By the Court.
McDonald, J.delivering the opinion.
The case stated in the bill, is one of overbearing violence on the part of the plaintiff in error’s intestate. He went into the field of defendant (in error,) with three other armed men, and seized a negro man, whom the defendant had owned for more than seven years. He tied him and was about ■carrying him off, when the defendant came up. The plain*598tiff drew his knife, and having a stick in his hand, and. saying he had a revolving pistol in his pocket, swore he would carry said negro off, if complainant did not pay him or secure to him six hundred dollars, which, he alleged, Dr. James W. Cato, defendant’s brother owed to him. The defendant’s bill further states that he owed the plaintiff nothing and never had, that in order to release his negro from the custody of the plaintiff and his associates, and to have his work and services on the crop, he was induced to give his three notes with his son John W. Cato as security for two hundred dollars each; that said notes were without consideration and obtained by threats and violence. The administrator’s answer states that he knows nothing of the consideration of the notes. There is a conflict in the evidence on a point very material to the issue. The defendant’s witnesses testified that intestate seized the negro, and swore he would carry him off, if the defendant did not pay him six hundred dollars that Doctor Cato owed him. The plaintiff’s witnesses, or one of them, testified that the intestate claimed the negro? and swore he would carry him off, if the defendant did not pay him for him. If the latter witness gives the true account? there was no duress; for the intestate was making a recaption of his own property, and after he had seized it, illegally no doubt, because not in fresh pursuit, the parties compromised as stated by that witness.
In this conflict of evidence, the matter was referred to the jury, to determine whether there was duress or not. The charge of the Court to the jury oirthat point is excepted to. The charge is very brief, and does not explain to the jury, what constitutes duress, and it is insisted that there was no duress even in the aspect of the case, most unfavorable to the plaintiff. According to the defendant’s evidence the note was without consideration, for it does not appear that he was, in any manner, liable to the intestate for the money loaned to Dr. Cato.
This case is now in a Court of Equity, which will relieve, *599although the circumstances might not be considered as making out a case of duress in a Court of law. A Court of chancery will look into the matter and ascertain if the notes were executed “ freely and voluntarily, or by compulsion; if by fear or terror though not so as to make it, per dures ,” they ought to be set aside, Atty. Gen. vs. Lothan 2. Vernon 497. This case is referred to in Bacon’s Mr, Duress Jl., where it is said, that “in Equity, if a man enters into a bond by compulsion, through the terror and fear, are not sufficient to make it duress at common law, yet it may be relieved against.” A threat that an annuity would be withheld from a man in reduced circumstances if he did not execute a deed affirmative of a sale by trustees, has been jheld to have the effect of placing him in complete and absolute duress. Oliver et ux, vs. Court et al. 3 Eng. Exch. Rep. 312, 336, 337. In the case of Atlee vs. Backhouse, 3. Meeson and Welsbey 650, Sir James Parke remarks, “ If my goods have been wrongfully Retained, and I pay money simply to obtain them again, that being paid 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.” If it be not a binding agreement, it maybe avoided ; and Baron Parke proceeds to discuss that subject, as applicable to the case before him. That was a case of seizure ■of spirits made by the officers of excise. Upon agreement with the commissioners of excise, the spirits was restored to ■the plaintiffs, who paid the appraised value to the defendant, who was Receiver General of excise. The suit was brought to recover back the money paid under the agree ment, and the Court held it binding, because both parties considered the seizure legal, and the consideration was therefore held to be valid. It was remarked then that if they had known it to be an illegal seizure, there might be a question as to the validity of the agreement. The question in such ■cases is, whether, if the mind of the party had been free to *600act, the agreement •would have been executed. The question ought to have been submitted to the jury, whether the giving of the notes by Cato and his son to Lyons, though they were freely executed, was not speaking the mind of Lyons, and not their own. Peel vs.-16. Vesey 158 It was insisted that the execution of the notes by the son was valid and good as to him. “ The duress of a wife or child would avoid a contract, given under its influence by a parent or child.” Comyn on Cont. 208. Here, the mind of Lyons was operating through Cato upon his son; for certainly, when he called on his son to become his surety, he did so, because he was constrained to it by the conduct of Lyons. There was certainly, in the language of the Court in the case referred to in Meeson 8? Welsbey, a species of duress in this case, if the witnesses for the defendant are to be believed. There must be the concurrence of two minds to form a contract. If one of the parties wills that another shall execute a deed of conveyance or promissory note, and seizes his property without authority, and refuses to release it until he signs such conveyance or note, there is but a single mind operating in such a case.
The testimony was conflicting, but the preponderance was, we think, with the verdict.
Judgment affirmed.