expressed or implied, he may, notwithstanding the statute, have his remedy by action at common law. I Com. Dig. Action on Statute, C. There are no words in the statute, either expressly or impliedly, negativing the common-law remedy. The injured party cannot have both remedies, and if he neglect to pursue the statute remedy for more than a year, his right of action at common law would be suspended during the second year, for, peradventure, a third person may prosecute.

NATIONAL BANK ACT.-In Barnet v. National Bank, 98 U. S. 555 (1878), in an action upon a bill of exchange, defendant sought to apply as payment upon the bill, usurious interest paid. The court said (p. 557): "The national currency act of Congress of June 3, 1864 (13 Stat. 99, § 30), after prescribing the rate of interest to be taken by the banks created under it declares:

'And the knowingly taking, receiving, reserving, or charging a rate of interest greater than aforesaid shall be held and adjudged to be a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon; and in case a greater rate of interest has been paid, the person or persons paying the same, or their legal representatives, may recover back, in any action of debt, twice the amount of interest thus paid, from the association taking or receiving the same; provided, that such action is commenced within two years from the time the usurious transaction occurred.' * * * * The remedy given by the statute for the wrong is a penal suit. To that the party aggrieved or his legal representative must resort. He can have redress in no other mode or form of procedure. The statute which gives the right prescribes the redress, and both provisions are alike obligatory upon the parties. While the plaintiff in such cases, upon making out the facts, has a clear right to recover, the defendant has a right to insist that the prosecution shall be by suit brought specially and exclusively for that purpose,-where the sole issue is the guilt or innocence of the accused, without the presence of any extraneous facts which might confuse the case, and mislead the jury to the prejudice of either party."

REAL ESTATE TRUST CO. v. KEECH.

69 N. Y. 248.-1877.

THIS action was brought to foreclose a mortgage given to secure a bond for $19,000. The defense was usury. After the bond became due, it was agreed between plaintiff and defendant that in consideration of the sum of $1,000 paid by defendant, the time of payment should be extended for six months. The sum so paid was to be over and above lawful interest.

Accord, Caponigri v. Altieri, 165 N. Y. 255 (1901), construing § 74 of the New York Banking Law.

WOODRUFF'S CASES-33

ANDREWS, J.-The bond and mortgage were valid in their inception, and the usurious agreement for the extension of the time of payment after the debt became due, did not affect their validity. The agreement for forbearance was void, but the original debt and the securities given for it remained in full force. Blydenburg on Usury 97; Swartwout v. Payne, 19 J. R. 294; Merrills v. Law, 9 Cow. 65; Rice v. Welling, 5 Wend. 595; Farmers' and Mechanics' Bank v. Joslyn, 37 N. Y. 353.

The sum paid on the usurious agreement for forbearance will, in equity, be applied as a payment on the original debt, and the defendant was entitled to have the one thousand dollars paid by him on the unlawful agreement credited on the bond and mortgage. Crane v. Hubbel, 7 Paige 413; Judd v. Seaver, 8 id. 548. *

* *1

v. Duress of Person.

MORSE v. WOODWORTH.

155 MASS. 233.-1892.

ACTION of contract to recover the amount of three promissory notes given by defendant to plaintiff, and delivered up to defendant by plaintiff and mutual releases executed under threats of prosecution and arrest on a criminal charge of embezzling defendant's money.

The court charged the jury in substance that to constitute duress by threats of imprisonment the threats must be such as actually overcame the will of the plaintiff, and that in testing the question

'Generally at common law "the right to recover the usurious excess does not accrue until after the loan with legal interest has been paid. Doug. 697; Briggs v. Thompson [20 J. R. 293]; see remarks of Paige, J., 2 Seld. 113." Wheelock v. Lee, 64 N. Y. 242, 246 (1876). Now contra by statute in New York, see New York General Business Law, § 377.

