The action was continued nisi, and the opinion of the Court drawn up by

Weston C. J.

A lawful detention or imprisonment of the person, does not constitute duress. The arrest or restraint of the principal defendant was warranted by law ; and it does not appear to have been unreasonably extended. While before the magistrate, some time was taken up in endeavoring to negotiate an adjustment ; and the magistrate might take a reasonable time, to consider what it was proper for him to do. But if a man executes *150a bond for fear of imprisonment, that is, of unlawful imprisonment, be may avoid it on the ground of duress.

It appears from the testimony of the magistrate, that the defendant offered to give bond for his appearance at court, with sureties, who were in his judgment adequate, but he doubted whether he could take a bond, and upon the officer’s saying, that he could not, but that the defendant must settle or go to gaol, the justice, supposing he could not take a bond, took the defendant aside, and told him he had better settle, than go to gaol. This was manifestly adopting the views of the officer, and calculated to produce an apprehension in his mind, that if he did not settle, he must be sent to gaol; although he was ready to give bond, with adequate sureties, for his appearance at court.

Such an imprisonment would have been unlawful. He had a right to be liberated, upon giving such a bond. And if he did not execute the bond in suit freely, but through fear of unlawful commitment, he acted under the influence of such moral compulsion, as constitutes duress. ¥/e think the jury should have been so instructed; and that it may be considered as embraced in some of the requests, made by the defendant’s counsel.

There is much reason to believe from the whole testimony, that the principal defendant acted freely, notwithstanding the misapprehension of the justice. The jury however have not passed upon the question, which is to be considered as having been legally at issue before them, whether he did act freely, or whether under the fear of unlawful imprisonment. The exceptions are therefore sustained, and a new trial granted ; that it may be distinctly presented to a jury, for their determination.