Page:Harvard Law Review Volume 9.djvu/85

57 SPECIALTY CONTRACTS AND EQUITABLE DEFENCES. S7 Accommodation, — An obligee, for whose accommodation the obb'gor has executed an instrument under seal, certainly ought not to enforce the specialty against the obligor who has befriended him, and whom, by the very nature of the transaction, he was bound to save harmless from any liability to anyone. But prior to 1854 the obligor would have had no defence at law to an action by the obligee. In Shelburne v. Tierney,^ a bill filed by the obligor to restrain an action by the obligee was assumed by both parties to be valid, but was defeated by an answer showing that the action, although in the name of the obligee, was really brought in behalf' of an assignee of the obligation. The facts were similar in Dick- son V. Swansea Co.,^ except that the obligor pleaded an equitable plea instead of filing a bill, and the obligee met this by an equitable replication to the same effect as the answer to the bill in Shelburne V. Tierney.^ Duress. — The general rule, that the misconduct of the obligee in procuring or enforcing a specialty obligation was no bar at common law to an action upon the instrument, was subject to one excep- tion. As far back as Bracton's time, at least, one who had duly signed and sealed an obligation, and who could not therefore plead nan est factum, might still defeat an action by pleading affirma- tively that he was induced to execute the specialty by duress prac- tised upon him by the plaintiff.* The Roman law was more consistent than the English law in this respect. For, by the jus civilcy duress, like fraud, was no answer to a claim upon a formal contract. All defences based upon the conduct of the obligee were later innovations of the praetor, and were known as exceptiones prcBtoricBy or as we should say, equitable defences.^ It is quite possible that the anomalous allowance of the defence of duress at common law may be due to some forgotten statute.^ I Bro. C. C. 434. 2 L. R. 4 Q. B. 44. 8 For similar decisions see Farrar v. Bank of N. Y,, 90 Ga. 331 ; Meggett v. Baum, 57 Miss. 22 ; Freund v. Importer's Bank, 76 N. Y. 352. But see contra. Wetter v. Kiley, 95 Pa. 461. 5 The learned reader who desires to study the nature of Roman exceptio will find the subject thoroughly discussed in Eisele, T3ie materielle Grundlage der Exceptio ; Zimmermann, Kritische Bemerkungen zu Eisele's Schrift ; Lenel, Ueber Ursprung und Wirkung der Exceptionen. ♦5 The language of Britton, i Nich, Br. 47, is certainly significant : "We will that contracts made in prison shall be held valid unless made under such constraint as includes fear of death or torture of body ; and in such case they shall reclaim their 8
 * Bracton, 16, b, 17.