"(1) That the findings of fact and the decisions of the court are each and every one of them, and each and every part of each one of them, not sustained by sufficient evidence, and are contrary to law. (2) Error of law occurring at the trial, and excepted to by the defendant at the time. (3) That the judg ment and decision rendered by the court are not sustained, and are contrary to the evidence. (4) That the decision and judgment of the court are not sustained by sufficient evidence and are contrary to law."

The court overruled the motion, and entered judgment that the note and mortgage described in the pleadings were void, and adjudged that the same should be surrendered up for cancellation within 10 days from the rendition of the judgment; and that, in case the same were not so surrendered up and canceled, the decree of the court should stand as a full and complete discharge and cancellation thereof. Costs were also assessed against the defendants J. C. Rodgers, Charles B. Hatch, and W. E. McCrary. The defendant Charles B. Hatch excepted to the rulings, orders, and judgment of the court, and brings the case here.

Ellis Lewis, for plaintiff in error.

W. A. Madaris and Scott & Lynn, for defendants in error.

HORTON, C. J. Action upon a note and mortgage. The findings of the trial court are not contested before us, and we must, therefore, accept them in all respects as true. The immediate circumstances attending the execution of the note and mortgage were as follows: Prior to January 3, 1881, Philip Barrett and J. C. Rodgers had been interested in a lot of cattle, as partners. Rodgers claimed that Barrett owed him a greater sum on the sale of the cattle than Barrett admitted. On said January 3rd, Rodgers employed Alexander Blake, an attorney at law, to obtain a settlement of the partnership matters with Barrett. Blake drew up a complaint, charging Barrett with the crime of embezzling $550 belonging to Rodgers, and Rodgers subscribed, swore to, and filed the same before a justice of the peace of Osage county, in this state, who thereupon issued a warrant for Barrett's arrest for embezzlement, and delivered the same to Blake. Rodgers then employed a deputy sheriff of Osage county, named Underwood, for the day, and agreed to pay him $10. Upon the same day, after dark, Rodgers, Blake, Underwood, and one Hughes went to Barrett's house, and, in the presence of his wife and eight children, Blake, the attorney, told him "they had come for a settlement of Rodgers' claim in the cattle; that they had a warrant for his arrest for embezzling $550, which was in his (Blake's) possession; that unless he executed a note and mortgage, to be signed by himself and wife, upon their homestead for $550, and also for $20 attorney's fees for Blake, $10 for the services of Underwood, as deputy-sheriff, and $2 for the justice of the peace, he would be arrested and taken to jail for embezzlement." Barrett and wife refused to do this. Blake then took the warrant from his pocket and handed it to Underwood, and told him "to read it," which he did in the presence of all the parties, including the children. Blake then told the deputy-sheriff "not to lay his hands on Barrett until he

and his wife took a little more time to execute the note and mortgage," giving them just 10 minutes to do so; and Blake then threatened them "that unless they did so in the ten minutes, Barrett would be arrested upon the warrant, and taken to jail." Barrett and his wife were alarmed and frightened by the threats and conduct of the parties, the wife being in tears. The children were also alarmed and frightened and in tears, and believing from the threats that their father would be taken from his home to jail, they besought their mother, who had refused to sign the mortgage, to execute the same and save their father from going to jail. Induced solely by the threats of Blake and the parties, and believing that they would be carried out, and that Barrett would be arrested under the warrant, taken from his home and family and put in jail, the latter signed the note, and he and his wife then sigued the mortgage. Blake, Rodgers, Underwood, and Hughes immediately left.

From other findings it also appears that the warrant issued by the justice of the peace for the arrest of Barrett was never returned; that no record was ever made in the docket of the justice showing the same, or any criminal prosecution against Barrett; that Barrett was never arrested upon the charge, and that no further criminal proceedings have ever been had; that the sole and only object of Blake and Rodgers in filing the complaint and obtaining the warrant was to make use of the criminal process of the state to compel the execution of the note and mortgage in suit.

The note in controversy is in these words:

"$582.00.

"Thirty months after date, for value received, I promise to pay to the order of J. C. Rodgers the sum of five hundred and eighty-two dollars, with interest from date until paid at the rate of ten per cent. per annum. If not paid annually, then to become as principal and draw the same rate of interest. "PHILIP BARRETT.

"This third day of January, 1881."

