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he declined to issue a subpoena in the case before him, as it concerned a record obligation, and reserved his judgment as to what should be done in the case of a specialty.1 But the common course of relieving the obligor of a paid specialty was adhered to, and was later extended to the case of the paid record obligation.3

In 1707, by St. 4 & 5 Anne, c. 16, § 11, payment without a release was made a valid legal defence.

Accord and Satisfaction. - From time immemorial the acceptance of anything in satisfaction of the damages caused by a tort would bar a subsequent action against the wrong-doer. Accord and satisfaction was, likewise, a bar to an action for damages arising from a breach of a covenant.5 But if the covenant was of such a nature as to create a debt, the creditor's right to maintain an action at law was in no wise affected, although he might have received, in satisfaction of the debt, property far exceeding in value the amount due by the specialty." "There is a difference where a duty accrues by the deed in certainty, tempore confectionis scripti, as by covenant, bill, or bond to pay a sum of money; there this certain duty takes its essence and operation originally and solely by the writing; and therefore it ought to be avoided by a matter of as high a nature, although the duty be merely in the personalty. But where no certain duty accrued by the deed, but a wrong or default subsequent together with the deed gives an action to recover damages, which are only in the personalty; for such wrong or de

1 Y. B. 22 Ed. IV. 6-18.

'Y. B. 7 Hen. VII. 12-2; Doct. & St., Dial. I. c. 12, Dial. II. c .6; Cavendish v. Forth, Toth. 90; Dowdenay v. Oland, Cro. El. 708; Huet v. De la Fontaine, Toth. 273. In the Treatise on Subpoena in the appendix to Doct. & St. (18th Ed.) the practice of giving equitable relief to the obligor is vigorously attacked by a Sergeant-at-law, who says; "I marvel much what authority the Chancellor hath to make such a writ in the king's name, and how he dare presume to make such a writ to let [hinder] the king's subjects to sue his laws, the which the king himself cannot do righteously; . . . and so meseemeth that such a suit by a subpoena is not only against the law of the realm, but also against the law of reason. Also, meseemeth, that it is not comformable to the law of God. For the law of God is not contrary in itself, i. e. to say one in one place and contrary in another place."

3 Clethero v. Beckingham, Toth. 276.

Anon. Y. B. 21 & 22 Ed. I. 586; Y. B. Hen. VI. 25-13; Y. B. 34 Hen. VI. 43-44; Andrew v. Boughey, Dy. 75, pl. 23.

5 Blake's Case, 6 Rep. 43, b., Cro. Jac. 99 s. c.; Eeles v. Lambert, Al. 38; Spence v. Healey, 8 Ex. 668; Mitchell v. Hawley, 4 Den. 414.

6 Preston v. Christmas, 2 Wils. 86; Mussey v. Johnson, 1 Ex. 241; Steeds v. Steeds, 22 Q. B. D. 537; Savage v. Blanchard, 148 Mass. 348, 350; Mitchell v. Hawley, 4 Den. 414.

fault accord with satisfaction is a good plea." In other words, the breach of a covenant sounding in damages, like the breach of an assumpsit, seems to have been conceived of as a tort; 2 whereas a specialty debt was the grant by deed of an immediate right, which must subsist until either the deed was cancelled or there was a reconveyance by a deed of release. This continued the rule at common law until 1854, when the specialty debtor was, by statute, allowed to bar the satisfied creditor by a plea on equitable grounds; for he was plainly entitled before this time to a permanent unconditional injunction.1

Discharge of Surety. It is a familiar doctrine of English law that a creditor, who agrees to give time to a principal debtor, thereby discharges the surety unless he expressly reserves his right against the latter. But if the surety's obligation was under seal, his only mode of resisting the creditor on the ground of such indulgence was by applying to a Court of Equity for an injunction. He had no legal defence to the creditor's action. The rule was the same in England, and in a few of our States, where the principal and surety were co-makers of a promissory note."

