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injustice of allowing the obligor to profit at the expense of the obligee by the mere accident of the loss of the obligation is obvious. But this ethical consideration was irrelevant in a court of common law. It did finally prevail in Chancery, which, in the seventeenth century, upon the obligee's affidavit of the loss or destruction of the instrument, compelled the obligor to perform his moral duty.1 A century later the common-law judges, not to be outdone by the chancellors, decided, by an act of judicial legislation, that if profert of a specialty was impossible by reason of its loss or destruction, the plaintiff might recover, nevertheless, upon secondary evidence of its contents.2

The difference between the ethical attitude of equity and the unmoral (not immoral) attitude of the common law in dealing with specialty contracts appears most conspicuously in the treatment of defences founded upon the conduct of the obligee. As the obligee, who could not produce the specialty, was powerless at common law against an obligor, who unconscionably refused to fulfil his promise, so the obligor who had formally executed the instrument was, at common law, helpless against an obligee who had the specialty, no matter how reprehensible his conduct in seeking to enforce it. On the other hand, as equity enabled the owner of a lost obligation to enforce it against an unjust obligor, so also would the Chancellor furnish the obligor with a defence by enjoining the action of the obligee, whenever it was plainly unjust for him to insist upon his strict legal right.

Let us examine the usual defences in the light of the authorities. 1 Equity seems to have proceeded rather cautiously in giving relief in the case of lost obligations. In 1579 an obligee obtained a decree against an obligor who had wrongfully obtained the specialty. Charnock v. Charnock, Tothill, 267. See also King v. Hundon (1615), Hob. 109; Barry v. Style (1625), Latch, 24; Abdee's Case (1625), Latch, 146. In 1625, in Anon. Poph. 205, Latch, 148, s. c., Doderidge, J., said: "The grantee of the rent-charge, having now lost his deed, can have no remedy in equity, for in this case equitas sequitur legem." Jones, J., and Whitlock, J., were of the same opinion; Doderidge, J., then added: "If the grantee had lost the deed by a casual loss, as by fire, &c., in such a case he shall have remedy in equity." See to the same effect, Barry v. Style, Latch, 24, per, Jones, J., and Abdee's Case, Latch, 146. The earliest reported cases of equitable relief upon lost specialties belong to the last half of the seventeenth century. Underwood v. Staney, 1 Ch. Cas. 77; Collet v. Jaques, 1 Ch. Cas. 120; Anon. 1 Ch. Cas. 270; Lightlove v. Weeden, 1 Eq. Ab. 24, pl. 7; Sheffield v. Castleton, Eq. Ab. 93, pl. 6.

2 Read v. Brookman, 3 T. R. 151. This case was wholly without precedent at common law, was opposed to the opinion of Lord Hardwicke as expressed in Atkins v. Farr, 2 Eq. Ab. 247; Walmesley v. Child, 1 Ves. 341, 345; and Whitfield v. Fausset, 1 Ves. 387, 392, and did not commend itself to Lord Eldon in Ex parte Greenway, 6 Ves. 811, 812; Princess of Wales v. Liverpool, 1 Sw. 114, 119.

Fraud. Startling as the proposition may appear, it is nevertheless true that fraud was no defence to an action at law upon a sealed contract. In 1835, in Mason v. Ditchbourne,1 the defendant urged as a defence to an action upon a bond, that it had been obtained from him by fraudulent representations as to the nature of certain property; but the defence was not allowed. Lord Abinger said: "The old books tell us that the plea of fraud and covin is a kind of special non est factum, and it ends and so the defendant says it is not his deed.' Such a plea would, I admit, let in evidence of any fraud in the execution of the instrument declared upon as if its contents were misread, or a different deed were substituted for that which the party intended to execute. You may perhaps be relieved in equity, but in a court of law it has always been my opinion that such a defence is unavailing, when once it is shown that the party knew perfectly well the nature of the deed which he was executing." This case was followed in 1861 in Wright v. Campbell,2 Byles, J, remarking: "Surely, though you shewed the transaction out of which it arose to have been fraudulent, yet in an action at law, on the deed, that would not be available as a legal defence."

Under the Common Law Procedure Act of 1854, § 83, fraud was pleadable in such cases as an equitable plea; for, from very early times, equity would grant a permanent unconditional injunction against an action upon a specialty got by fraud.3

In the United States there are numerous decisions disallowing the defence of fraud in an action at law upon a specialty. This is still the rule in the Federal courts, and was applied in 1894.5

1 I M. & Rob. 460, 2 C. M. & R. 720 n. (a) s. c.

2 2 F. & F. 393. See also Bignold v. Bignold, 1 Mad. Ch. Pr. (3d ed.) 383; Spencer v. Handley, 4 M. & Gr. 414, 419.

3 Savill v. Wolfall (1584), Ch. Cas. Ch. 174, 175; Glanvill v. Jennings, Nels. Ch. 129; Lovell v. Hicks, 2 Y. & C. Ex. 46.

