
    JANUARY TERM, 1846.
    William Bingham vs. Isaac B. Sessions et al.
    The plea to an action of assumpsit on a promissory note,- that the plaintiff was not the lawful owner or bearer of the note sued upon at the time of the commencement of the suit, is bad as amounting to the general issue.
    A plea to an action on a note, that the note was obtained by duress, and setting forth in a detail of circumstances the nature of the duress in the procurement of the note, is not by such detail, even if unnecessary, vitiated.
    A plea to an action on a note, that the note was given to obtain the release of certain property levied on by virtue of a certain execution, which was fraudulently issued on a judgment previously satisfied, under which execution the plaintiff threatened to sell the property thus levied on, held to be bad on demurrer.
    A note given to obtain the release of property from an illegal levy is not void ; the maker has his redress by action against the judgment creditor, or the option to give the note ; if he elect the latter, he is bound by it.
    A plea to an action on a note, that the note was obtained by duress, through the fraudulent levy of an execution by the plaintiff therein ; though bad as a plea of duress, should be so amended by the permission of the court, as to allow the defence arising out of the fraud of the plaintiff, to be made.
    In error from the Choctaw county circuit court; Hon. Benjamin F. Caruthers, judge.
    . William Bingham sued Isaac B. Sessions, Elberd Neal and William Sperlin, upon a note for $1879 98, dated January 3, 1842, and due twelve months after to Edward Johnson or bearer, and by Johnson transferred to the plaintiff; on the note a credit of $1656-30, was indorsed on the 6th September, 1842.
    The defendants appeared and plead, 1. payment; 2. that the plaintiff was not the lawful holder, owner or bearer of said note when the suit was instituted, but that the note then and still was the property of another person ; 3, that the note in the declaration mentioned, was obtained from the defendants by the said Edward Johnson, the payee, by duress; that at and before the time the note was executed, Johnson, as sheriff of Choctaw county, held in his hands two writs of fi.fa., one in favor of said Elberd Neal, for the sum of thirty-two hundred and seventy-seven dollars, or thereabouts, on a judgment rendered in his favor against William Sperlin, on the 27th day of September, A. D. 1841, in the circuit court of Choctaw county; the other in favor of Isaac B. Sessions, for the sum of twenty-one hundred and seven dollars or thereabouts, on a judgment rendered in favor of said Sessions against said William Sperlin, on the 27th day of September, A. D. 1841, in the circuit court aforesaid; which executions were issued on the 8th day of November, 1841; that after these executions were levied on the personal and real estate of said Sperlin, and the same duly advertised for sale, on the day when the personal property being eight likely negroes, besides other property, was to be sold, to wit, on the 3d day of January, A. D. 1842, Johnson, a sheriff, corruptly and illegally procured to be issued from the circuit clerk’s office of that county, an execution on a judgment in favor of Milton T. Caperton against said Sperlin, Elias Spencer, John G. Neal and said Elberd Neal, which judgment Johnson well knew at that time, had long before that time been fully satisfied and paid off to him, the said Johnson, as sheriff as aforesaid, under other executions that had previously been issued thereon, for the express and avowed purpose of procuring and compelling said defendants to execute the note sued upon ; that Johnson, as sheriff, for the purpose of more effectually accomplishing this illegal, corrupt and fraudulent purpose, did have the execution in favor of Caperton falsely ante dated so as to bear date on the 23d day of December, A. D. 1841, when in fact and in truth it was issued on the 3d day of January, 1842; that for the further purpose of injuring, defrauding and oppressing the defendants, and depriving them of their rights, Johnson, as sheriff, falsely and fraudulently indorsed on the execution in favor of Caperton, that he had received the same on the 23d day of December, A. D. 1841, when in fact he did not receive the same until the 3d day of January, A. D. 1842; that Johnson, as sheriff, for the further purpose of defrauding the defendants, levied said execution on the negroes, which had been previously levied upon by the aforesaid executions in favor of Sessions and Neal, and did then and there, on the said 3d day of January, A. D. 1842, being the sale day of said negroes, and before the same were sold, threaten said defendants that unless they executed the said note, he would sell said negroes and other personal property under the execution in favor of Caper-ton, and appropriate the money to Caperton’s execution, and by that means prevent Sessions and Neal from obtaining any part of the money due on their executions; that Johnson, as sheriff, as aforesaid, the more certainly to effect his fraudulent purposes, falsely indorsed on the execution in favor of Caperton, that it had been on the 24lh day of December, A. D. 1841, levied on the said negroes, when in fact, if a levy was ever made, it was made on the 3d of January, 1842; that Sessions and Neal, fearing that if the sale was made as threatened by Johnson, the negroes would be purchased in by him-and his minions at ruinous prices, and be borne off beyond the jurisdiction of the court, and that they would thereby thus lose their debt; executed while thus under duress said note for the sole purpose of protecting their rights and interests, and for no other purpose or consideration whatever; that said Sperlin, knowing that said Caper-ton’s execution had long before that time been fully paid off and satisfied in full, and fearing that said Edward Johnson would, by carrying said threat into execution, make way with the whole of his personal property, at the most ruinous sacrifices, and by that means leave the said executions in favor of Neal and Sessions and other just claims, unsatisfied and hanging over him, consented, while thus under duress, to execute, and did, under the influence of said threat and while thus under duress of Johnson, execute the note, and for no other consideration.
    Issue was taken on the first plea; the second and third pleas were demurred to; the second, on the ground that it was uncertain, and amounted to the general issue; the third, on the ground that it was uncertain, double, sought to put in issue irrelevant facts, and did not make out a case of duress.
    The court below overruled the demurrer, and gave judgment for the defendants ; from which the plaintiff prosecutes this writ of error.
    
