Page:Harvard Law Review Volume 9.djvu/80

52 52 HARVARD LAW REVIEW, 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.^ 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.^ But if the spe- cialty 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 im- moral 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.* 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 unmistak- able 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 jurisdictiofieju." This decision, being before the Revolu- tion, 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, i Har. & G. 324, 416; Edelin v. Sanders, 8 Md. 118, 131 ; Dorsey v. Monnett (Md. 1890), 20 Atl. R. 196; Partridge e/. Messer, 14 Gray, 180; Milli- ken V. Thorndike, 103 Mass. 382 ; Stubb v. King, 14 S. & R. 206, 208 ; McCulloch v. McKee, 16 Pa^ 289; Phillips z/. Potter, 7 R. 1. 289; Grayz/. Hankinson, i 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, i Lev. 209, Hard. 464, s. c. 8 Macrowe's Case (1585), Godb. 29, pi. 38; Brook v. King (1588), i Leon, y^', Jones's Case, i Leon. 203 ; Oldbury v. Gregory (1598), Moore, 564 {semble) ; Jenk. Cent. Cas. 108; Law v. Law (r73S)> Cas. t. Talb. 140. See also Andrews v. Eaton (1729), Fitzg. TT^', Downing v. Chapman {1765), 9 East, 414, n. (a). 4 Tothill (ed. 1649), 26, 26, 27, 27 ; Tothill (ed. 1671), 27, 81, 84, 86; i Vern. 348, 411, 412, 475 ; 2 Vern. 70, 291, 652, 764 ; Blackwell v. Redman, i Ch. Rep. 88 ; Hall v. Potter, 3 Lev. 411 ; Kemp v. Coleman, i Salk. 156 ; Law v. Law, 3 P. Wms. 391 ; Raw- den V. Shadwell, Amb. 269 ; Newman v. Franco, 2 Anst. 519; Andrew «/. Berry, 3 Anst, 634; Harrington v. Duchatel, i Bro. C C. 124. ^ 2 Wils. 341.