Hartshorn v. Day, 19 How. 211, 222; George v. Tate, 102 U. S. 564; Shampean v. Connecticut Co., 42 Fed. R. 760; Vandervelden v. Chicago Co., 61 Fed. R. 54; Kennedy v. Kennedy, 2 Ala. 571, 592; Halley v. Younge, 27 Ala. 203; White v. Watkins, 23 Ill. 480, 482, 483; Gage v. Lewis, 68 Ill. 604, 613; Huston v. Williams, 3 Blackf. 170; Scott v. Perrin, 4 Bibb, 360; Montgomery v. Tipton, 1 Mo. 446; Burrows v. Alter, 7 Mo. 424; Rogers v. Colt, 1 Zab. 704; Stryker v. Vanderbilt, 1 Dutch. 482 (see also Connor v. Dundee Works, 50 N. J. 257, 46 N. J. Eq. 576); Vrooman v. Phelps, 2 Johns. 177; Dorr v. Munsell, 13 Johns. 430; Franchot v. Leach, 5 Cow. 506; Champion White, 5 Cow. 509; Dale v. Roosevelt, 9 Cow. 307; Belden v. Davies, 2 Hall, 433 Guy v. McLean, 1 Dev. 46; Greathouse v. Dunlap (Ohio), 3 McL. 302, 306; Wyche, Macklin, 2 Rand. 426.

5 Vandervelden v. Chicago Co., 61 Fed. R. 54.

But nearly all, if not all of the State decisions just cited, have lost their force by reason of statutory changes, so that the obligor is no longer required to resort to equity for relief. In a few States, chiefly in those where there was, in the early days, no Court of Chancery, the defence of fraud was allowed to a specialty obligor without the aid of a statute.1

Illegality. If the illegality of a contract under seal appeared on the face of the instrument, no court would sanction the obvious scandal of a judgment in favor of the obligee.2 But if the specialty was irreproachable according to its tenor, the common law, prior to 1767, did not permit the obligor to defeat the obligee by showing that the instrument was in fact given for an illegal or immoral purpose. The only remedy of the obligor was a bill in equity for an injunction against the action at law. Such bills were very common.4


But the common-law rule was changed in 1767 by Collins v. Blantern which sanctioned the legal defence of illegality. The opinion of the court delivered by Wilmot, C. J., bears the unmistakable signs of an innovation. "We are all of opinion that the bond is void abi initio by the common law, by the civil law, moral law, and all law whatever." And yet the learned judge was unable to cite a single authority. "I should have been extremely sorry if this case had been without remedy at common law. Est boni judicis ampliare jurisdictionem." This decision, being before the Revolution, was naturally followed in this country.

Failure of Consideration. - -As fraud and illegality were not legal defences to an action upon a specialty, no one will be surprised

1 Union Bank v. Ridgely, 1 Har. & G. 324, 416; Edelin v. Sanders, 8 Md. 118, 131 ; Dorsey v. Monnett (Md. 1890), 20 Atl. R. 196; Partridge v. Messer, 14 Gray, 180; Milliken v. Thorndike, 103 Mass. 382; Stubb v. King, 14 S. & R. 206, 208; McCulloch v. McKee, 16 Pa. 289; Phillips v. Potter, 7 R. I. 289; Gray v. Hankinson, 1 Bay, 278; Means v. Brickett, 2 Hill, Ch. 657.

2 Y. B. 2 Hen. IV. 9-44; Thompson v. Harvey, Comb. 121; Taylor v. Clarke, 2 Show. 345; Norfolk v. Elliott, 1 Lev. 209, Hard. 464, s. C.

3 Macrowe's Case (1585), Godb. 29, pl. 38; Brook v. King (1588), 1 Leon. 73; Jones's Case, I Leon. 203; Oldbury v. Gregory (1598), Moore, 564 (semble); Jenk. Cent. Cas. 108; Law v. Law (1735), Cas. t. Talb. 140. See also Andrews v. Eaton (1729), Fitzg. 73; Downing v. Chapman (1765), 9 East, 414, n. (a).

4 Tothill (ed. 1649), 26, 26, 27, 27; Tothill (ed. 1671), 27, 81, 84, 86; 1 Vern. 348, 411, 412, 475; 2 Vern. 70, 291, 652, 764; Blackwell v. Redman, 1 Ch. Rep. 88; Hall v. Potter, 3 Lev. 411; Kemp v. Coleman, I Salk. 156; Law v. Law, 3 P. Wms. 391; Rawden v. Shadwell, Amb. 269; Newman v. Franco, 2 Anst. 519; Andrew v. Berry, 3 Anst. 634; Harrington v. Duchatel, 1 Bro. C. C. 124.

