Page:Harvard Law Review Volume 9.djvu/82

54 54 ' HARVARD LAW REVIEW, Payment. — How completely ethical considerations were ignored by the common-law judges in dealing with formal contracts, is shown by the numerous cases deciding that a covenantor who had paid the full amount due, but without taking a release, must, never- theless, pay a second time, if the obligee was unconscionable enough to bring an action on the specialty.^ Nay, more, even though the specialty was upon payment surrendered to the obligor, the latter was still not safe unless he cancelled or destroyed the specialty. For, if the obligee should afterwards get possession of the instru- ment, even by a trespass, the obHgor, notwithstanding the payment, the surrender, and the trespass, would have no defence to an action at law by the obligee, " because of the mischief that would befall the plaintiff if one should be received to avoid an obligation by such averment by bare words, and also because there is no mischief to the defendant if his plea be true, since he may have a writ of Tres- pass for the carrying off of the obligation, and recover damages for the loss sustained in this action." ^ As in the case of fraud and illegality, so in the case of payment. Equity at length gave relief to the obligor by restraining actions at law. In 1483, Chancellor Rotheram asked the advice of the judges as to the propriety of issuing an injunction against the recognizee in a statute-merchant which had been paid by the re- cognizor. The judges were opposed to the injunction, Hussey, C. J., saying: " It is less of an evil to make obligors pay a second time for their negligence than to disprove matter of record or specialty by two witnesses." The Chancellor remarked that it was the common course in Chancery to grant a subpoena in the case of a specialty. In the end, however, in deference to the judges, 1 " And although the truth be, that the plaintiff is paid his money, still it is better to suffer a mischief to one man than an inconvenience to many, which would subvert a law; for if matter in writing may be so easily defeated and avoided by such surmise and naked breath, a matter in writing would be of no greater authority than a matter of fact." Dy. 51, pi. 15, See to the same effect, Anon. (1200) 2 Rot. Cur. Reg. 207 ; Y. B. 20 & 21 Ed. I. 305 ; Y. B. 5 Ed. III. 63-106 ; Y. B. 20 Hen. VI. 28-21 ; Y. B- 22 Ed. IV. 51-8; Anon. (1537) Dy. 25, pi. 60; Nichol's Case (1565), 5 Rep.43, Cro. El. 455 s. c. ; Kettleby v. Hales (1684), 3 Lev. 119; Mitchell v. Hawley, 4 Den. 414, 418, and the cases cited in the next note. 2 Y. B. 5 Hen. IV. 2-6 ; Y. B. 22 Hen. VI. 52-24 ; Y. B. 37 Hen. VI. 14-3 ; Y. B- 5 Ed. IV. 4-10 ; Y. B. I Hen. VII. 14-2 ; Waberley v. Cockerell, Dy. 51, pL 12 ; Cross v Powell, Cro. El. 483 ; Atkins v. Farr, 2 Eq. Ab. 247 ; Licey v. Licey, 7 Barr, 251, 253" In the last case Gibson, C. J., said : " Even if a bond, thus delivered [to the obligor] but not cancelled, come again to the hands of the obligee, though it be valid at law, the obligor will be relieved in equity."