
    Russel Watkins versus Aaron Baird.
    Where one falsely, maliciously, and without probable cause, arrests and imprisons another on a process, legal and regular in form, and obtains a deed from the party so arrested, to procure his deliverance, such deed may be avoided by duress of -imprisonment.
    This action was indebitatus assumpsit for money had and received.
    The defendant pleaded, 1. The general issue, which was joined. 2. A deed of release of this action, and of all demands. [*507 ] *To the second plea, the plaintiff replied duress of inprisonment, which is set forth specially, that the defendant caused the plaintiff to be arrested on a false, feigned, and groundless suit, whereby he was committed to jail; that, being so in prison, the defendant fraudulently proposed a compromise, that the plaintiff should make a release, as set forth in the defendant’s plea, and that the defen dan* should pay 175 dollars, partin money, and the residue in a promiss ry note, which he avers was 83 dollars less than was justly due ; that thereupon the plaintiff, to obtain his discharge from that imprisonment, made the release which the defendant received; and that he fraudulently neglected and refused to perform the compromise on his part.
    The defendant rejoined, that the deed of release was made freely, and for a good and valuable consideration, with a traverse in these words: “ without this that the said Russel did execute the said instrument of release by force of duress and false imprisonment, and to procure his release therefrom, as is above supposed and alleged in the replication of the said Russel; ” and he tendered an • issue to the country, which was joined.
    These issues were tried before Sedgwick, J., who reports that, “As to the plaintiff’s right to recover, independent of the facts hereafter stated, it is unnecessary to say more, than that it was established by evidence perfectly satisfactory and uncontradicted.”
    “ The plaintiff is an inhabitant of the state of New York, and the defendant of Blandford, in the county of Hampshire. This action was commenced on the 9th day of July, 1808. In the beginning of September, afterwards, the defendant applied to one Asa Culver, and informed him that the plaintiff had commenced this action, but that he owed him nothing; and he then engaged Culver, on what consideration did not appear, to go to the plaintiff ’s place of residence in the state of New York, and endeavor to per suade him to come into this state, under an expectation of making a settlement with the defendant, and of obtaining payment of what was due to him.”
    * “ Culver went accordingly, found the plaintiff, and [ * 508 ] persuaded him to come into the town of Pittsfield, in this county. As an inducement, Culver informed the plaintiff that the defendant was willing to submit any disputes there might be relative to the debt claimed by the plaintiff to arbitration ; that the defendant had a good horse, which he would turn out in payment; that he himself had money, and that he would lend the defendant forty dollars to pay the plaintiff; and, to convince him that he did not mean to deceive him, he took money from his pocket, and showed it.”
    “ On arriving at Pittsfield, Culver, as had been previously agreed between him and the defendant, went with the plaintiff to one public house, while the defendant was at another. Soon after this, the plaintiff was arrested at the suit of the defendant, and carried to jail. Within one or two hours after the plaintiff was committed to jail, the defendant and Culver went there, and a conversation took place between the parties in the presence of Isaac Cowan. The defendant, as Cowan swore, made several propositions, which were rejected. At length it was agreed that the defendant should pay a sum of money, about seventy dollars, and make a note to deliver a certain quantity of pork and cheese, (but the witness could not recollect either the quantity or the estimated value,) and that the suit on which the plaintiff was then committed should be discharged, and also this action, and that the plaintiff was to discharge all the demands he had against the defendant, except for the pork and cheese.”
    
      “ Hereupon Eldad Lewis, Esq. was applied toby the defendant to make the necessary writings. He accordingly went to the jail with the defendant. Mr. Lewis testified in substance to the agreement as stated by Cowan; with these differences, that he did not remember the money which Cowan said was to be paid, and that, according to his recollection, a note was to be given by the defendant to the plaintiff for the whole sum due to him. Mr. Lewis then proceeded to make the writings necessary to carry * the agreement into effect. All the writings that were [ * 509 ] ever signed and executed were done in the jail; but none were then or afterwards delivered.”
    
      “ After this, the defendant proposed going into the jailer’s barroom, tc deliver the writings, and finish the business; and for that purpose the defendant released the plaintiff from the suit, on which he was committed, by an endorsement on the copy of the writ left with the jailer.”
    
      “ They went accordingly with the papers. Fresh altercations took place. Baird declined signing the note, because he said lie was bound for Watkins to one Bellamy for a considerable sum of money, to indemnify him against which a bond was made from Watkins to him. Baird took the papers, and went away, saying he would make a final settlement at the coffee-house. Watkins took no. papers, but followed him to the coffee-house, where he complained of ill-treatment and injustice, as he also did all the way from thence to Bittsfield, but without obtaining any redress.”
    " There was not the least pretence from the evidence, that there was any thing due from the plaintiff to the defendant.”
    “ The writ in favor of the defendant against the plaintiff had never been returned, but a copy, which was left with the jailer when Watkins was committed, with a release of the action endorsed on the back of it, and signed by Baird,, and a copy of the return of the officer also endorsed, was produced. The officer who certified the copy was produced as a witness, and swore that he had the original writ, and served it by committing Watkins to jail, and that he believed he delivered it to the attorneys from whom he received it, to be returned to the clerk of the court; and that he so believed, because such was his common practice. The attorneys by whom the writ was delivered to the officer swore that they had diligently-searched for it in their office, and could not find it. It was agreed that the clerk had searched his office, and could not find [ * 510 ] it, and, in * fact, that it had never been returned to him.
    Hereupon the copy left with the jailer was admitted in evidence, although objected to by Watkins, the plaintiff.”
    “ The jury were instructed that, if they believed the evidence, which there seemed to be no good reason to doubt, it was manifest that the release pleaded by the defendant was never, in fact, delivered, and, therefore, was not the deed of the plaintiff. Yet, being by the pleadings admitted by the plaintiff to be his deed, he was estopped from denying it to be so, and that they were, therefore, bound to consider it as having been delivered ; and they were further instructed, if the evidence was true, that gross oppression and injustice had been practised by the defendant to obtain the release ; and that, although the plaintiff, at the time that it was obtained, was in prison by virtue of a process of law duly executed, yet that the proceeding was, on the part of the defendant, such a perversion of justice, that his conduct was not entitled to a more favorable consideration, than if there had been no legal process, and, therefore, that it would be their duty to find the second issue in favor of the plaintiff. — The jury found both issues for the plaintiff; and the defendant moved for a new trial, for the misdirection of the judge.”
    