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to find that the rule was the same as to failure of consideration. The doctrine is explicitly stated by Bracton: "Nec habebit exceptionem pecuniae non numeratae contra scripturam.” 1 A case of the time of Henry VI.2 illustrates pointedly the purely equitable nature of the obligor's relief, and also the possibly limited scope of that relief. The obligor, being sued at law, applied to the Chancellor for relief, on the ground that he had not received any part of the expected equivalent for which he had executed his bond. The Chancellor consulted the judges of both Benches, who were all of opinion, that in conscience the obligee ought to surrender the bond or execute a release. The Chancellor made a decree accordingly against the obligee. The latter, however, refused to give up the bond or to release it, and was thereupon committed to the Fleet for contempt. He persisted however, although in prison, in the prosecution of his action at law, and the same judges of the Common Bench, who had advised the Chancellor to make his decree against the obligee, now gave judgment at law in his favor. The judges were clearly right both as to their advice and their subsequent judgment. Equity acts in personam, not in rem. The Chancellor could imprison the obligee for disobedience of his decree, but he could not nullify the bond. After 1854 obligors could make use of the statutory equitable plea of failure of consideration, which was an absolute bar to the action.

The English rule against the admissibility of failure of consideration as a defence at law was followed in this country in a number of early decisions; but, by statute, these decisions no longer govern except in the Federal Courts.5

1 Bracton, 100, b.

2 Y. B. 37 Hen. VI. 13-3.

3 See also Savell v. Romsden (Ed. VI.), 1 Cal. Cl. cxxxi; Tourville v. Naish, 3 P. Wms. 307.

4 Hartshorn v. Day, 19 How. 211, 222; Leonard v. Bates, 1 Blackf. 172; Huston v. Williams, 3 Blackf. 170, 171; Fitzgerald v. Smith, 1 Ind. 310, 313; Bates v. Hinton, 4 Mo. 78; Hoitt v. Holcomb, 23 N. H. 535, 554; Doolan v. Sammis, 2 Johns. 179 n.; Dorr v. Munsell, 13 Johns. 430; Parker v. Parmele, 20 Johns. 130. The opposite rule was adopted in South Carolina, Gray v. Handkinson, 1 Bay, 278; Adams v. Wylie, 1 N. & Mc. 78; Tunno v. Fludd, 1 McC. 121; and in Pennsylvania, McCulloch v McKee, 16 Pa. 289.

5 The framers of the New York statute, 2 Rev. St. 406, § 77, seem not to have discriminated between the failure of an expected consideration, and the absence of a consideration where none was intended. By making the seal " only presumptive evidence of a sufficient consideration which may be rebutted," they not only let in an equitable defence at law, but also abolished gratuitous sealed obligations altogether.

Payment. How completely ethical considerations were ignored by the common-law judges in dealing with formal contracts, is shown by the numerous cases deciding that a covenantor who had paid the full amount due, but without taking a release, must, nevertheless, pay a second time, if the obligee was unconscionable enough to bring an action on the specialty. Nay, more, even though the specialty was upon payment surrendered to the obligor, the latter was still not safe unless he cancelled or destroyed the specialty. For, if the obligee should afterwards get possession of the instrument, even by a trespass, the obligor, notwithstanding the payment, the surrender, and the trespass, would have no defence to an action at law by the obligee, "because of the mischief that would befall the plaintiff if one should be received to avoid an obligation by such averment by bare words, and also because there is no mischief to the defendant if his plea be true, since he may have a writ of Trespass for the carrying off of the obligation, and recover damages for the loss sustained in this action."2

As in the case of fraud and illegality, so in the case of payment. Equity at length gave relief to the obligor by restraining actions at law. In 1483, Chancellor Rotheram asked the advice of the judges as to the propriety of issuing an injunction against the recognizee in a statute-merchant which had been paid by the recognizor. The judges were opposed to the injunction, Hussey, C. J., saying: "It is less of an evil to make obligors pay a second time for their negligence than to disprove matter of record or specialty by two witnesses." The Chancellor remarked that it was the common course in Chancery to grant a subpœna in the case of a specialty. In the end, however, in deference to the judges,

1 "And although the truth be, that the plaintiff is paid his money, still it is better to suffer a mischief to one man than an inconvenience to many, which would subvert a law; for if matter in writing may be so easily defeated and avoided by such surmise and naked breath, a matter in writing would be of no greater authority than a matter of fact." Dy. 51, pl. 15. See to the same effect, Anon. (1200) 2 Rot. Cur. Reg. 207; Y. B. 20 & 21 Ed. I. 305; Y. B. 5 Ed. III. 63-106; Y. B. 20 Hen. VI. 28-21; Y B. 22 Ed. IV. 51-8; Anon. (1537) Dy. 25, pl. 60; Nichol's Case (1565), 5 Rep. 43, Cro. El. 455 s. c.; Kettleby v. Hales (1684), 3 Lev. 119; Mitchell v. Hawley, 4 Den. 414, 418, and the cases cited in the next note.

2 Y. B. 5 Hen. IV. 2–6; Y. B. 22 Hen. VI. 52–24; Y. B. 37 Hen. VI. 14–3; Y. B. 5 Ed. IV. 4-10; Y. B. 1 Hen. VII. 14-2; Waberley v. Cockerell, Dy. 51, pl. 12; Cross v Powell, Cro. El. 483; Atkins v. Farr, 2 Eq. Ab. 247; Licey v. Licey, 7 Barr, 251, 253 In the last case Gibson, C. J. said: “Even if a bond, thus delivered [to the obligor] but not cancelled, come again to the hands of the obligee, though it be valid at law, the obligor will be relieved in equity.”

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