      Waul, for plaintiff in error.
    1. The second plea states that the note sued on was the property of a different person from the plaintiff.
    1st. The plea does not aver in whom is vested the property, if the note and payment to the holder, who is prima facie the owner, would be a satisfaction without notice to the payee, that the property was in some other person, and if notice was given, then the payee should aver and prove who the owner was, and not compel the plaintiff to join in an uncertain issue.
    2d. The plea neither traverses nor confesses, and avoids the declaration, and gives no color of title to plaintiff, and is therefore defective. Stephen on Pleading, 421.
    3d. It amounts to the general issue, being an argumentative denial of the whole contract, which is not allowed. Stephen on Pleading, 419; 6 Adol. & Ellis, 31 C. L. Rep. 309.
    2. The gravamen of the third plea is the duress complained of, by force of which the defendants were compelled to give their note, although the plea does not show any duress of the goods of the defendants, Sessions and Neal.
    And though it did show duress, if they^ would plead’ it in avoidance of a contract, the duress must be of the person, and cannot be of the goods. 2 Stark, on Ev. 287; Chitty on Con. 168, and notes.
    There are two cases in Bay’s South Carolina Reports which support a contrary doctrine, but they are unsustained by the authorities referred to, and cited to be overruled wherever insisted on as authority.
    
      Acee, for defendants in error.
    The first position assumed by the counsel for the appellant, that, the second plea of the appellees is defective, because it does not aver in whom was vested the property of the note, is neither sustainable upon principle nor supported by precedent.
    In the case of Bryant v. Owen, 2 Stewart & Porter’s R. 134, in which a plea, precisely similar to the one in question, was filed, it was expressly declared, “ that the court considered the plaintiff’s right of recovery to depend on the truth of the fact whether or not he was the owner of the note, and notwithstanding the legal presumption of ownership, it was subject to be rebutted ; and if successfully done, the plaintiff must fail in his action.”
    In the case cited the plea of non assumpsit was also filed by the defendant — which was not done in the suit at bar, which renders the authority doubly strong in favor of the appellees, who relied alone on special pleas.
    The second objection of the counsel for the appellant is not better taken, for the plea not only admits the execution of the note as described in the declaration, but sets up a sufficient legal defence against the plaintiff’s right of action.
    The third objection, that the plea amounts to the general issue, is equally untenable. “ That matter is specially pleaded which may be available under the general issue is not cause for demurrer.” Brown v. Jones, 3 Porter’s R. 429.
    At common law a party might plead non est factum and' 
      escroto together, though evidence allowable under the latter might be given under the former. Tindal v. Bright, Alab. R. 103. And in the case of Dunham et al. v. Ridgel, 2 Stewart & Porter, 402 - 4, the court, in commenting upon the effect of a statute similar to ours upon the subject of pleadings, said, “ the statute entitles the defendant to as many several pleas as he may deem necessary to his defence; therefore, it is no objection to a legitimate special plea, that the same matter of defence would be available under the general issue.”
    The exceptions taken by the counsel for the appellant to the third plea of the appellees, are equally untenable.
    “ The defendant is not precluded from introducing several matters into his plea, if they be constituent parts of the same entire defence, and form one connected proposition.” 1 Chitty’s Pleadings, 456-7, 5th Am. ed.; Ellis v. Martin, use, &¡'c., 2 .S. & M. 189.
    But the counsel for the appellant contends, that the plea is defective, because duress must be of the person, and not of the goods of the defendant.
    The authorities relied upon by the appellant have long since been overruled. In the case of Foshay v. Ferguson, 5 Hill’s R. 154, the chief justice says : “ 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.” The plea of duress in the case at bar alleges that, the appellant threatened to deprive the defendants, by illegal means, of their property, which brings the case within the rule laid down in the authority just cited — and judging it by that test constitutes it a good plea.
    A note or bond executed by a party while under the apprehension of injury, in the absence of threatening language, will be avoided on the ground of duress. Evans v. Huey and Franklin, 1 Bay’s R. 13. And the benefit of the plea enures to the surety. 1 Bay’s R. 13.
    So duress of goods will avoid a man’s act. Sasportas v. Jennings and Woodrop, 1 Bay’s R. 470; Nelson v. Suddarlh, 1 Hen. & Mun. 350.
    
