Page:Harvard Law Review Volume 9.djvu/83

55 SPECIALTY CONTRACTS AND EQUITABLE DEFENCES. 55 he declined to issue a subpoena in the case before him, as it con- cerned a record obligation, and reserved his judgment as to what should be done in the case of a specialty.^ But the common course of relieving the obligor of a paid specialty was adhered to,^ and was later extended to the case of the paid record obligation.^ In 1707, by St. 4 & 5 Anne, c. 16, § 11, payment without a release was made a valid legal defence. Accord and Satisfaction. — From time immemorial the accept- ance of anything in satisfaction of the damages caused by a tort would bar a subsequent action against the wrong-doer.* Accord and satisfaction was, likewise, a bar to an action for damages aris- ing from a breach of a covenant.^ But if the covenant was of such a nature as to create a debt, the creditor's right to maintain an action at law was in no wise affected, although he might have received, in satisfaction of the debt, property far exceeding in value the amount due by the specialty.^ ** There is a difference where a duty accrues by the deed in certainty, tempore co7ifectionis scripti, as by covenant, bill, or bond to pay a sum of money ; there this certain duty takes its essence and operation originally and solely by the writing; and therefore it ought to be avoided by a matter of as high a nature, although the duty be merely in the personalty. But where no certain duty accrued by the deed, but a wrong or de- fault subsequent together with the deed gives an action to recover damages, which are only in the personalty ; for such wrong or de- 1 Y. B. 22 Ed. IV. 6-18. 2 Y. B. 7 Hen. VII. 12-2 ; Doct. & St., Dial. I. c. 12, Dial. II. c .6; Cavendish v. Forth, Toth. 90 ; Dowdenay v. Oland, Cro. El. 708; Huet v. De la Fontaine, Toth. 273. In the Treatise on Subpoena in the appendix to Doct. & St. (i8th Ed.) the practice of giving equitable relief to the obligor is vigorously attacked by a Sergeant-at-law, who says ; " I marvel much what authority the Chancellor hath to make such a writ in the king's name, and how he dare presume to make such a writ to let [hinder] the king's subjects to sue his laws, the which the king himself cannot do righteously ; . . . and so meseemeth that such a suit by a subpoena is not only against the law of the realm, but also against the law of reason. Also, meseemeth, that it is not comformable to the law of God. For the law of God is not contrary in itself, /. e. to say one in one place and contrary in another place." 8 Clethero v. Beckingham, Toth. 276. Andrew v. Boughey, Dy. 75, pi. 23. 6 Blake's Case, 6 Rep. 43, b., Cro. Jac. 99 s. c. ; Eeles v. Lambert, Al. 38 ; Spence v. Healey, 8 Ex. 668 ; Mitchell v. Hawley, 4 Den. 414. 6 Preston v. Christmas, 2 Wils. ^6 ; Mussey v. Johnson, i Ex. 241 ; Steeds z/. Steeds, 22 Q. B. D. 537 ; Savage v. Blanchard, 148 Mass. 348, 350 ; Mitchell v. Hawley, 4 Den. 414.
 * Anon. Y. B. 21 & 22 Ed. I. 586; Y. B. Hen. VI. 25-13; Y. B. 34 Hen. VI. 43-44;