody, under process of law, cannot be avoided on the ground of duress, unless the arrest was without sufficient cause, or lawful authority, or an improper use has been made of the process, in order to extort an undue advantage by its means.
    If a party, in possession of personal property, having matured a title to it by the statute of limitations, surrender his possession upon a compromise with the original owner, he cannot afterwards set up his title under the statute, although at. the time of making the surrender, he avowed his intention to pursue his right.
    Tried before Mr. Justice Johnson, at Newberry, Fall Term, 1827.
    Trover for a slave named Charlotte, and her child Eliza. The plaintiff and defendant had married daughters of William Spraggins ; and both claimed the slaves, in dispute, by gift from their father-in-law. The gift of Charlotte to the plaintiff before the birth of her child, and his possession for fourteen or fifteen years, until the conversion by defendant a short time previous to the commencement of the present action, were fully proved. On the other hand, several witnesses testified, that William Spraggins had frequently acknowledged, during his life time, that long before the gift to plaintiff, and before the birth of Charlotte herself, he had made a formal gift of Hannah, her mother, to the wife of defendant. These acknowledgements were repeated by tlie donor down to a late period ;. although be declared that the gift was improvident, and, he thought, would not bind him in law. Hannah remained in Spraggins’ possession until his own death. After that event, the defendant claimed Charlotte and her child, but the plaintiff refused to give them up; and retained possession until they were surrendered under the following circumstances.
    The plaintiff, who resided in Laurens, went over to Abbeville, to attend the sale of Spraggins’ estate; and whilst there," very early in the morning, and before any company had arrived, was arrested on three several bail writs at the suit of the present defendant, one in trover for the slaves in dispute, and two others for debt. The only persons present were Thomas Spraggins and a Mr. Brown, both of whom declined becoming his bail. He then requested the officer, who arrested him, to wait until his Laurens friends came in, which the latter readily consented to do, and even offered to go with him over to Laurens. The parties then entered into a treaty, with a view to compromise their disputes; when it was agreed, that the plaintiff should surrender Charlotte and her child to the defendant, and pay the debts for which he was sued, and that the defendant should withdraw his suits, and discharge the costs. The plaintiff declared openlyat the time, that he would have the negroes back again at the risk of his life ; but afterwards stated, that as defendant had taken one of his children to bring up, and had none of his own, it would, perhaps, be better for the child, that the defendant should have the negroes, although he had no right to them.
    The agreement was duly performed on both sides; but shortly after surrendering the slaves, the plaintiff brought this action. At the trial, in addition to the foregoing facts, it appeared, that at the period of the plaintiff’s visit to Abbeville, he was on the eve of emigrating to Alabama, and had completed every preparation for doing so ; and it was not denied, that the debts, for which he had been held to bail in Abbeville, were justly due by him to defendant.
    The plaintiff, nevertheless, contended, that the surrender had been obtained by duress, and could not avail to defeat his title, which, if doubtful intrinsically, had been fully matured by the statute of limitations. The presiding Judge was of a different opinion, and so charged; but the jury found for the plaintiff the value of the slaves. The defendant now moved to set aside their verdict, and for a new trial, on the following grounds.
    1. That the gift from William Spraggins to defendant’s wife, was fully proved ; and established a title in him paramount to the plaintiff’s.
    2. That lapse of time was, under the circumstances, no bar to the defendant’s title.
    
    3. That the compromise of a former suit between the same parties iu relation to the same matter, in which the slaves in dispute had been voluntarily surrendered by plaintiff to the defendant, was founded on a good and valuable consideration, and is binding and conclusive between the parties. And that the alleged pretence of duress has no foundation, either in fact or in law.
    4. That the verdict is against law and evidence.
    Bauskett, and Dunlop, for the motion.
    Moore, contra.
    
   Johnson, J.

delivered the opinion of the Court.