      Again. In a case not dissimilar to the one at bar, it was expressly declared, “ that duress of goods or negroes is a good plea to a bond given to procure their release under hard and pressing circumstances, which are very proper for the consideration of a jury.” 2 Bay’s R. 211; 2 Powell on Contracts, 159.
    Even, if the facts stated in the plea do not amount to what in legal contemplation is deemed duress, still it is a good plea and cannot be reached by a demurrer.
    
      No principle is better settled than that a contract, to be valid and binding, must not only be made by parties who are able but who willingly and voluntarily agree to the same. In the case at bar, there was nothing but the form of a contract without the substance, for the appellees were compelled under hard and oppressive, and illegal.circumstances, to execute the note now sought to be avoided.
    
      Gray, on same side.
    The errors relied on are, that the court erred in overruling the demurrer to the second and third pleas. The demurrer assigns for cause, as to the second plea, that the same amounts to the general issue, and ought not to be pleaded; and also that it is uncertain. As to the first cause of objection, it will be sufficient to examine the plea itself, in order to expose the fallacy of this position. It does not amount to the general issue. What does this general issue amount to, and what could be given in evidence under it 1 At the common law any thing could be given in evidence under the general issue which went to prove that the plaintiff had no cause of action. If the plea pleaded amount to the general issue it must be equal to it, and must cover as broad ground of defence as the general issue itself. Could then any defence be made out under this plea which by the common law could be made out under the general issue 1 Clearly not. Fraud might be proved under the general issue. Total want of consideration, and by the common law entire payment might be given in evidence under that plea; none of which defences could be made out under this. And there is likewise a plain distinction to be drawn between the rules of practice in England in reference to pleadings, and those which prevail under our statute. There a defendant could (except by leave of the court) plead but one plea; here he may plead as many as he thinks fit. This is a matter of right, secured to a defendant under our statutory law. See H. & H. 589, 597. It has never been held an objection to the pleas of fraud, failure of consideration, or want of consideration,- that the same were allowable in evidence under the general issue, whenever the same have been pleaded, unless the general issue had been at the same time pleaded with them. Nor would it then be a good objection under our statute. The other objection that the plea is uncertain, is equally untenable. It advises the plaintiff that the defence relied on is his want of title, and this he knows better than any one else how to avoid. Being cognizant of how, and from whom he derived it, he came prepared with the necessary proof to sustain his title. The defendant might not know in whom the title vested',' although he might have heard the plaintiff confess that he himself had no title. The want of title of the plaintiff is the real defence set up, and this is averred with sufficient certainty.
    As to the objection taken to the third and last plea it seems tobe intended at the outset as a plea of duress; but contains substantially such facts as would make it good as a defence upon the ground of fraud,- even admitting it not to be good as a plea of duress. The plaintiff, by his demurrer, admits such facts as would unquestionably avoid his note, if the same have been properly pleaded. What is the object of pleading? It is unquestionably to bring to the notice of the court, in a certain and definite manner, such matters of fact, or of law, as would avoid in whole or in part, the cause of action. If this has been done with sufficient certainty it is sufficient, and the end of the law has been attained. A plea is not doubted, if it consist of numerous facts or matters of law, all tending to establish the same defence. The rule is, that two different matters of avoidance, each of which constitutes, or would constitute a defence, should not be pleaded in the same plea; but it has always been held that when the facts stated, however numerous they may be, all tend to establish but one matter of defence, the plea containing them will not be bad on account of duplicity. This principle is too well settled to require authority to be cited in support of it.
    But, is the plea not substantially good as a plea of duress ? Many respectable authorities can be found sustaining the plea as a valid plea of duress. See 1 Bay’s R. 13; Ibid. 470.
   Mr. Justice Thacher

