58 HARVARD LAW REVIEW. But whatever its origin, the defence of duress does not differ in its nature from the defence of fraud. As Mr. Justice Holmes well says : " The ground upon which a contract is voidable for duress is the same as in the case for fraud ; and is that, whether it springs from a fear or from a belief, the party has been subjected to an improper motive for action." ^ Duress was, therefore, never re- garded as negativing the legal execution of the obligation. " The deed took effect, and the duty accrued to the party, although it were by duress and afterwards voidable by plea." ^ The defence is strictly personal, and not real; that is, it is effective, like all equi- table defences, only against the wrong-doer, or one in privity with him. Duress by a stranger cannot, therefore, be successfully pleaded in bar of an action by an innocent obligee ; ^ and duress by the payee upon the maker of a negotiable note will not affect the rights of a subsequent bona fide holder for value.* By statute or judicial innovation, as we have seen, the jurisdic- tion of the common-law courts has been greatly extended, except in the Federal Courts of this country, in the matter of defences to actions on formal contracts. In all cases, where, formerly, a defend- ant was obliged to apply to equity for relief against an un'conscion- able plaintiff, he may now defeat his adversary at law. But the change of forum does not mean any change in the essential char- acter of the relief The common law accomplishes, by peremptor- ily barring the action, the same result, and upon the same grounds, that the Chancellor effected by a permanent unconditional injunc- deeds as soon as they are at liberty and signify the fear they were under to their near- est neighbors and to the coroner ; and if they do not reclaim such deeds by plaint within the year and day, the deeds shall be valid." See also i Nich. Britt. 223 ; Bract- 16, b, 17 ; 2 Bract. N. B. Nos. 182, 200 ; 3 Bract. N. B. Nos. 1643, 1913. 1 Fairbanks v. Snow, 145 Mass. 152, 154. '^ Y. B. 8 Hen. VI. 7-15, per Martin, J. Duress was not admissible under a plea of non est factum. Y. B. 7 Ed IV. 5-15; Y. B. i Hen. VII. 15, b-2 ; Y. B. 14 Hen. VIII. 28, a-7 ; Whelpdale's Case, 5 Rep. 119. On the same principle, a feoffment under duress was effectual as a transfer of the seisin. Y. B. 2 Ed. IV. 21-16; Y. B. 18 Ed. IV. 29-27. 8 Y. B. 45 Ed. III. 6-15 {semble) ; Anon. Keilw. 154, pi. 3; Fairbanks v. Snow, 145 Mass. 152.
- Duncan v. Scott, i Camp, too {semble) ; Beals v. Neddo, i McCrary, 206 ; Hogan
V. Moore, 48 Ga. 156; Lane v. Schlemmer, 114 Ind. 296; Bank z/. Butler, 48 Mich. 192; Briggs V. Ewart, 51 Mo. 249 (semble) ; Clark v. Pease, 41 N. H. 414. Similarly a grantor under duress cannot recover his property if the wrong-doer has conveyed it to an innocent purchaser. Rogers v. Adams, 66 Ala. 600 ; Deputy v. Stapleford, 19 Cal. 302 ; Bazemore v. Freeman, 58 Ga. 276; Lane v. Schlemmer, 114 Ind. 296; Mundy 7J. Whittemore, 15 Neb. 647 ; Schroader v. Decker, 9 Barr, 14; Cook v. Moore, 39 Tex. 255 ; Tallay v. Robinson, 22 Grat. 888.
