By and on whom the duress must be imposed. Duress on obtain them again, that being under a species of duress or constraint, may be recovered back; but if, while my goods are in possession of another person, I make a binding agreement to pay a certain sum of money, and to receive them back, that cannot be avoided on the ground of duress " (a). In the above case (b), the Commissioners of Excise had seized goods of the plaintiff for the purpose of condemnation, and the plaintiff, in consideration of a return of the goods and the relinquishment of the proceedings for condemnation, paid the appraised value of the goods; it was held that the money was paid under a valid agreement made upon good consideration, and the duress of the goods formed no ground for avoiding the agreement. The duress must be the act of the party obtaining the contract, or done with his knowledge, and taken advantage of by him, for the purpose of obtaining the agreement (c). A contract cannot be avoided on the ground that it was third party. obtained by duress imposed on a third party. An action was brought on a bond conditioned that a third party should pay a sum of money, to which the defendant pleaded that the latter was illegally imprisoned at the instance of the plaintiff, and the defendant entered into the bond as his surety for the debt in order to release him from imprisonment; it was held that the plea was not any plea for the surety, although it had been a good plea for the principal, "for none shall avoid his own bond for the imprisonment or danger of any other than of himself only" (d). It is laid down in an old case that a person may avoid his deed if obtained by duress imposed on his father, or his wife, but not if obtained by duress imposed on his master or a stranger (e). Contract by agent in A contract may be avoided on the ground of duress, where the contract is made by an agent of the party suffering the duress in order to remove the duress from his principal. his princi. The plaintiff had been confined in a private lunatic asylum, duced by duress on pal. (a) And see per Coleridge, J., Ash- (d) Huscombe v. Standing, Cro. Jac. 187; and see Pole v. Harrobin, 9 East, 416 (a); Smith v. Monteith, 13 M. & W. 427. (e) 1 Rolle, Abr. 687; and see Code Civil § 1113. and an inquisition of lunacy had been instituted against her by the defendants, at which an arrangement was entered into and signed by the plaintiff's counsel, that the defendants should withdraw from the inquisition, and that the plaintiff should be released from restraint upon giving up certain deeds to the defendants; the plaintiff afterwards repudiated the arrangement as having been induced by duress, and brought the action for the recovery of the deeds; the Court decided for the plaintiff, saying:-" If her counsel acted for her, believing her of sound mind, from the same fear of inconvenience and disease as likely to arise from confinement which affected the mind of their principal, their proceeding ought to be considered as enforced by the same duress" (a). of agree duress. An agreement induced by duress, like an agreement in- Avoidance duced by fraud, is not absolutely void, but voidable only at ment inthe election of the party intimidated (b). If a person having duced by been constrained by duress to make a contract afterwards voluntarily acts upon it, he thereby affirms its validity and precludes himself from afterwards avoiding it (c). In an action upon a contract, the defence that it was procured by duress must be specially pleaded (d). against Courts of Equity exercise a jurisdiction to set aside con- Relief in tracts on the ground of duress. They will also set aside equity contracts in some cases on the ground that they were ob- duress. tained by threats, or undue influence, or oppression, though not amounting to legal duress; and in some cases they will refuse to enforce such contracts by specific performance, though they will not set them aside, and will leave the parties to their legal remedies (e). (a) Cumming v. Ince, 11 Q. B. 112. (b) 2 Inst. 482; and see "Fraud," ante, p. 193. (c) Ormes v. Beadel, 2 De G. F. & J. 333; 30 L. J. C. 1. (d) Whelpdale's case, 5 Co. Rep. P 210 CHAPTER II. parties. Number of EVERY contract necessarily involves two parties, one bound to perform the contract, and the other entitled to have it performed. For example, in order to constitute a promissory note there must be both a promiser and a promisee. A note in which the maker promises to pay to himself, or to his own order, is not a promissory note, and contains no binding engagement. An instrument so drawn is incomplete, being in the nature of a conditional engagement, in case the maker should afterwards indorse the note, to pay it to the person to whom by such indorsement he should direct it to be paid; if indorsed specially, it imports a promise to pay to the