
    Mathew Collins against Elizabeth Westbury and Burwell Brown.
    Columbia,
    April, 1799
    
      Dilress of goods or ne-groeSfiB^good pléa to a bond given to procure their release, under1 hard & pressing circumstances,-which aré very proper for the consideration, of a jury. A demurrer to such a pled overruled,and a respondeat ouster award*
    DEBT on bond. Plea, duress„
    It appeared that the plaintiff in this action had sonie claim against the defendants, which they refused to admit of or pay, as an unjust demand ; and he did not think proper to bring any action against them, till they were on their way removing to Georgia, with their families, negroes, and other property. While they were thus in transitu, actually on the road, a considerable distance from their former resk dence, the plaintiff sued out an attachment against them, and seized their negroes for this supposed demand. In this embarrassing situation they knew not what to do, being in tbe utmost distress, at a. distance from their former friends*, among strangers; and to proneed without their negroes,-would have been leaving themselves without the means of support. While in this distressing dilemma, the plaintiff himself proposed a compromise of this old demand ; which sad necessity at last, and as the only means left for getting back their negroes, they, consented to, and gave the bond on which the present suit was brought.
    e Inst. 483. 1 liluck. 131..
    To this plea there was a demurrer, and the cause shewn was, that duress of goods would not bar the plaintiff of his right of action on the bond, even if it had been given to obtain the release of the negroes.
    In support of the demurrer, it was urged on behalf of the plaintiff, that he had done no one act but what was agreeable to law. He had a demand,- which he conceived to be a just one, against the defendants, and he had pursued the legal means pointed out by law for recovery of it. That defendants had thought proper to compromise this demand, and gave this bond for it. There was no compulsion, threats or force made use of on the occasion ; it was voluntarily given. But, even admitting he had forcibly, or even fraudulently, got possession of the negroes, which were attached ;■ the law had provided remedies for such injuries, trespass, trover or detinue would have lain for them, and to such legal action the defendants should have had recourse. That duress of goods or chattels alone will never be a good plea against a bond or other solemn contract entered int« for the payment of money.
    To this it was answered, that a man’s necessities might be so great, and circumstances might so cembine and press upon him, as to oblige him to do an act, which he never would have consented to, unless compelled by such iirgent and peculiar incidents, as left him no other alternative to get back his goods, but by signing such a bond as the present one ; and therefore, the law would allow him thé privilege of avoiding a bond given under such circuipstan-ces, as an unreasonable and unwarrantable exaction, so as to place the parties in their original situation with respect to each other. Even moneys paid under similar circumstances, may bé recovered back from the party unreasonably exacting it. And what made the circumstances of this case hard and rigid in the extreme, was, that no attempt was ever made for the recovery of this demand, while the defendants were surrounded by their friends, and in a situation to defend themselves ; but when on their journey, and at a distance from all their friends, this hard and severe measure was taken, to seise the property, and to compel them to give the bond in question. There was not the smallest pretext of their going off privately, or with a View of defrauding creditors ; they went off in the face and presence of all their old neighbours, and their designs and intentions of removing had been known for a long time before their departure.
   Per Curiam.

So cautiously does the law watch over all contracts, that it will not permit any to be binding but such as are made by persons perfectly free, and at full liberty to make or refuse such contracts, and that not only with respect to their persons, but in regard to their goods and chattels also. Contracts to be binding must not be made under any restraint -or fear of their persons, otherwise they are void, as in the case of Evans v. Huey and Franklin, vol. 1. p. 13. (Riley’s edit.) where a note was deemed void, both as to principal and his security, where a party of armed men, in quest of horse thieves, called at a man’s house in the night, and Evans, one of the party, demanded of the man of the house, a settlement or satisfaction for an injury he had sustained some time before, in a quarrel; and the defendant Huey, in order to compromise the matter, gave his note for 281. sterling, and the next morning got Franklin his neighbour to be his security. In that case, it toas deemed duress; because, an armed party going to his house in the night time, and one of them demanding a settlement for a former injury, vvas calculated to" alarm a man’s fears, although hei threats were made use of. This to be sure was only a case- But it has been a leading case on th® subject, and admitted as the law of duress, ever siilce. See also, 2 Powell on Contracts, 159. So in like manner, duress of goods will avoid a contract, where an unjust and unreasonable advantage is taken of a man’s necessities, by getting his goods into his possession, and there is no other speedy means left, of getting them back again, but by giving a note or a bond, or where a man’s necessities may be so great as not to admit of the ordinary process of law, to afford him relief, as was determined in this court after solemn argument, in the case of Sasportas v. Jennings and Woodrop, vol. 1. p. 470. (Riley’s edit.) also in the case of Ashley v. Reynolds, 2 Str. 916. In the case under consideration, the facts are admitted by the demurrer that the negroes were seized by the plaintiff under and by virtue of this attach-* ment, and that this bond was given to procure their release, at a time when the defendant could not wait the slow progress of law, to obtain redress. It is very clear, therefore, that the plea of duress, was a good plea; and the whole of the circumstances ought to have gone to the jury. Judgment was therefore given for defendant in demurrer, and a respondeat ouster awarded.

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