Page:Harvard Law Review Volume 9.djvu/77

49 SPECIALTY CONTRACTS AND EQUITABLE DEFENCES. 49 SPECIALTY CONTRACTS AND EQUITABLE DEFENCES. IT has been often said that a seal imports a consideration, as if a consideration were as essential in contracts by specialty as it is in the case of parol promises. But it is hardly necessary to point out the fallacy of this view. It is now generally agreed that the specialty obligation, like the Roman stipulation owes its validity to the mere fact of its formal execution. The true nature of a specialty as a formal contract was clearly stated by Bracton : — " Per scripturam vero obligatur quis, ut si quis scripserit alicui se debere sive pecunia numerata sit sive non, obligatur ex scriptura, nee habebit exceptionem pecuniae non numeratae contra scripturam, quia scripsit se debere." ^ Bracton's statement is confirmed by a decision about a century later. The action was debt upon a covenant to pay £QO to the plaintiff upon the latter's marrying the defendant's daughter. It was objected that this being a debt upon a covenant touching marriage was within the jurisdiction of the spiritual court. But the common-law judges, while conceding the exclusive jurisdiction of the spiritual court if the promise had been by parol, gave judg- ment for the plaintiff, because this action was founded wholly upon the deed.^ In another case it is said : " In debt upon a contract the plaintiff shall show in his count for what consideration (cause) the defendant became his debtor. Otherwise in debt upon a specialty (obligation) y for the specialty is the contract in itself" ^ The specialty being the contract itself, the loss or destruction of the instrument would logically mean the loss of all the obligee's rights against the obligor. And such was the law. ** If one loses his obligation, he loses his duty." * " Where the action is upon a specialty, if the specialty is lost, the whole action is lost." ^ The 1 Bracton, 100, b. « Y. B. 45 Ed. III. 24-30. To the same effect, Fitz. Ab. Dett. 166 (19 Rich. IL). 8 Bellewe (ed. 1569) 11 1 (8 Rich. II.). fi Y. B. 24 Ed. III. 24-1, per Shardelowe, with the approval of Stonore, C. J., and Wilughby, J. To the same effect, Y. B. 3 Ed. III. 31, b-i ; Y. B. 4 Hen. IV. 17-14; Y. B. 4 Hen. VI. 17-1 ; Y. B. 19 Hen. VI. 6-11. 7
 * Y. B. 27 Hen. VI. 9-1, per Danby.