Page:Harvard Law Review Volume 9.djvu/81

53 SPECIALTY CONTRACTS AND EQUITABLE DEFENCES. 53 to find that the rule was the same as to failure of consideration. The doctrine is explicitly stated by Bracton : " Nee habebit excep- tionem pecuniae non numeratae contra scripturam." ^ A case of the time of Henry VI.^ illustrates pointedly the purely equitable nature of the obligor's relief, and also the possibly limited scope of that rehef. 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 accord- ingly 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 obhgors could make use of the statutory equitable plea of failure of consider- ation, which was an absolute bar to the action. The English rule against the admissibility of failure of consider- ation 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.^ 1 Bracton, 100, b. 2 Y. B. zi Hen. VI. 13-3. 8 See also Savell v. Romsden (Ed. VI.), i Cal. CI. cxxxi; Tourville v. Naish, 3 R Wms. 307. Williams, 3 Blackf. 170, 171 ; Fitzgerald v. Smith, i 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, i Bay, 278 ; Adams v. Wylie, I N. & Mc. 78; Tunno v. Fludd, i McC. 121 ; and in Pennsylvania, McCulloch v. McKee, 16 Pa. 289. fi The framers of the New York statute, 2 Rev. St. 406, § 77, seem not to have dis- criminated between the failure of an expected consideration, and the absence of a con- sideration 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.
 * Hartshorn v. Day, 19 How. 211, 222 ; Leonard v. Bates, i Blackf. 172 ; Huston v.