21 Mich. 483; Byne v. Glem, 41 Mich. 112; Harmony v. Bingham, 12 N. Y. 108 (64 Am. Dec. 535); Stillman v. United States, 101 U. S. 465; Brown v. Pierce, 74 U. S. (7 Wall.), 215; Baker v. Morton, 79 U. S. (12 Wall.), 150; King v. Williams, 65 Iowa, 167.

For respondent there was an oral argument by Messrs. D. R. N. Blackburn and J. N. Duncan, with a brief to this effect:

The threats claimed are insufficient to show duress: Wright v. Remington, 41 N. J. Law, 48 (32 Am. Rep. 186); Buck v. Axt, 85 Ind. 514; Miller v. Miller, 68 Penn. St. 492; Bouldin v. Reynold, 58 Ind. 491; Adam v. Stringer, 78 Ind. 175; Bailey v. Shannon, 26 Ark. 280; Wilkerson v. Hood, 65 Mo. App. 491.

MR. JUSTICE MOORE, after stating the facts, delivered the opinion of the court.

The evidence shows that the plaintiff and the defendant Kester were married in 1876, and that about four or five months prior to the execution of the notes sued on she disobeyed his commands by attending church, whereupon he said to her, as she testifies, that he would cut her throat and take her heart out. The difficulty thus occasioned finally resulted in an agreement for their separation. At that time Kester owned a farm near Lebanon, Or., which he and his wife conveyed to the defendant Denney, and she received on account thereof the sum of $1,000 and the note in question as the share of her husband's property to which she was entitled, whereupon she immediately left him, and went to Albany, Or., to live with her father. But she and her husband, having become reconciled, subscribed their names to the following memorandum: "Albany, Or., November 24, 1892. This is to certify that we, the undersigned, do agree to come together with the understanding that we pay $1,500 each on lands, half to be deeded to James Kester and half to Emma

S. Kester. Emma S. Kester further agrees that the five hundred dollar note she holds against her husband, James Kester, shall be spent in stock and farming implements, and held as equal property, and, if there should be any money to loan, half shall be loaned for James Kester and half for Emma S. Kester. Emma S. Kester. James Kester." They thereupon resumed their marital relations, and in pursuance of said agreement purchased a farm near Jefferson, Or., she paying on account of her part thereof the sum of $1,535, and he on account of his part the sum of $1,065, reserving, as he testifies, by a modification of the agreement, the sum of $435 for living expenses and to build a house on the premises. Kester, having taken to the farm so purchased nine horses and colts, two sets of harness, one wagon, one cow, a binder, a fanning mill, and a harrow, which he valued at the sum of $609.50, and, claiming that under the agreement the property so placed upon the farm amounted to a satisfaction of the note, requested the plaintiff to remove Denney's signature therefrom; but she declined to comply therewith, and testifies concerning his threat. which, she claims, superinduced the mutilation of the note, as follows: "And then later on, in the morning, when I came to Albany,—just when I and my son were starting,-he said to me in a very commanding tone, 'You see that you take that name off of that note.' I saw by the tone of his voice that his violent temper was aroused, and I knew I dared not return home without taking that name off, by his looks and also by past experience; and he also said to me, 'If you ever attempt to collect that note, or any part of it, I will heap coals of fire on your head as long as you live.'" She further testifies that after she had taken Denney's signature from the note Kester said to her that if she did not give up the entire note he would leave her, saying several times that he would run a dagger through her; since which she has not been in his presence. It appears from the testimony that plaintiff removed Denney's signature from

the note in the spring of 1893, and that her husband lived with and did not threaten to desert her until about January, 1898, when she claims he said he would run a dagger through her. It also appears that Kester, having failed to pay the installments of the purchase price of his part of the farm as he had agreed, reconveyed the premises to the person from whom he secured the title, sold what personal property he possessed, and went to live with Denney. The complaint is predicated in part upon the assumption that the plaintiff, superinduced by the defendant's threat to abandon her, was thereby compelled, against her will, to mutilate the note; in consequence of which her act in this respect should be avoided.

