Richardson v. Duncan

3 N.H. 508

• Court: Superior Court of New Hampshire
• Decided: October 15, 1826
• Status: Published

Opinion

RiciiardsoN, C. J.

delivered the opinion of the court.

We had an impression, when this case was opened, upon the trial before the jury, that, the plaintiff being in custody by virtue of a warrant in due form of law, the contract, he made with the defendant, could not be considered as made by duress, so as to render it void ; and on this ground a nonsuit was directed. But, upon an attentive examination of the authorities cited by the plaintiff’s counsel,we are now con-vuiced, that our impressions were erroneous, and that Ae ea^e of Ae plaintiff ought to have been submitted ío ¡he jury

The only case, which we have found to jusijfr >■ ¡under the circumstances of this cause, is Ae one in 1 Leo 88, which was an audita quirélü, on a release given after judgment ; and the question was. whethei the release was ¡o ⅛ by duress ? The evidence, was, that the defendant, not having good cause of action, caused the plaintiff <o be arrested, and detained in prison, till he made the release, with menances,That he should lie in prison and rot, if he would not seal a release ; and Bridgman, C. J. held, that he being in custody of the law, by the King’s writ, it was not any duress, to be pleaded in avoidance of the deed. But he offered to have it found specially ; if the plaintiff’s counsel requested •it; but he did not request it.

But it is now well settled, that when there is an arrest for improper purposes, without a just cause ; or where there is an arrest for a just cause ; but without lawful authority ; or where there re an arrest for a just cause, and under lawful authority, for unlawful purposes, it may be construed a duress. Buller's N. P. 172.—6 Mass. Rep 506, Watkins vs. Baird.—Com. Dig. “ Pleader,” 2 W 19.—1 Rolle's Ab 687.

We are therefore of opinion, that the nonsuit in this case must beset aside, and the cause stand for trial.