Page:Harvard Law Review Volume 9.djvu/79

51 SPECIALTY CONTRACTS AND EQUITABLE DEFENCES. 5 I Fraud, — Startling as the proposition may appear, it is never- theless true that fraud was no defence to an action at law upon a sealed contract. In 1835, '^"^ Mason v. Ditchbourne,^ 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 ?7. Campbell,^ Byles, J, remarking: " Surely, though you shewed the transaction out of which it arose to have been fraudulent, yet in an action at laWy 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 injunc- tion against an action upon a specialty got by fraud. ^ In the United States there are numerous decisions disallowing the defence of fraud in an action at law upon a specfalty.* This is still the rule in the Federal courts, and was applied in 1894.^ 1 I M. & Rob. 460, 2 C. M. & R. 720 n. (a) s. c. 2 2 F. & F. 393. See also Bignold v. Bignold, i 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. Connecticut Co., 42 Fed. R. 760; Vandervelden v. Chicago Co., 61 Fed. R. 54; Ken- nedy V. Kennedy, 2 Ala. 571, 592; Halley v. Younge, 27 Ala. 203; White v. Watkins, 23 111. 480, 482, 483; Gage V. Lewis, 68 111. 604, 613; Huston v. Williams, 3 Blackf. 170 ; Scott V. Perrin, 4 Bibb, 360 ; Montgomery v. Tipton, i Mo. 446 ; Burrows v. Alter, 7 Mo. 424 ; Rogers v. Colt, i Zab. 704 ; Stryker v. Vanderbilt, i 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; P'ranchot v. Leach, 5 Cow. 506; Cham- pion V- White, 5 Cow. 509 ; Dale v. Roosevelt, 9 Cow, 307 ; Belden v. Davies, 2 Hall, 433: Guy V. McLean, i Dev. 46; Greathouse v. Dunlap (Ohio), 3 McL. 302, 306; Wyche v. Macklin, 2 Rand. 426. fi Vandervelden v. Chicago Co., 61 Fed. R. 54.
 * Hartshorn v. Day, 19 How. 211, 222 ; George v. Tate, 102 U. S. 564 ; Shampean v.