In Davis v. Converse, 35 Vt. 503 (1863), the court says (p. 507): "It now seems to be settled by repeated decisions, that where usury is included in a note or other security, and when paid is endorsed upon the note, it is to be considered as a payment upon the note itself, and no action can be maintained to recover back the usury paid, so long as there remains due any part of the principal and lawful interest, but that where the security is only for the principal and legal interest, and the unlawful interest is either put into a separate obligation, or rests in a verbal agreement, so that when paid it is not endorsed upon the note, but is paid as usury eo nomine, it is otherwise, and a right of action accrues immediately to sue and recover it back, though the lawful debt is still unpaid. Grow v. Albee, 19 Vt. 540; Nelson v. Cooley, 20 Vt. 201; Day v. Cummings, 19 Vt. 496; Nichols v. Bellows, 22 Vt. 581; Ward v. Whitney, 32 Vt. 89."

In Cummings v. Knight, 65 N. H. 202 (1889), the payor of usurious interest was not allowed to have it applied upon the principal after his right to recover such interest had been barred by the Statute of Limitations.

the jury might consider whether they were such as would overcome the will of a man of ordinary firmness; and refused to charge, at the request of defendant, that if the defendant believed plaintiff had wrongfully taken money belonging to defendant, and no civil or criminal proceeding had been begun, then mere threats of prosecution or arrest would not constitute duress, that mere threats of criminal prosecution or arrest, when no warrant has been issued or proceedings commenced, do not constitute duress. The court referred to the ambiguity in the word "mere," and reiterated its former charge. Defendant excepted. Verdict for plaintiff.

KNOWLTON, J. * * * * The only remaining exceptions relate to the requests of the defendant and the rulings of the court in regard to duress. The plaintiff contended that he gave up the notes and signed the release under duress by threats of imprisonment. The question of law involved is whether one who believes and has reason to believe that another has committed a crime, and who, by threats of prosecution and imprisonment for the crime, overcomes the will of the other, and induces him to execute a contract which he would not have made voluntarily, can enforce the contract if the other attempts to avoid it on the ground of duress.

Duress at the common law is of two kinds, duress by imprisonment and duress by threats. Some of the definitions of duress per minas are not broad enough to include constraint by threats of imprisonment. But it is well settled that threats of unlawful imprisonment may be made the means of duress, as well as threats of grievous bodily harm. The rule as to duress per minas has now a broader application than formerly. It is founded on the principle that a contract rests on the free and voluntary action of the minds of the parties meeting in an agreement which is to be binding upon them. If an influence is exerted on one of them of such a kind as to overcome his will and compel a formal assent to an undertaking when he does not really agree to it, and so to make that appear to be his act which is not his but another's, imposed on him through fear, which deprives him of self-control, there is no contract unless the other deals with him in good faith, in ignorance of the improper influence, and in the belief that he is acting voluntarily.

To set aside a contract for duress it must be shown, first, that the will of one of the parties was overcome, and that he was thus subjected to the power of another, and that the means used to induce him to act were of such a kind as would overcome the mind and will of an ordinary person. It has often been held that threats of civil suits and of ordinary proceedings against property are not enough, because ordinary persons do not cease to act voluntarily on account of such threats. But threats of imprisonment may be so violent and forceful as to have that effect. It must also be shown that the other party to the contract is not, through ignorance of the duress or for any other reason, in a position which entitles him to take advantage of a contract made under constraint without voluntary assent to it. If he knows that means

have been used to overcome the will of him with whom he is dealing, so that he is to obtain a formal agreement which is not a real agreement, it is against equity and good conscience for him to become a party to the contract, and it is unlawful for him to attempt to gain a benefit from such an influence improperly exerted. A contract obtained by duress of unlawful imprisonment is voidable. And if the imprisonment is under legal process in regular form, it is nevertheless unlawful as against one who procured it improperly for the purpose of obtaining the execution of a contract; and a contract obtained by means of it is voidable for duress. So it has been said that imprisonment under a legal process issued for a just cause is duress that will avoid a contract if such imprisonment is unlawfully used to obtain the contract. Richardson v. Duncan, 3 N. H. 508. See also Foshay v. Ferguson, 5 Hill (N. Y.) 154; United States v. Huckabee, 16 Wall. 414, 431; Miller v. Miller, 68 Penn. St. 486; Walbridge v. Arnold, 21 Conn. 424; Wood ́v. Graves, 144 Mass. 365, and cases cited.