      Hulbert, in support of the motion for a new trial, argued that, here being a legal process for a lawful demand, duly instituted and prosecuted, there was no such duress as was sufficient in law to avoid the deed ; for if a man be lawfully imprisoned, and, to procure his discharge, make a deed, this is not by duress of imprisonment, nor can he on this account avoid his deed. Where one is imprisoned by writ, he cannot be said to be under duress; but if, in that condition, he is oppressed, and thus induced to execute a deed, the deed will be good, and he must resort to his action for indemnity.  However unworthy the defendant’s conduct may have been, in enticing the plaintiff from the state of New York, it can have no legal operation, nor alter the law as to what took place afterwards.
    * Ashmun and Gold, of counsel for the plaintiff,
    were [*511 ] stopped by the Court.
    The opinion of the Court was afterwards delivered by
    
      
       1 Black. Com. 136. — 7 Vin. Abr. tit. Duress, B. 25, 29, 32. — Hob. 266. — Lev. 68, 69.
    
   Parsons, C. J.

[After a brief recital of the pleadings, and of the judge’s report.]

It is a general rule, that imprisonment by order of law is not duress : but to constitute duress by imprisonment, either the imprisonment, or the duress after, must be tortious and unlawful. If, therefore, a man, supposing that he has cause of action against another, by lawful process cause him to be arrested and imprisoned, and the defendant voluntarily execute a deed for his deliverance, he cannot avoid such deed by duress of imprisonment, although, in fact, the plaintiff had no cause of action. And although the imprisonment be lawful, yet, unless the deed be made freely and voluntarily, it may be avoided by duress. And if the imprisonment be originally lawful, yet if the party obtaining the deed detain the prisoner in prison unlawfully, by covin with the jailer, this is a duress which will.avoid the deed. But when the imprisonment is unlawful, although by color of legal process, yet a deed obtained from a prisoner for his deliverance, by him who is a party to the unlawful imprisonment, may be avoided by duress of imprisonment. In Allen, 92, debt was sued on a bond, and duress of imprisonment pleaded in bar. The plaintiff had, on charging the defendant with felony in stealing a horse, procured a warrant from a justice, on which the defendant was arrested and imprisoned, and sealed the bond to the plaintiff to obtain his discharge, which was done, the horse appearing to be his own norse. Roll, J., directed the jury that, the proceedings being had to cover the deceit, the bond was obtained by duress.

And, in our opinion, it is a sound and correct principle of law, when a man shall falsely, maliciously, and without probable cause, sue out a process, in form regular and legal, to arrest and imprison another, and shall obtain a deed from a party thus ar[*512] rested to procure his deliverance, such * deed may be avoided by duress of imprisonment. For such imprisonment is tortious and unlawful as to the party procuring it; and he is answerable in damages for the tort, in an action for a false and malicious prosecution ; the suing of legal process being an abuse of the law, and a proceeding to cover the fraud. And although Bridgman, in Lev. 68, 9, is made to say, that imprisonment in custody of law by the king’s writ will not be duress to avoid a deed, when the arrest is without cause of action, because the party has his remedy by action of the case, yet this must be a mistake, as there is no remedy by action for suing a groundless suit, unless the suit be without probable cause, and malicious. And if it be, certainly the imprisonment is wrongful, as to the party who maliciously procured it.

Now, on examining the facts reported by the judge in the case at bar, it is apparent that the suit, on which the plaintiff was imprisoned, was without probable cause, there being, indeed, no color for it. And the evidence was sufficient for the jury, to infer that the suit was also malicious. The plaintiff was wickedly, and by false pretences, decoyed from his home, in the state of New York, into this county. Here he was immediately arrested at the defendant’s suit, who had no cause of action against him, the present action being then pending. And the object of the release was to bar this action.

Upon the whole, the oppression was gross and flagrant; and it would be a reproach to the law, if it would allow to this release, thus unjustly and fraudulently obtained, any legal effect against the plaintiff, so injuriously and dishonorably treated. The direction of the judge appears to be correct; and in our opinion the plaintiff ought to have judgment.

Let judgment be entered on the verdict. 
      
       2 Inst. 482.
     
      
       Vide Hob. & Lev., ubi supra.
      
     
      
       43 E. 3, 10, b, pl. 32
     
      
      
        Cro. Jac. 187, Huscombe vs. Standing
      
     
      
      
        [Meek vs. Atkinson, 1 Bailey, 84.— Ed.]
     