The English statute of 1854, introducing pleas on equitable grounds, now gives the surety an equitable defence at law. And, generally, in this country the defence has been allowed to actions on notes without the aid of a statute.s

1 Blake's Cas. 6 Rep. 43, b.

2 "And when it [the covenant] is broken, the action is not founded merely upon the specialty as if it were a duty, but savors of trespass, and therefore an accord is a good plea to it." Eeles v. Lambert, Al 38. "But the cause of action accrues by the tort subsequent." Kabbetts v. Stoker, 2 Roll. R. 187, 188. "Covenant is executory and sounds only in damages, and a tort, which (as it seems) dies with the person," per Baldwin, J., in Anon. Dy. 14. See also Sir Frederick Pollock's "Contracts in Early English Law," 6 HARVARD LAW REVIEW, 400.


Steeds z. Steeds, 22 Q. B. D. 537. See also Savage v. Blanchard, 148 Mass. 348,

4 Webb v. Hewitt, 3 K. & J. 438.

5 Rees v. Berrington, 2 Ves. Jr. 542.

Bulteel v. Jarrold, 8 Price, 467; Davey v. Prendergrass, 5 B. & Al. 187; Ashbee v. Pidduck, 1 M & W. 564; Parker v. Watson, 8 Ex. 404; Sprigg v. Mt. Pleasant, Bank, 10 Pet. 257; U. S. v. Howell, 4 Wash. C. C. 620; Locke v. U. S., 3 Mass. 446; Wittmer v. Ellison, 72 Ill 301; Tate v. Wymond, 7 Blackf. 240; Lewis v. Harbin, 5 B. Mon. 564; Pintard 7. Davis, Spencer, 205; Shaw v. McFarlane, 1 Ired. 216; Holt v. Bodey, 18 Pa. 207; Dozier v. Lee, 7 Humph. 520; Burke v. Cruger, 8 Tex. 66; Steptoe v. Harvey, 7 Leigh. 501; Sayre v. King, 17 W. Va 562.

▾ Pooley v. Harradine, 7 E. & B. 431; Yates v. Donaldson, 5 Md. 389; Anthony r. Fritts, 45 N. J. 1.

8 2 Ames, Cas. on Bills and Notes, 82 n. 2.

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Accommodation. An obligee, for whose accommodation the obligor 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 any one. 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 Dickson v. Swansea Co.,2 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.3

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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 exception. As far back as Bracton's time, at least, one who had duly signed and sealed an obligation, and who could not therefore plead non est factum, might still defeat an action by pleading affirmatively that he was induced to execute the specialty by duress practised upon him by the plaintiff. The Roman law was more consistent than the English law in this respect. For, by the jus civile, 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 prætor, and were known as exceptiones prætoriæ, 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.6

1 Bro. C. C. 434.

2 L. R. 4 Q. B. 44.

3 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.

+ Bracton, 16, b, 17.

5 The learned reader who desires to study the nature of Roman exceptio will find the subject thoroughly discussed in Eisele, Die materielle Grundlage der Exceptio; Zimmermann, Kritische Bemerkungen zu Eisele's Schrift; Lenel, Ueber Ursprung und Wirkung der Exceptionen.

The language of Britton, 1 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


But whatever its origin, the defence of duress does not differ in its nature from the defence of fraud. As Mr. Justice Holmes well says: The ground upon which a contract is voidable for duress is the same as in the case for fraud; and is that, whether it springs from a fear or from a belief, the party has been subjected to an improper motive for action." Duress was, therefore, never regarded as negativing the legal execution of the obligation. "The deed took effect, and the duty accrued to the party, although it were by duress and afterwards voidable by plea."2 The defence is strictly personal, and not real; that is, it is effective, like all equitable defences, only against the wrong-doer, or one in privity with him. Duress by a stranger cannot, therefore, be successfully pleaded in bar of an action by an innocent obligee; 3 and duress by the payee upon the maker of a negotiable note will not affect the rights of a subsequent bona fide holder for value.1

