The opinion of the Court was delivered by
Weston J.The deed, under which the plaintiff holds the premises in question, is attempted to be avoided on the ground? that it was obtained by duress, by threats, or by imprisonment, or upon an illegal consideration, or because not executed freely and voluntarily.
It does not appear from the evidence to have been extorted by threats of any kind. To constitute duress by imprisonment, *330the original restraint, or detention of the person, must have been unlawful, or there must have been an abuse of legal process. At the time the deed was executed, the defendant was under arrest, and in order to ascertain the character of the transaction, it became important to determine, first, whether the arrest or imprisonment was legal in point of form, and, secondly, whether it had a lawful foundation, or whether it was got up to oppress the defendant, and to aid the designs of the plaintiff upon his property. In this view, the complaint and warrant were properly admissible in evidence. They were essential to show the lawfulness of .the arrest. Without them, duress by imprisonment would very clearly have appeared, which the plaintiff had an undoubted right to repel, by showing that the requirements of law had not been violated in the prosecution, to which he had lent his countenance and support. The facts upon which the complaint and warrant were founded, were examined, and we are satisfied properly, to ascertain whether there was any thing collusive or colorable in the proceedings. The plaintiff was warranted in interposing for the protection of his sister, who had just cause of complaint. As her kinsman, it was lawful for him to aid her in the pursuit of her legal rights, without being liable to the charge of maintenance, or of officiously meddling in an affair, which did not concern him.
The acts and declarations of the constable were not legal.evidence against the plaintiff, unless it had appeared that they were adopted by him, or done or said in pursuance of a common object. Of this, there is no evidence whatever. The plaintiff was a relative of the constable; but he is not thereby implicated or made responsible for his acts. It might render it more probable that they would be engaged in a common object, but there must be other evidence than the relationship to render the one accountable for the acts and declarations of the other. The testimony rejected had a tendency to prove that the officer conducted harshly, and had it appeared that the plaintiff had also conducted harshly or oppressively, there would have been such evidence of a common object as might have rendered this testimony admissible. But there is no proof of misconduct on the part of the plaintiff, nor was it proposed to *331show any privity between him and the constable, or any assent to what was said or done by him. In Bridge v. Eggleston, 14 Mass. 245, where the question to be determined was, whether a conveyance of real estate was or was not fraudulent, the acts and declarations of the grantor, prior to the date of the deed, were received to show fraud in him, but expressly upon the ground that there was other evidence tending to show fraud also in the grantee. And it was distinctly decided by the Court, that without the latter, the former would be entirely unavailing.
In Burdett v. Colman, 14 East, 163, there was no objection to the testimony in regard to the conduct and cries of the mob. Sir Francis had declared his intention to yield only to superi- or force. The mob had interposed in his favour. There was no evidence that he expected or desired their assistance ; but he resisted the peaceful execution of the warrant, with which the sergeant at arms was charged; and they manifested a disposition to aid him in the stand he took. Under this aspect of things, the question was, whether the sergeant at arms had exceeded his authority in calling in the aid of the military. And whether there was any privity between Sir Francis and the mob or not, their conduct fully justified a resort to an armed force, as a measure of precaution. In Sherwood v. Marwick, 5 Greenl. 295, there was evidence that the defendant was concerned in the procurement of the false register, of which the other party concerned, Sutton, had made a fraudulent use, in his transactions with the plaintiff', and this was such evidence of privity between them, as might properly go to the jury, in determining whether the defendant was implicated or not, by the acts and doings of Sutton.
But it is contended that it was not legally competent for the complainant, or the plaintiff-, acting in her behalf, to withdraw her prosecution, and to waive further proceedings thereon. —■ When criminal process has been instituted to bring an offender to justice, public policy requires that it should not be terminated by any understanding between the complainant and the accused, but that it should be pursued until withdrawn by the proper authority, representing the State. But the process re*332sorted to in the case before us, was of a peculiar character. Although in form in the name and behalf, of the State, it has the effect of a civil preventive remedy, for the protection of an individual. It is based on his apprehension of danger, which must be shown, however, to have had a reasonable foundation. Now, if before the magistrate, after a hearing, has adjudged sureties of the peace to be necessary, or has required them at the hands of the accused, he has succeeded in quieting and allaying the apprehensions of the complainant, and friendly relations being established between them, the complainant intimates his wish to withdraw a process, afforded expressly for his benefit and the magistrate permits it, we are not aware that the dignity, honour or policy of the law is impaired by such a course. The process has done its office. The benign purpose of the law has been answered. And in accordance with this view of the subject, the prosecuting officer of the government never does in practice press the accused further, when advised that the complainant is satisfied.
In the case before us, the complainant perceived that by the adjustment, there would no longer arise any conflict of claims or rights between them, and being satisfied that she should not be further molested, she acceded to th e arrangement proposed ; and we are not prepared to pronounce this course of proceeding unlawful.
But if it was, an executed contract cannot upon this ground be disturbed. The law does not interpose for either party, in transactions founded upon an illegal consideration. If such contract be executory, the law will not lend its aid to enforce it, or if executed, to defeat or avoid it. This principle was fully considered in the case of The inhabitants of Worcester v. Eaton, 11 Mass. 368, and it is in point to show that if the adjustment of the prosecution had been illegal, the deed in question could not be avoided.
It is however insisted that the deed is void, because not given freely and voluntarily, and it is urged, that it cannot be so regarded, if the giving up of the prosecution operated in any degree upon the mind of the grantor. In point of fact the graiit- or took time to deliberate, asked and received advice, rejected *333some propositions, and finally acceded to the terms upon which the business was concluded. These facts afford no evidence that his judgment, or the freedom of his will, was disturbed by the absorbing apprehension of danger. In all human conduct, the preponderating motive determines the will, but if not operated upon by unlawful acts on the part of others, which may constitute a moral compulsion, the mind may be said to act freely. An imprisoned debtor conveys land to his creditor to procure his enlargement; in the eye of the law he acts freely, there being in the case no unlawful restraint or imprisonment. In the case of Watkins v. Baird, 6 Mass. 506, cited for the defendant, it is stated by Parsons C. J. that although the imprisonment be lawful, yet unless the deed be made freely and voluntarily, it may be avoided by duress. Under what circumstances a deed so given might be held not to have been made freely and voluntarily, he does not state. If the imprisonment be lawful in form, but founded upon an abuse of process, it constitutes duress, as was decided in that case. Such imprisonment is held to be unlawful. But if it be lawful, an instrument executed to obtain enlargement cannot be avoided on the ground of duress. And in the case last cited, the Chief Justice says, if a man “ supposing that he has a cause of action against an- “ other, by lawful process cause him to be arrested and impris- “ oned, and the defendant voluntarily execute a deed for his “ deliverance, he cannot avoid such deed by duress of imprison- “ ment, although in fact the plaintiff had no cause of action.” A deed so made is made voluntarily, in his sense of the term, although it may have been founded in misapprehension and mistake. We are all of opinion, that none of the objections taken, by the counsel for the defendant, can be sustained.
Judgment on the verdict.