Oak v. Dustin

Walton, J.

This is an action of scire facias on a bail bond. The defense is duress. Not duress of the surety, against whom the action is brought, but duress of the principal in the bond, who is not sued. It is claimed that he was unlawfully arrested on a writ, the oath, as the defendant contends, not being sufficiently formal to justify his arrest. The defense can not prevail. The person on whom the duress was practiced is the only one who can take advantage of it as a ground of defense. It can not be set up by a stranger, nor by a surety, on whom no restraint was imposed. Springfield Card Man. Co. v. West, 1 Cush. 388 ; Robinson v. Gould, 11 Cush. 55 .

In the case last cited' it is said that this distinction rests on sound principle; that he only should be allowed to avoid his contract upon whom the unlawful restraint or fear has operated; that the contract of a surety, if his own free act, and executed without coercion or illegal menace, should be held binding; that the duress of his principal can not affect his free agency, or in any way control his action; that it may excite his feelings, *25 awaken bis generosity, and induce him to act from motives of charity and benevolence towards his neighbor; but that these can furnish no valid ground of defense' against his contract, which he has entered into freely and without coercion.

The defense of duress not being open to the defendant, it is not important to inquire whether his principal was or was not unlawfully arrested. But it may not be improper to add that the authorities cited by the plaintiff’s counsel seem to sustain the form of the oath and the legality of the arrest; and, if so, then there was no duress of any one. But upon this point we express no opinion.

Judgment for plaintiff for ‡101.86, with interest from date of the writ.

Peters, C. J., Danforth, Emery, Foster and Haskell, JJ., concurred.