the petition was filed, from the prisoner to the creditors named in the schedule(s), or for which they shall have given credit to the prisoner before the petition, and which were not then payable; and as to the claims of all other persons not known (q), to such prisoner at the time of adjudication, who may be holders of negociable securities mentioned in the schedule (u). The order of adjudication need not specify the debts, or name the creditors (x). By the 61st section of the act it is enacted, that, after any person shall have become entitled to the benefit of the act, no fieri facias or elegit shall issue on any judgment obtained against such prisoner for any money with respect to which such person shall have so become entitled, nor in any action upon any new contract or security for payment thereof (y); except upon the judgment entered up against such prisoner according to the act; and that if any suit or action shall be brought, or any scire facias be issued against any such person, his heirs, &c., for any such money, or upon any new contract or security for payment thereof, or upon any judgment, statute, or recognizance for the same, except as aforesaid; such person, his heirs, &c., may plead generally, that such person was duly discharged according to the act, by the order of adjudication made in that behalf, and that such order remains in force, without pleading any other matter specially ; whereto the plaintiff may reply generally, and deny the matters pleaded, or reply any other matter which may show the defendant not to be entitled to the benefit of the act, or that such person was not duly discharged, in the same manner as the plaintiff might have replied, in case the defendant had pleaded the act, and a discharge by virtue thereof, specially. The pleadings and evidence upon this subject, will be fully noticed in a subsequent portion of the work. The act does not extend to a claim for mere unliquidated (s) See post, 165. See Lewis v. Mason, 4 C. & P. 322. If the prisoner once knew who was the holder, it is no excuse that he afterwards forgot the holder's name, &c., id. (u) Sect. 46. (x) Sect. 54. (y) See Sweenie v. Sharp, 4 Bing. 37; 12 Moore, 163, S. C., decided on the former Insolvent act, 1 G. 4, c. 119, s. 26, 28. This provision in the 61st sect. of the 7 G. 4, would seem to render inoperative any new promise by the insolvent to pay his former debts. But at common law such promise, or a bill or note for the old debt, is binding; see Best v. Barber, 3 Dougl. 188. As to a bankrupt's promise to pay a debt, from which he was released by his certificate, see ante, 40. damages for a wrong done. The discharge therefore affords no protection against an action of trespass for mesne profits, even though they accrued before the discharge (z); and an insolvent is not discharged from damages unascertained at the time of his discharge, although the action in which they are sought to be recovered was commenced, and judgment by default suffered, prior to his first imprisonment (a). And it seems that the obligor in a bastardy bond, conditioned generally to indemnify a parish against the expences of maintaining the child, is liable for expenses incurred in respect of the child, subsequently to such obligor's discharge under the Insolvent Act (b). The effect of the adjudication is to relieve the insolvent, only to the extent of the debts described in the schedule. The insolvent is not discharged as to a debt he omits to notice therein (c); unless such omission be at the express request of the creditor (d); or with his privity, and without fraud (e). But it is sufficient, as we have already seen, that the description of the debt in the schedule, be such as to clear the prisoner of any intention to deceive, and of culpable negligence; so that the creditor could not be misled, and his attention ought to have been attracted, by such description; although not strictly and literally correct (ƒ). The discharge shall extend to monies payable by way of annuity, or otherwise, at any time, upon any security of any nature; the creditor to have a dividend upon the value of his claim; and the Court to ascertain such value, but the creditor not to be prejudiced as to any security he may have, except as to prisoner's discharge (g). A judgment is to be entered up in one of the courts at Westminster, against the prisoner, for the amount of the debts, stated in the schedule, and left unpaid, and against which he shall have been discharged: and upon such judgment the future property of the insolvent may, by order of the Court, and subject to its (z) Lloyd v. Peell, 3 B. & Ald. 407. This case was not decided on 7 G. 4; but equally applies thereto. (a) Wilmer v. White, 6 Bing. 291. This was an action of replevin against the insolvent. (b) Davies v. Arnott, 3 Bing. 154. (c) Ante, 163, 164; Taylor v. Buchanan,4 B. & C. 419; 6 D. & R.491, S. C.; Baker v. Sydee, 7 Taunt. 179; Pugh v. Hookham, 5 C. & P. 376. (e) Howard v. Bartolozzi, 1 N. & M. 69. (f) Ante, 163; Forman v. Drew, 4 B. & C. 15; 6 D. & R. 75, S. C.; Nias v. Nicholson, 1 R. & M. 322; 2 C. & P. 120, S. C.; 4 B. & C.214. (g) Sect. 51, (7 G. 4, c. 57). violence; and this whether the duress proceeds from the person to whom the promise or obligation is made, or his agent (†). The old books (s) abound with decisions relative to duress; but as a defence of this nature has now become of rare occurrence, it will be sufficient to notice the leading rules on the subject. Duress, (durities), may either consist of actual violence, or a threat thereof (t). ACTUAL VIOLENCE.