I. It has been held that the threats of a husband to desert his wife unless she complied with his demands, accompanied by general abusive treatment, constitute such duress as will, in a suit for that purpose, avoid her contract when entered into under a reasonable apprehension that the menaces will be carried into effect; provided, however, that the party to the contract be aware of such threats at the time of entering into the agreement: Tapley v. Tapley, 10 Minn. 448 (88 Am. Dec. 76); Kocourek v. Marak, 54 Tex. 401 (38 Am. Rep. 623); Line v. Blizzard, 70 Ind. 23. Whatever the rule may be, however, in this respect, it can have no application herein, for the testimony conclusively shows that Kester's threat to abandon his wife was not made until more than four years after she tore Denney's signature off the note, and hence it cannot be said that her act was superinduced by a reasonable apprehension that he would desert her. And if it be admitted that Kester told her that he would run a dagger through her which he denies-such statement, if made at all, was at the time he told her that he would leave her, and the threat could have no retroactive effect so as to render voidable any act of hers occurring prior thereto. Kester, in testifying in relation to the threat upon which the plaintiff re

lies, says: "All there was about coals of fire, I told her she was making a regular hell here for me, and that I could probably heap coals, too, if she would keep on. Q. Now, about cutting her throat; what about that? A. Don't remember that I ever said anything of the kind. Q. Ever say anything that indicated that? A. I told her, I guess, she ought to have her throat cut. That was before we separated the first time; maybe a year before; I don't know." While Kester's threats made after the mutilation of the note afford no grounds for avoiding her act, any threats made by him before and after she removed Denney's signature therefrom ought to be considered for the purpose of ascertaining his disposition towards her, and whether she reasonably apprehended personal violence from his threat that he would heap coals of fire on her head unless she complied with his demands.

2. His remark, made to her about a year prior to their first separation, that she ought to have her throat cut, is certainly evidence of an ill feeling towards her; but such remark is not equivalent to a threat that he would do it. The expression was probably momentary only, and may have been provoked by her; for his sister and her husband, the defendant Denney, testify that his disposition is not violent. Kester's threat that he would heap coals of fire on his wife's head could not have been understood by her in the literal sense which the meaning of the words implies, but the statement was hyperbolical, and plaintiff probably understood the menace to mean that, unless she complied with his demand to remove Denney's signature from the note, he would annoy her by his conduct. Giving to the threat the meaning which the plaintiff and her husband undoubtedly understood, we do not think the menace sufficient to overcome her will power, or that she was compelled thereby to destroy the note, but that she conceded the justice of her husband's contention that the note had been paid by the stock and farming implements which he furnished; and her consent to the mutilation of the

note, having thus been voluntarily secured, cannot now be revoked because her husband may have thereafter sold or disposed of the property which afforded the consideration for the cancellation of the note. There is some conflict in the

evidence relative to Kester's temper, but the court saw the witnesses, and heard them testify, and was enabled thereby to determine whether Kester possessed a violent temper; and, having found for the defendant, we must conclude therefrom that his disposition and treatment of his wife had not been such as to cause her reasonably to apprehend any personalˇ violence at his hands, and hence the decree is affirmed. AFFIRMED.

Argued 27 June; decided 13 August, 1900.

STAMPER v. RAYMOND.

[62 Fac. 20.]

MALICIOUS PROSECUTION ESSENTIAL ELEMENTS.

1. To support an action for malicious prosecution the plaintiff must prove that the prosecution was actuated by actual malice, that it was without probable cause, and that it has terminated.

2. In determining whether the prosecution was instituted with probable cause it is the duty of the court to declare to the jury that the existence of certain facts shows a want of reasonable cause, though whether those facts exist must be determined by the jury from the evidence: Gee v. Culver, 12 Or. 228, and Hess v. Oregon Baking Co. 31 Or. 503, cited.

EXISTENCE OF MALICE IS A JURY QUESTION.

3. In actions for malicious prosecution the jury must determine whether the defendant acted with malice, and any wrong and unlawful act done knowingly and purposely to the injury of the plaintiff is malicious: Gee v. Culver, 13 Or. 598, cited.

COMPETENT EVIDENCE ON QUESTION OF MALICE.

4. In an action for malicious prosecution for assault, where the alleged assault was committed by plaintiff in resisting defendant's attempt to remove grain from plaintiff's possession, and each party claimed that, under the terms of a contract between them, he was entitled to the possession of the grain, the contract was properly admitted in evidence, as