The gift of Hannah to the defendant’s wife, and of Charlotte to the plaintiff himself, by their father-in-law, William Sprag-gins, were clearly and satisfactorily proved ; as was also the plaintiff’s possession of Charlotte for fourteen or fifteen years before he delivered her up to the defendant. From these facts it follows, that in respect to their several gifts, the property in Charlotte and her child, the slaves in dispute, was in the defendant ; but that the plaintiff’s long and undisputed possession was, under the statute of limitations, a bar to his right of recovery : and the only debatable ground is, whether the surrender and delivery of them, made by the plaintiff to the defendant, is a bar to his claim. The ground taken by his counsel is, that it was made under circumstances amounting to duress, and therefore deprived him of no right.

That a contract, extorted by means of duress of the person, imposes no obligation on the party to be bound, and deprives him of no right, is a proposition which no one will be disposed to controvert: and it would seem, according to the cases of Collins v. Westbury and Brown, 2 Bay, 211, and Sasportas v. Jennings and Woodrop, 1 Id. 470, which have been much relied on, on account of their supposed analogy to this ease, that under peculiar circumstances of hardship, duress of goods will be a good ground to avoid a bond given for their release. But I apprehend that a contract is not necessarily void, because even the person of the party to be bound is under restraint. One who is lawfully imprisoned may enter into a contract to obtain his discharge, or he will, in general, be bound by any contract he may make: and so with respect to duress of his goods. Contracts made with respect to them, are not necessarily void; for they may be based on a good and valuable consideration. And I take it, that it is only in those cases where the arrest is without sufficient cause, ox lawful authority, or where an improper use has been made of it, and an advantage gained, that the party can avoid his contract; and this appears to have been the principle on which the cases above cited were decided.

The arrest in this case was made under lawful authority, in pursuance of an apparently well founded cause of action, and by an officer duly qualified ; and the question is, whether the defendant used the occasion to extort an unjust and uneonsionable contract from the plaintiff. The allegation on the part of the plantiff is, that the defendant availed himself of the accidental circumstance of his going into an adjoining district, to make the arrest at a place, distant from that in which the plaintiff’s friends resided, at a time when all his preparations had been made to remove to a distant country ; and that he had no alternative but to surrender his property, or go to gaol. These are, however, highly drawn colourings of the facts. It is true, that the arrest was made in an adjoining district, and out of the immediate neighborhood of the plaintiff’s residence. It was not, however, without the reach of his acquaintance; but on the contrary, was at the house of his brother-i 11-law, at which his particular fríen ds were expected to arrive in the course of a few hours. Every indulgence, too, which this state of things permitted, was afforded to him by the deputy sheriff who arrested him ; and the circumstance, that he had made arrangements to remove from the State without paying the defendant what he owed him, or delivering up the slaves which he claimed, rendered further delay on the part of the defendant a matter of hazard. A prudent man, if he had intended to assert his rights, would not have delayed much longer. So much for the circumstances, let us now examine the contract itself.

There is no complaint so far as the contract went to discharge ^)e ^e^ts> which plaintiff owed to defendant; they are admittedto ^ave been justly due. It will be recollected, that the slaves in dispute did belong to the defendant, and that he had only lost , . , . . , , , , ,, . his remedy to recover them by too much delay, probably in respect to his father-in-law, William Spraggins, who had given them to the plaintiff. Was there any thing unjust, unreasonable, or unconscionable, in'his seeking to recover them by due course of law % Could he know that the plaintiff would consent to avail himself of the lapse of time, which some men would have regarded as unwarantable ? Or was the surrender made by the plaintiff, and the acceptance by the defendant, under these circumstances, such as to induce a belief, that the latter acted from necessity, and that the former used the occasion to extort an unjust contract from him 1 I think not.

Much reliance has been placed on the circumstance that the plaintiff avowed his determination to pursue his right to the slaves, notwithstanding that he had consented to give them up to the defendant. But that'of itself could not avail him, any more than if he had sold them for a valuable consideration, and at the same time, declared that the purchaser should not have them. It can, at most, only amount to a circumstance in aid of the proof of duress, and is, I think, fully balanced by the fact, that he subsequently, and before he delivered the negro, avowed, that the defendant’s having taken one of his children to bring up was a motive to the compromise.

I am, therefore, of opinion, that the motion for a new trial must prevail.

Motion granted.  