-Actual imprisonment in a common prison, or elsewhere, constitutes duress to avoid an agreement, if the confinement be unlawful; or if, being lawful, undue and illegal force be used, or the party is made to endure unnecessary and unlawful privation, as want of food, &c.; and to obtain his liberty, or avoid such illegal hardship or privation, is induced to make the contract, &c. (u). Executio juris non habet injuriam. An imprisonment is not deemed sufficient to avoid an agreement, obtained through the medium thereof, if the party was in proper custody, under the regular process of a Court of competent jurisdiction (x). After judgment in an action, the defendant, having no good cause of action, caused the plaintiff to be arrested and detained in prison, threatening him that if he would not seal a release to him, he should lie there and rot; and thereupon he sealed the release, and was discharged. The Chief Justice (Bridgman) held, at nisi prius, that the release was good, "because he was in custody in the course of law by the king's writ, when he signed it (y).” It would, perhaps, be considered that an agreement made whilst the party was in confinement in a civil action, regular in form, upon an arrest for a debt without probable cause, is not inoperative on the ground of duress. However, a bond given without consideration, under the alarm and restraint of an actual imprisonment upon a justice's warrant for stealing goods, upon the promise of the accuser to discharge 1 Rol. Ab. 688. See Bac. Ab. & Vin. Ab., tit. Duress; Com. Dig., Pleader (2 W. 19). (t) 2 East, 482, 483; 1 Bla. C. 136, 137; 1 Pothier, by Evans, 15; French Civil Code, Book 3, tit. 3, art. 1111. (u) Id.; 2 Inst. 482; Bul. N. P. 172; 1 Bla. C. 136, 137; Williams v. Brown, 3 B. & P. 68; The King v. Southerton, 6 East, 140; Pole v. Harrobin, 9 East, 417, note. (x) Id.; Stepney v. Lloyd, Cro. Eliz. 647; 4 Inst. 47; 1 Rol. Ab. 687. (y) Anon. 1 Lev. 68; sed vide Bul. N. P. 172. Qy. as to relief in equity, see Cossart v. Sothon, 2 Vern. 497; Prec. Chan. 266. the prisoner, was held not to be binding, on the ground of duress : it appearing that the charge was utterly false and vexatious (≈). Duress per minas is where the party enters into a contract; 1st, for fear of loss of life; 2ndly, of loss of member; 3rdly, of mayhem; 4thly, of imprisonment (a). But it seems that a contract obtained by menace of a mere battery, or trespass of lands, or goods (b), is binding (c); the law considering that such a threat is not of a nature to overcome a firm and prudent man, because sufficient and adequate redress may be obtained, if either of such injuries be inflicted. Whereas, for serious and actual personal violence, no damages can be an adequate compensation; and therefore, even a man of ordinary firmness may be unable to withstand the threat, and immediate danger, of such personal mischief. It is also laid down in the old books (d), that a threat of burning a house is not a sufficient duress to avoid a bond, &c., given under the influence of such menace. But it may perhaps be doubted whether, at the present day, the threat to commit so serious an injury, would not be considered a sufficient duress; for the threatened act is not only a capital offence, but naturally involves and endangers personal safety. BY WHOM SUFFERED.-The general rule is that the duress must be suffered by the party who enters into the contract; and that if a stranger, not under its influence, enter into an agreement to obviate the duress which another undergoes, the agreement is good (e). But it seems that duress to the wife or child would avoid a contract, given under its influence, by the husband or parent (f). The French law is to this effect: La violence est une cause de nullité du contrat, non seulement lorsqu'elle a été exercée sur la partie contractante, mais encore lorsqu'elle l'a été sur son époux, ou sur son épouse, sur ses descendants ou ses ascendants (g). Where a bond was given by a third person, on the (z) Anon. Aleyn. R. 92. Semble, however, that the bond was void on another ground, namely, that it was given upon an agreement to stifle a prosecution for a felony. (a) 2 Inst. 483; 2 Rol. Ab. 124; Bac. Ab., Duress (A). (b) Sumner v. Ferryman, 11 Mod. 201; Astley v. Reynolds, Stra. 917; Bul. N. P. 173; sed vide 1 Rol. Ab.. 687, pl. 6. Or to institute a prosecu- (c) Id., Bac. Ab., Duress. (e) Bac. Ab., Duress (B). (g) French Civil Code, Book 3, tit. 3, art. 1113. discharge of one who had been unlawfully impressed, conditioned for the man's being returned into custody, or in default thereof, for the payment of 507., the bond was held void, for the impressing of the man was unlawful; and besides, the officer had no power to commute the services of one who was impressed, or to discharge him in consideration of money to be paid (h). Clearly, the contract would be available in favour of the party suffering the duress, and against the party inflicting the same. By the French law, "un contrat ne peut plus être attaqué pour cause de violence, si, depuis que la violence a cessé, ce contrat a été approuveé, soit expressément, soit tacitement (i);” a principle which it seems also applies to our law. PLEADING IT.-Duress may now be proved under the general issue in assumpsit, or debt upon simple contract; but should be specially pleaded in debt on bond, or other specialty (k). SECTION II. Of Contracts with Persons competent to Contract. 1st. PRINCIPAL AND AGENT, OR MASTER AND SERVANT ( 1 ). 1. Of the Different Descriptions of Agents. 2. Of their Appointment, and the Revocation of their Power. 3. The Extent of their Authority, and the Liability of the Principal. 4. Of the Principal's Right of Action upon the Contract. 5. When the Agent is Personally Liable on the Contract. 6. When he may Sue Thereon. 1. The Relation of Principal and Agent generally exists, either in the case of a mercantile agent, or in case of a domestic servant. An agent appointed for commercial purposes, is either a factor or a broker. A factor is employed either by a foreign or home (h) Pole v. Harrobin, 9 East, 417, note. (i) French Civil Code, Book 3, tit. 3, art. 1115. (k) Com. Dig., Pleader (2 W 19); 1 Chitty Pl. 5th ed. 511, 519. |