Between the parties to the original transaction, of course, the payment of the note could not be enforced in the courts. It is claimed, however, by Charles B. Hatch that he is entitled to hold the note and mortgage free from any defense which the makers could set up against the payee, upon the ground that he purchased the note for a valuable consideration before its maturity, in the usual course of business, without the knowledge of any equities or defense against it. He asserts himself to be a bona fide owner of the note and mortgage for value. The following is the writing upon the back of the note, of the date of July 23, 1881:

"State of Arkansas, County of Washington-ss.: I, James C. Rodgers, do hereby assign the within note to Charles B. Hatch, of Osage county, Kansas. Said assignment is made without recourse on me, either in law or equity. "J. C. RODGERS.

"Signed in the presence of

"H. F. RAYMOND, Clerk Co. Court, Washington County, Arkansas."

The question is whether this writing can be considered in a commercial sense an indorsement. If the note was not "indorsed" to Hatch, it was not taken by him in the usual course of business by the mode of transfer in which negotiable paper is usually transferred. "A negotiable promissory note, if payable to order,' can be assigned free from all equities only by indorsement; for there is no statute in this state that authorizes a negotiable promissory note, payable to ‘order,' to be transferred free from all or any equitable defenses or claims, except by indorsement." Comp. Laws 1879, c. 14, § 1; McCrum v. Corby, 11 Kan. 464. The alleged indorsement is clearly not in the usual or common form, but substantially different therefrom. The words of the indorsement, taken together, must be treated as only an assignment of the note. An assignee stands in the place of the assignor, and takes simply an assignor's rights; but the assignment of a note will not cut off the defenses of the maker. Trust Co. v. Bank, 101 U. S. 68; Bank v. Walker, 2 McCrary, 565.1 We think it will be conceded that if there were only written upon the back of the note the following words: "I, James C. Rodgers, do hereby assign the within note to Charles B. Hatch, of Osage county, Kansas,—” that such writing would not be considered an indorsement in a commercial sense. We do not think the additional words written upon the back, to-wit, "Said assignment is made without recourse on me, either in law or equity," alter or change the legal rights of the parties under the written assignment, and all of the writing must be treated as merely an assignment of the note. Daniell, Neg. Inst. §§ 666688, 701; Martin v. McMasters, 14 La. 420; Hailey v. Falconer, 32 Ala. 536; Vincent v. Horlock, 1 Camp. 442. Of course, we understand that an indorsement qualified by the words "without recourse" is not out of due course of trade, and does not throw any suspicion upon the character of the paper. A note continues negotiable, notwithstanding the words "without recourse;" but in this case, the indorsement goes further than the mere words "without recourse," and therefore, as before stated, we cannot consider the writing by which the note was transferred as an indorsement in a commercial sense. If parties accept paper with the indorsement "without recourse," with the expectation that the same shall continue negotiable, such a kind of indorsement ought to be made in strict compliance with the technical rules of commercial law, in this way: "JOHN DOE, without recourse;" or "Pay to Richard Roe, or order. JOHN DOE, without recourse;" or in some other like form.

This disposes of the case, as, upon the foregoing conclusion, the judgment of the district court must be affirmed.

The writer of this, however, feels impelled to express his individual views upon another question discussed at length in the briefs; that is, whether the duress in the inception of the note utterly avoids

1S. C. 5 Fed. Rep. 399.

it, even if Hatch were a bona fide holder for value. The decisions generally support the doctrine that the holder of negotiable paper, before maturity and without notice, takes it clear of equities between the original parties, even when obtained under duress. This doctrine

In

is declared to be necessary in order to give security to negotiable paper. Beals v. Neddo, 1 McCrary, 206;1 Hogan v. Moore, 48 Ga. 156; Clark v. Pease, 41 N. H. 414. It is doubtful whether the reasons given in the decisions are convincing or logical. There are many things to be said in favor of holding a note void where it is signed by a party under severe threats and dangers of personal violence. such a case the party is not a free agent, and is in no default. A contract entered into under duress lacks the first essence of validity; that is, it wants the essential ingredient of the free assent of the contracting party. And a note, whether secured by mortgage or not, ought to form no exception to the rule, even in the hands of a bona fide holder for value. No rights ought to be acquired by such an act of violence or force. Mr. Daniell, in his excellent work on Negotiable Instruments, says:

"Indeed, we can discern no principle which would compel any person, whether a party to a negotiable or other kind of instrument, to pay it when under violent duress; that is, under the compulsion of force, with the only alternative of submitting to great bodily injury or indignity. Consent is of the essence of every contract, and if it is not given, the party should not be bound, if he had no alternative but to seem to give it or suffer grievous wrong. He creates no trust; he commits no negligence whereby the confidence of another can be betrayed. He is in no default, having the right of self-defense, in preferring his own life and safety to the chances of pecuniary injury to others, and his extorted act is nothing more or less than the act of a wrongdoer who uses his person as the instrument of forging his name." Volume 1, §§ 857, 858, pp. 650-652.

