No question is raised in this case except under the second count in the writ, which is for money paid under an alleged duress, arising from threats of a criminal prosecution and personal injury. The first instruction excepted to is that a threat of prosecution does not constitute duress. In this we see no error. Bacon, in his Abridgment, Vol. 2, p. 156, referring to Lord Coke, says: “ That for menaces, in four instances, a man may avoid his own act. 1. For fear of loss of life; 2. Of loss of member; 8. Of mayhem ; 4. Of imprisonment.” A prosecution cannot come under either of the items of personal violence; unless, therefore, it implies imprisonment it cannot constitute duress. All the cases to which our attention has been directed, or which after considerable research we have been able to find, hold threats of prosecution sufficient to avoid an act only as they are connected with threats of imprisonment, either illegal in its beginning, or which by abuse becomes illegal. There- must be imprisonment, or a fear of it, sufficient to overcome the will of a man of ordinary firmness and constancy. Coke says it is the fear of imprisonment “ that sutficeth to avoid a bond or a deed.” In Whitefield v. Long*230fellow, 13 Maine, 146, and Eddy v. Herrin, 17 Maine, 338, it is held that there must be an unlawful imprisonment or a reasonable fear of it. In both of these cases a warrant for the arrest of the threatened party had been procured. To the same effect is 2 Kent’s Com. 453 ; Story’s Pl. 249, 250; 2 Greenleaf’s Ev. § 301 and note; 1 Parsons on Cont. 393, 394.
The two cases mainly- relied upon in argument are clearly distinguishable from this. In Foshay v. Ferguson, 5 Hill, 154, the threat relied upon is that of arrest upon a real or pretended warrant and not simply of prosecution. In Taylor v. Jacques, 106 Mass. 291, the threat was not only of a prosecution, but of an immediate imprisonment, and on a warrant alleged to have been already procured. In this last case the jury were instructed, substantially, that duress must be by .unlawful imprisonment, or by threats of imprisonment, inducing a reasonably grounded fear of restraint of liberty. This instruction was held to be substantially correct, and the exceptions on this point were sustained only on the ground that the jury were subsequently told that an admission of indebtedness, on the part of the defendant, to the amount claimed, or to part of that amount, and a liability to indemnify the plaintiffs for damages he had caused them, for the balance, would repel the inference of duress, although indicated by the other facts in the case. This case cannot properly be cited as authority to show that anything short of illegal imprisonment, or a well-grounded fear of it, will constitute duress.
It should be observed that in the case at bar no instructions were given and none asked as to the effect of threats of imprisonment. If the case required such the counsel should have asked them, and in the absence of such request exceptions will not be sustained, unless the rule of law given is erroneous. Some of the testimony in the case may have a tendency to prove threats of imprisonment, but none connected with a prosecution, or growing out of a warrant already obtained or even threatened. There is in the case no allusion to any precept issued or to be issued. A threat of prosecution simply, before the commencement of any le*231gal proceedings, does not necessarily include an arrest. It is no more than an assertion that the proper steps will be taken to institute a legal process, which may or may not result in an arrest of the person. And whether the process is to be initiated before a magistrate or the grand jury, the law so shields it by the oath of the complainant and witnesses, as well as the official oaths and responsibilities of the magistrate and jurors, that the danger of imprisonment from such a threat is too remote and contingent to overcome the will of an innocent person of common firmness.
Another answer to this exception is that the instruction was not material. If from the testimony it can, by any possibility, he inferred that there were any threats of criminal prosecution, it does not appear that the plaintiff's will was overcome by them, but quite the contrary. According to his own testimony, if his will w'as overcome by anything other than a submission to a claim of an amount due, it was by the danger of personal injury, or rather the effect of the violence manifested upon his wife. It is true an act done to relieve the wife from duress may he avoided; hut this case is not put upon that ground. All the duress complained of is upon the plaintiff himself.
The second instruction complained of, that of threats of personal injury, seems to he abandoned in the argument. But if not, it is in accordance with all the authorities. It is true that the later authorities have somewhat modified the older, requiring a less degree of personal injury than formerly to justify a man in yielding for the time, still all hold that there must be an apparent danger of serious bodily harm. 1 Parsons on Cont. 398 ; 2 Greenleaf on Ev. § 301 and note. Exceptions overruled.
Amr,ETON, C. J.; CuttiNg, DickeRSON, VirgiN, and Peters, JJ., concurred.