This case was rightly disposed of at the circuit. There was really nothing to submit to the jury on the question whether the defendant was compelled to sign the note in suit by fear or compulsion of the payee, which was the only question that the .circuit judge was asked to submit to the jury.
The defendant was not under arrest or imprisonment— was at his placó of residence in Auburn, in this State, where he clearly had committed no criminal offense for which he could be arrested or imprisoned. At most, he had made, as was alleged, some fraudulent representations in respect to the value of some land upon which he had a mortgage, which he had sold to the payee of the note on which the action was brought. This sale, and the representations which induced it, were made in the State of Illinois. If the defendant had made the false representations alleged, he was liable in a civil action, in this State, or in Illinois, if he went into that State voluntarily, to be arrested for the fraud; but in neither State was there any ground for his arrest in a criminal action. He could not have been taken to Illinois in any criminal proceeding for such fraud. But the fact of the fraud had been discussed in letters between the defendant and his friend, by the name of Hall, living in Illinois. He knew *83of the charge made by the payees, Spafford & Penfield, and he had agreed or proposed to settle their claim, before the witness Penfield came to Auburn, and was told by him when he came to see him, that he “had come to arrange the Jackson matter, in accordance with his proposition, mainly.” He had thus, in his letter to Mr. Hall, his friend, recognized the justice of the claim made against him. He was not, therefore, surprised at the visit of Pen-field, or the claim. He could not have been induced, upon any just ground of fear of arrest or imprisonment, to sign said note. But a threat to arrest him on such charge would not constitute duress. The claim was not an unfounded one. It is not such menace as will avoid an act, if the party is only menaced by a lawful imprisonment. In order to avoid an act on the ground of menace of arrest or imprisonment, it must appear that the menace was of an unlawful imprisonment, and that the party was put in fear of such imprisonment, and was induced by such fear to do the act in question. (Alexander v. Pierce, 10 N. Hamp. 498. Eddy v. Harris, 17 Maine, 340. Story on Cont. 400.)
The note is dated January 12, 1866, and is payable in one year from date. In the postcript to the respondent’s letter to his friend Hall, at Rockford, 111., dated Dec. 16, 1865, he wrote: “ My proposition is to pay up the judgment against Jackson, or that portion of it which remains unpaid, which is about $1000, by giving my note payable in one year with interest.”
When Penfield, one of the payees, more than a month afterwards, came to Auburn to accept and consummate this proposed arrangement, and take the note they offered, it is preposterous to say that such note was procured by duress and fear. It was, on the contrary, given without complaint or fear, and in pursuance of a moral obligation, though perhaps unwillingly.
*84[Monroe General Term, December 6, 1869.A new trial should be denied, and judgment ordered on the verdict.
Judgment accordingly.
E. D. Smith, Johnson and J. C. Smith, Justices.]