Prof. Parsons says, in volume 1, Notes & Bills, p. 276:

"A distinction may, perhaps, be taken between notes obtained by fraud and those obtained by force or duress. In the former case we should say that the defrauded party would generally be liable to a bona fide holder; but a note or bill obtained by duress might not be available in any hands against the party so compelled; and if the note were a good note, and a subsequent party indorsed it by duress, he would not be bound to any one."

In Roscoe's Digest of Bills & Notes, note 20, p. 117, it is said, in commenting on Duncan v. Scott, 1 Camp. 100:

"It may be doubted whether the defendant in this case was liable even to a bona fide indorsee for value. The bill being drawn under the duress, no contract arose, and it resembles the case of a bill drawn by a feme covert who is under a disability to contract.”

In Richardson v. Duncan, 3 N. H. 508, it was said—

"That when there is an arrest for improper purposes, without a just cause, or where there is an arrest for a just cause, but without lawful authority, or where there is an arrest for a just cause, and under lawful authority, for unlawful purposes, it may be construed a duress."

1S. C. 2 Fed. Rep. 41.

It was held in Alexander v. Pierce, 10 N. H. 494, that where a promissory note is executed under menace of imprisonment, and it appeared that the menace was of an unlawful imprisonment, and that the party was put in fear of imprisonment and thereby induced to execute the note, the note was void. In Meadows v. Smith, 7 Ired. Eq. 7, a note executed by a poor, ignorant, old man for the purpose of being released from an arrest made at a late hour of night, on the groundless charge of conspiracy, was held void. In Collins v. Westbury, 2 Bay, 211, it was said by the court:

"So cautiously does the law watch over all contracts, that it will not permit any to be binding but such as are made by persons perfectly free and at full liberty to make or refuse such contracts, and that, not only with respect to their persons, but in regard to their goods and chattels also. Contracts, to be binding, must not be made under any restraint or fear of their persons, otherwise they are void; as, in the case of Evans v. Huey, 1 Bay, 13, where a note was deemed void, both as to principal and his surety, when a party of armed men, in quest of horse thieves, called at a man's house in the night, and Evans, one of the party, demanded of the man of the house a settlement or satisfaction for an injury he had sustained some time before in a quarrel, and the defendant Huey, in order to compromise the matter, gave his note for twenty-eight pounds sterling, and the next morning got Franklin, his neighbor, to be his security. In that case it was deemed duress, because an armed party going to his house in the night-time, and one of them demanding a settlement for a former injury, was calculated to alarm a man's fears, although no threats were made use of. This, to be sure, was only a nisi prius case. But it has been a leading case on the subject, and admitted as the law of duress ever since."

Coke said, in 2 Inst. 483:

"A man shall avoid his deed for manuas of imprisonment, albeit he were never imprisoned; for a man shall avoid his own act for manuas in four cases, viz.: (1) For fear of loss of life; (2) of loss of member; (3) of mayhem; and (4) of imprisonment.”

In Foshay v. Ferguson, 5 Hill, 154, in referring to the rule laid down by Coke, BRONSON, J., said:

"If a deed might be avoided nearly three centuries ago on the ground that it was procured by threats and the fear of illegal imprisonment, there can be no room for doubt upon the question at the present day. As civilization has advanced, the law has tended much more strongly than it formerly did to overthrow everything which is built upon violence. * * *I do not intend to say that a man can avoid his bond on the ground that it was procured by an illegal distress of goods; but I entertain no doubt that a contract procured by threats, and the fear of battery, or the destruction of property, may be avoided on the ground of duress. There is nothing but the form of a contract in such a case, without the substance. It wants the voluntary assent of the party to be bound by it.

In Hatter's Ex'rs v. Greenlee, 1 Port. (Ala.) 222, the court decided that

"There is duress of imprisonment, sufficient to invalidate acts done thereby, where there is restraint of liberty without warrant of law; or where the warrant, though legal, has been obtained upon a false charge without probable cause; or where an arrest, legal in inception, has been followed by maltreatment of the prisoner." 26 Amer. Dec. 378, and the notes cited.