Sec 146

Not only the party himself, but privies, may contest a promise on the ground of duress, so that all parties taking with notice are infected with the same disability.2-An indorser, who has indorsed a note in good faith, without knowledge that it was obtained by duress, may set up the duress of the maker to a defence against the holder, who was participant in the duress.3 As a general rule, however, the defence is to be restricted to the party on whom the duress has been exercised, and to those claiming under him.4 Hence the duress of the maker is no defence to a bona fide indorsee for value without notice.5

Sec 147

Fear, to be a defence, must be real and sincere: it must be metus non vanus sed Justus.6 This is the case, so the Roman jurists declare, when danger to life, health, liberty, or honor is threatened.7 Hence the maxim: Excusat career, status, mors, verbera, stuprum.8 But it is not necessary that the danger should be real. It is enough if it honestly exist in the estimation of the party yielding to the threat.9 We must put ourselves in his place in order to determine whether the threat was likely to have been operative; and for this purpose it is admissible to show that he was at the time of the transaction peculiarly sensitive to influences of this kind, and that this was known to the party attempting to apply the influence. The condition of the mind of the party yielding to such influence is to be determined from that of his own standpoint, and not from that of an ideal average.1 In the Roman law we have several rulings to the effect that in determining whether consent was extorted by fear, we are to take into consideration the physical condition, the sex, the mental and nervous condition, the education, and the peculiar social and domestic relations of the party threatened.2 "Metus autem causa abesse videtur, qui justo timore mortis, vel cruciatus corporis conterritus abest; et hoc ex affectu ejus intelligitur. Sed non sufficit quolibet terrore abductum timuisse, set hujus rei disquisitio judicis est."3 In our own law the same distinction is maintained.4

Party or privies may defend on this ground Bona fide indorsees.

The danger must be real and imminent from standpoint of party threatened.

1 Infra, sec 154.

2 Huscombe v. Standing, Cro. Jac. 189 ; McClintock v. Cummins, 3 McL. 158 ; Fisher v. Shattuck, 17 Pick. 252; Spaulding v. Crawford, 27 Tex. 155.

3 Griffith v. Sitgreaves, 90 Penn. St. 161.

4 Huscombe v. Standing, Cro. Jac. 187 ; Manlett v. Gibbs, 1 Brownl. 64; McClintock v. Cummins, 3 McL. 158; Robinson v. Gould, 11 Cush. 55 ; Thompson v. Lockwood, 15 John. 256 ; Steuben Bk. Co. v. Matthewson, 5 Hill, 249 ; Bac. Ab. tit. Duress, A.

5 Bowman v. Hiller, 130 Mass. 153; see infra, sec 347. 6 L. 6, D. iv. 2.

7 L. 5, D. eod. L. 3, sec 1, in f.; L. 4, sec 8, eod. L. 4, and 7 C. eod.

8 To same efFect see Baker v. Morton, 12 Wal. 150; Bowker v. Lowell, 49 Me. 429 ; Miller v. Miller, 68 Penn. St. 486.

9 That this is the case when fear of violence is set up as a defence to a prosecution for homicide, see Wh. Cr. L. 8th ed. sec 488.