Bailey v. Devine

Cobb, J.

1. The note having been executed in Colorado, and being made payable there, its validity, force, and effect are dependent upon the law of that State; and no law of that State being pleaded, it will be presumed that the common law is in force with reference to the defenses set up in the defendant’s answer. Mass. Life Asso. v. Robinson, 104 Ga. 286 ; Hollis v. Loan Asso., 104 Ga. 318 ; Kollock v. Webb, 113 Ga. 768 ; Akers v. Jefferson Bank, 120 Ga. 1066 .

2-4. At common law there were three kinds of duress, — duress of imprisonment; duress per minas, resulting from fear of loss of life, limb, mayhem, or of imprisonment; and duress of goods. 10 Am. & Eng. Enc. Law (2d ed.), 321-322; 9 Cyc. 444-445. Duress of imprisonment was available as a defense to a contract, if the imprisonment, or threatened imprisonment, was unlawful. See Clark on Contracts (2d ed.), 242 et seq.; Hammon on Cont. §§ 134-135, p. 190 et seq. An imprisonment which was originally lawful might, by a subsequent abuse of it, become unlawful and constitute duress. 1 Story on Cont. (5th ed.) § 512. An unlawful imprisonment, or threat of unlawful imprisonment, of one’s child constituted duress. Clark on Cont. (2d ed.), 245; 10 Am & Eng. Enc. Law (2d ed.) 330; Southern Express Co. v. Tyson, 48 Ga. 358, 361 . The provisions of our code with reference to duress are broader than the common law. The Civil Code, § 3536, provides: “Duress consists in any illegal imprisonment, or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means amounting to or tending to coerce the will of ■ another, and actually inducing him to do an act contrary to his free will.” Section 3670 declares: “ The free assent of the parties being essential to a valid contract, duress, either of imprisonment, or by threats, or other arts, by which the free will of the party is restrained, and his consent induced, will void the contract. Legal imprisonment, if not used for illegal purposes, is not duress.”' It is probable that the provisions of the sections quoted, so far as they relate to duress of imprisonment, *656 are no broader than the common law; and it may be that an imprisonment for an illegal purpose would be an unlawful imprisonment within the meaning of the common law. See, in this connection, Southern Express Co. v. Tyson, 48 Ga. 358, 361 ; Hunt v. Hunt, 94 Ga. 257 ; Graham v. Marks, 98 Ga. 67 .

Bailey- was lawfully in jail in Colorado under a charge of murder, but it was not lawful to keep him in jail indefinitely without a trial. His detention for any other purpose than a trial at the time and in the manner provided by law would be unlawful. The threat of Devine was to bring about an abuse of the lawful imprisonment of Bailey, in order to cause his mother to give the note sued on. Such an act would, even under the strict common-law rule, constitute duress. We can well understand how a woman, ignorant of the law, a thousand miles away from home, relying upon the supposed knowledge of the law and integrity of the plaintiff as an attorney at law, might have thought that he. was able to carry his threat into execution, and might therefore have been coerced into a promise to pay the sum sued for, to release her son from the threatened detention in jail without trial. Comment upon the grossly reprehensible conduct of the plaintiff, as shown by the answer, is unnecessary, and would perhaps not-be proper, as he has not been heard; but we are clear that the. plea of duress was good, and that the court erred in striking it.

5. We are also unable to discover, from the facts pleaded, any valid consideration for the note. The fee of the attorney had been agreed on, and had either been paid to him. or was1 about to be paid. The consideration, therefore, for the note could hot have been the performance of services in defense of the defendant’s son. Where, then, was the consideration ? The witnesses for the State had been released from jail. The plaintiff and McAliney did not undertake to get the witnesses out of the way; and if they had, the contract would have been void as against public policy. Rhodes v. Neal, 64 Ga. 704 . There was no benefit accruing to the defendant by the payment of the fee due by these witnesses to McAliney. She was wholly a stranger to the contract with him for fees. It can not be said that the promise to bring on the son’s trial was the consideration, because the plaintiff had already been paid to represent, the son, and certainly his employment comprehended the uses *657 of such efforts and agencies as he could properly use to bring about the son’s speedy trial and release from custody. Besides, a promise to release from an unlawful imprisonment which the promisor himself made unlawful would not afford any valid consideration for a contract to pay for such a service. In any view of the facts set up in the defendant’s answer, the plea of no consideration should not have been stricken.

Judgment reversed.

All the Justices concur, except Simmons, G. J, absent.