By statute or judicial innovation, as we have seen, the jurisdiction of the common-law courts has been greatly extended, except in the Federal Courts of this country, in the matter of defences to actions on formal contracts. In all cases, where, formerly, a defendant was obliged to apply to equity for relief against an unconscionable plaintiff, he may now defeat his adversary at law. But the change of forum does not mean any change in the essential character of the relief. The common law accomplishes, by peremptorily barring the action, the same result, and upon the same grounds, that the Chancellor effected by a permanent unconditional injuncdeeds as soon as they are at liberty and signify the fear they were under to their nearest neighbors and to the coroner; and if they do not reclaim such deeds by plaint within the year and day, the deeds shall be valid." See also I Nich. Britt. 223; Bract 16, b, 17; 2 Bract. N. B. Nos. 182, 200; 3 Bract. N. B. Nos. 1643, 1913. 1 Fairbanks v. Snow, 145 Mass. 152, 154.

2 Y. B. 8 Hen. VI. 7-15, per Martin, J. Duress was not admissible under a plea of non est factum. Y. B. 7 Ed. IV. 5-15; Y. B. 1 Hen. VII. 15, b−2; Y. B. 14 Hen. VIII. 28, a-7; Whelpdale's Case, 5 Rep. 119. On the same principle, a feoffinent under duress was effectual as a transfer of the seisin. Y. B. 2 Ed. IV. 21-16; Y. B. 18 Ed. IV. 29-27.

3 Y. B. 45 Ed. III. 6–15 (semble); Anon. Keilw. 154, pl. 3; Fairbanks v. Snow, 145 Mass. 152.

4 Duncan v. Scott, 1 Camp. 100 (semble); Beals v. Neddo, 1 McCrary, 206; Hogan v. Moore, 48 Ga. 156; Lane v. Schlemmer, 114 Ind. 296; Bank v. Butler, 48 Mich. 192; Briggs v. Ewart, 51 Mo. 249 (semble); Clark v. Pease, 41 N. H. 414. Similarly a grantor under duress cannot recover his property if the wrong-doer has conveyed it to an innocent purchaser. Rogers v. Adams, 66 Ala. 600; Deputy v. Stapleford, 19 Cal. 302; Bazemore v. Freeman, 58 Ga. 276; Lane v. Schlemmer, 114 Ind. 296; Mundy v. Whittemore, 15 Neb. 647; Schroader v. Decker, 9 Barr, 14; Cook v. Moore, 39 Tex. 255; Tallay v. Robinson, 22 Grat. 888.

tion. It is as true to-day as it ever was, that fraud, payment, and the like, do not nullify the title of the fraudulent or paid obligee, but are simply conclusive reasons why he ought not to enforce his title.

The truly equitable or personal character of these defences at law has commonly only a theoretical value in actions upon the ancient common-law specialty, the instrument under seal.1 But it is of the highest practical importance in actions upon the modern mercantile specialty, the bill of exchange or promissory note.2 For the legal title to bills and notes, by reason of their negotiability, passes freely from hand to hand, and equity would not restrain, by injunction, any holder from enforcing his title, if he came by it honestly and for value. And the plea at law being, in substance, like the bill in equity for an injunction, we see at once the reason for the familiar rule that fraud and other defences, based upon the conduct of the payee or some other particular person, cannot be successfully pleaded against any bona fide holder for value.

James Barr Ames.

1 But the equitable nature of these defences explains the right of an innocent obligee to recover in covenant even though the defendant was induced to execute it by the improper conduct of a third person.

2 Because assumpsit would lie upon them, the notion became current that bills and notes were simple contracts. In Scotland, and in Europe generally, a bill or note is recognized to be a literarum obligatio, and the logic of facts is sure to compel, eventually, a similar recognition in England and this country.

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