person to whom it is indorsed or his order; if the maker indorses it in blank and circulates it, it becomes in effect payable to the bearer (a). So, a promissory note made payable nine months after date, "to the secretary for the time being" of a society, was (a) Brown v. De Winton, 6 C. B. 336. held invalid, because it did not show a certain payee (a); and for the same reason a bill of exchange drawn payable six months after date, to the order of " the treasurer for the time being" of an institution, was held invalid (6); but a promissory note made payable "to the trustees of the N. chapel or their treasurer for the time being" was held valid; the trustees being taken to be the payees, and the treasurer only their agent to receive payment (c). An instrument in the form of a bill of exchange and accepted, but without the name of either a drawer or payee, does not constitute a binding contract, though capable of being completed by adding the names of such parties (). An insurance office having two departments, one for insurance and the other for annuities, the latter department effected a policy of insurance with the former, upon the life of a person to whom a loan had been made, and who had covenanted to pay the premiums for insuring his life; it was held that the policy so made was a nullity, because made by the company with themselves, and that the debtor could not be charged with the premiums (e). So, a covenant made by a person with himself and others jointly, to pay money on their joint account, was held void (ƒ). Where a shipowner carries his own goods in his own ship, there is no "freight" properly so called, because there can be no contract made by the shipowner with himself in respect of the carriage. Hence, in such a case, the underwriters on the ship, upon abandonment of the ship as lost, having brought the goods to their destination, it was held that they had no claim upon the owner for freight in respect of the carriage of the goods to the place where the ship was lost, notwithstanding the general rule that the abandonees of a ship are entitled to all the freight earned by it at the time of abandonment (g). So, the mortgagee of a ship with (a) Cowie v. Stirling, 6 E. & B. 333; 25 L. J. Q. B. 335. (b) Yates v. Nash, 8 C. B. N. S. 581; 29 L. J. C. P. 306. (c) Holmes v. Jaques, L. Rep. 1 Q. B. 376; 35 L. J. Q. B. 130. (d) M'Call v. Taylor, 19 C. B. N. S. 301; 31 L. J. C. P. 365; and see. Stoessiger v. South-Eastern Ry. Co., (f) Faulkner v. Lowe, 2 Ex. 595. (g) Miller v. Woodfall, 8 E. & B. 493; 27 L. J. Q. B. 120. Joint con tracts. the freight, on taking possession of the ship, cannot claim freight in respect of a cargo shipped by the owner, because the owner cannot contract with himself (a). Several persons may join in a contract on the one part or on the other; that is to say, in respect of the same debt or liability more persons than one may be joined in the character of creditor or promisee, or more persons than one in the character of debtor or promiser, or more persons than one in both characters. In such cases the persons jointly becoming party to the contract, though they may have several interests relatively to one another, are considered as united in interest relatively to the other party to the contract. Contracts of this kind are called joint contracts or joint debts; and the persons composing the respective parties thereto are called joint creditors or joint promisees, and joint debtors or joint promisers. In some cases, where several persons are associated jointly to fill an office, or authorized jointly to conduct some business, they are all required to join in contracting, and less than all cannot validly contract. Thus, where two persons were appointed to fill the office of clerk to trustees of a turnpike road, it was held that they must both join in executing a contract on the part of the trustees; Tindal, C.J., said :-" How are we to say that if the trustees have appointed two clerks, perhaps for the benefit of having their united judgment, the two are not to be parties to a contract which is to bind the trustees? it is like the case where two execute the office of sheriff or bailiff” (b). The provisional committee of a railway company appointed eight persons as a managing committee, with authority to carry out the scheme, but without provision that any number less than the whole might act, and six of them gave an order to the plaintiff for certain work; it was held that the defendant, a member of the provisional committee, was not bound by the order so given (c). The peculiar effects of joint contracts may be considered: 1. Where the contract is joint on the part of the promiser (a) See Gumm v. Tyrie, 4 B. & S. 680; 33 L. J. Q. B. 97; 34 ib. 124. (b) Bell v. Nixon, 9 Bing. 393. (c) Brown v. Andrew, 18 L. J. Q. B. 153; and see Guthrie v. Armstrong, 5 B. & Ald. 628. |