It has sometimes been held that threats of imprisonment, to constitute duress, must be of unlawful imprisonment. But the question is, whether the threat is of imprisonment which will be unlawful in reference to the conduct of the threatener who is seeking to obtain a contract by his threat. Imprisonment that is suffered through the execution of a threat which was made for the purpose of forcing a guilty person to enter into a contract may be lawful as against the authorities and the public, but unlawful as against the threatener, when considered in reference to his effort to use for his private benefit processes provided for the protection of the public, and the punishment of crime. One who has overcome the mind and will of another for his own advantage, under such circumstances, is guilty of a perversion and abuse of laws which were made for another purpose, and he is in no position to claim the advantage of a formal contract obtained in that way, on the ground that the rights of the parties are to be determined by their language and their overt acts, without reference to the influences which moved them. In such a case, there is no reason why one should be bound by a contract obtained by force, which in reality is not his, but another's.

We are aware that there are cases which tend to support the contention of the defendant. Harmon v. Harmon, 61 Maine 227; Bodine v. Morgan, 10 Stew. 426, 428; Landa v. Obert, 45 Texas 539; Knapp v. Hyde, 60 Barb. 80. But we are of opinion that the view of the subject heretofore taken by this court, which we have followed in this opinion, rests on sound principles, and is in conformity with most of the recent decisions in such cases, both in England and America. Hackett v. King, 6 Allen 58; Taylor v. Jaques, 106 Mass. 291; Harris v. Carmody, 131 Mass. 51; Bryant v. Peck & Whipple Co., 154 Mass. 460; Williams v. Bayley, L. R. 1 H. L. 200; s. c. 4 Giff. 638, 663, note; Eadie v. Slimmon, 26 N. Y. 9; Adams v. Irving National Bank, 116 N. Y. 606; Foley v. Greene, 14 R. I.

618; Sharon v. Gager, 46 Conn. 189; Bane v. Detrick, 52 Ill. 19; Fay v. Oatley, 6 Wis. 42.

We do not intimate that a note given in consideration of money embezzled from the payee can be avoided on the ground of duress, merely because the fear of arrest and imprisonment, if he failed to pay, was one of the inducements to the embezzler to make the note. But if the fact that he is liable to arrest and imprisonment is used as a threat to overcome his will and compel a settlement which he would not have made voluntarily, the case is different. The question in every such case is, whether his liability to imprison ment was used against him, by way of a threat, to force a settlement. If so, the use was improper and unlawful, and if the threats were such as would naturally overcome the mind and will of an ordinary man, and if they overcame his, he may avoid the settle. ment. The rulings and refusals to rule were correct.

Exceptions overruled.

SILSBEE v. WEBBER.

171 MASS. 378.-1898.

PRESENT: FIELD, C. J., ALLEN, HOLMES, KNOWLTON, MORTON, LATHROP and BARKER, JJ.

HOLMES, J.-This is an action to recover money alleged to have been got from the plaintiff by duress. In the court below a verdict was directed for the defendant, and the case was reported. The plaintiff's son had been in the defendant's employ, had been accused by him of stealing the defendant's money, had signed a confession, whether freely or under duress is not material, and had agreed to give security for $1,500. There was a meeting between plaintiff and defendant, in the course of which, as the plaintiff testified, the defendant said he should have to tell the young man's father, the plaintiff's husband. At that time, according to her, her husband had trouble in his head, was melancholy, very irritable, and unable to sleep, so that she feared that if he were told the knowledge would make him insane. The plaintiff further testified that she previously had talked with the defendant about her husband's condition, and that she begged him not to tell her husband, and told him that he knew what her husband's condition was, but that he twice threatened to do it in the course of his inquiries as to what property she had, and that to prevent his doing so she the next day went by agreement to the office of the defendant's lawyer, and executed an assignment of her share in her father's estate. Her son was present, and, as he says, protested that this was extortion and blood money. It is under this assignment that the money sued for was collected. In the opinion of a majority of the court, if the evidence above stated was believed, we cannot say that the jury