delivered the opinion of the court.

Writ of error to ChoctaAV county circuit court.

This case comes up on exceptions to the action of the court below in overruling a demurrer to ttvo special pleas.

The first plea, to which the demurrer was overruled, was, that the plaintiff was not the lawful owner or bearer of the note sued upon at the time of the commencement of the suit. A plea of this kind, and in this form, has already been decided by this court to amount to nothing more than the general issue. Netterville et al. v. Stevens et al. 2 How. 642.

The second plea, to Avhich the demurrer was overruled, avers that the note upon Avhich suit Avas instituted was obtained by duress, and then proceeds to narrate a series of circumstances purporting to set out the mode by which the duress was effected. It is objected to the form .of this plea, that it is double. The details of the circumstances, although various and numerous, constitute but one connected proposition, and tend to raise but one issue, that of duress in the procurement of the note. Such a narrative of circumstances, even if possibly unnecessary, does not vitiate a special plea. Ellis v. Martin, use, &c., 2 S. & M. 187. It is objected to the matter of the plea that it bases the duress upon fears created in the minds of the defendants below, from apprehensions that they were about to be illegally deprived of their property and rights, unless they executed the note in question. In the plea the duress is described to have originated in an illegal issuance of an execution, and levy upon property. A question of this kind was examined in Foshay v. Ferguson, 5 Hill, 154, in Avhich the court says that a man cannot avoid his contract on the ground that it was procured by an illegal distress upon his goods. The old rule was, that one could not avoid his act on the ground that it was procured by the fear of battery, burning his house, taking away or destroying his goods, or the like, because he might have satisfaction by the recovery of damages. 2 Inst. 483. In latex days this rule has been much modified, and the principle admitted that a contract procured by threats and the fear of battery, or the destruction of property, may be avoided on the ground of duress. 5 Hill, 158. The case quoted by counsel, (Sasportas v. Jennings, 1 Bay, 470,) decides that there might be cases where duress of goods would avoid a man’s act, but does not decide that duress of goods, as a general rule, will avoid a contract made by its means. It sustains its opinion upon the reason upon which Lord Coke and Judge Blackstone lay down the general rule, which is, that the party may not have, under some such circumstances, an adequate satisfaction in damages, for the injury; but whenever the person committing the injury has the ability to make recompense, and there exists a prompt and effectual method to compel it, the reason for the exception to the general rule ceases. It might not, also, be going too far to say, that such circumstances may surround a person as to render it urgent and imperative on him to relieve himself by entering into a forced contract of this kind; yet such a situation would be, in point of fact, but a position in which there was an absence of ready and ordinary mode of redress, and therefore relate to the general rule. If, upon all the facts, it appears that the party might have exercised his choice, either to enter into the contract, or to seek and obtain his relief by action, the defence of duress would be bad. The circumstances detailed in this plea do not present such a case of extremity as has been just contemplated, but, on the other hand, show that sufficient and prompt relief could have been controlled.

The judgment of the court below is therefore reversed, the demurrer to the second and third pleas directed to be sustained, and the cause remanded for further proceedings. This court, moreover, while not empowered to make a peremptory order for an amendment, desires to intimate the opinion that the third plea, although insufficient as a plea of duress, contains, in substance, a charge of fraud, and would recommend that leave should be allowed by the court below to the defendant there so to amend the third plea as to bring the merits of the case to issue.  