Sec 495

An exception at common law is recognized in cases of documents under seal. The solemnity of such an obligation is a guarantee, so it is argued, that it is deliberately made, and to deny it validity would be dency arose in the later middle ages, and suits on informal contracts were sustained. - "It is in the nature of things," says a reviewer of Seuffert, in the Kritische Vierteljahrschrift for 1881, p. 505, "that forms which at one period are natural, necessary, and convenient, in later times should appear arbitrary, superficial, and obstructive. In the Roman law the stipulation would not have been regarded as the normal form of contract had not in early Roman business life the habit arisen to clothe all business dealings in the form of question and answer." A contract not so framed was {as a rule, subject to some exceptions) a nudum pactum. But gradually, so it is shown, when other habits of business and manners grew up, the Roman law approached the rule that good faith was to be the test; that is, want of form, when this was not a note of fraud, did not affect validity. From this came a reaction. It was found that to dispense with all forms led to fraud, and hence came legislation like our own statute of frauds. A similar process, Seuffert tells us, existed in Germany. First no contracts except in the prescribed form were valid. Then all forms were dispensed with. Then, to prevent frauds and perjuries for certain important transactions, certain forms were prescribed. But in German as well as in Roman law, the nudum pactum is not the contract without consideration, but the contract without the prescribed form.

Exception as to promise under seal.

1 1 Ch. on Con. 11th Am. ed. 59; Bret v. J. S. & Wife, Cro. Eliz. 755; Duvoll v. Wilson, 9 Barb. 487; Pennington v.. Gittings, 2 Gill & J. 208; infra, sec 540; as to executed gifts, see infra, sec 496.

2 Infra, sec 514; Roscorla v. Thomas, 3 Q. B. 234; Tuttle v. Brown, 4 Gray, 457; Vincent v. Leland, 100 Mass. 432; Wilmot v. Hurd, 11 Wend. 584, and other cases cited Benj. on Sales, 3 Am. ed. sec 610.

3 Benj. on Sales, 3d Am. ed. sec 49; Cook v. Oxley, 3 T. R. 653, cited supra, sec 13; Abbott v. Shepherd, 48 N. H. 16; Boston etc. R.R.v. Bartlett,3Cush. 224.

4 Supra, sec 13.

5 Sanderson v. Brown, 57 Me. 313; Bartholomew v. Jackson, 20 Johns. 28; infra, sec 514, 709.

6 See infra, sec 528.

7 Hale v. Rice, 124 Mass. 292, and other cases cited infra, sec 513.

to deny the right of a party deliberately to dispose of his effects.1 - In some of our states the distinction between sealed and unsealed obligations is now obliterated,2 and in others, as will be presently seen, the rules of equity in this respect are adopted as part of the common law. - Illegality of consideration, and impossibility of performance, may be set up as a defence to a speciality as fully as it can be to a suit on an unsealed instrument.3 - In equity, while a contract under seal without consideration is regarded as so far binding that a suit on it will not be enjoined,4 its specific performance will not be compelled.5 - In distributing assets, a creditor holding a voluntary bond is postponed to creditors for value;6 though he ranks ahead of legatees and all others except creditors for value.7 In those states where equitable defences can be made at common law this rule applies to suits at common law.8 But

1 Infra, sec 680 et seq.; Sharington v. Stratton, Plowd. 308; Cooch v. Goodman, 2 Q. B. 580; Lister v. Hodgson, L. R. 4 Eq. 30; Page p. Trufant, 2 Mass. 159; Aller v. Aller, 40 N. J. L. 446; Burkholder v. Plank, 69 Penn. St. 225; Harris v. Harris, 23 Grat. 737; Hannon v. State, 9 Gill, 440; Caldwell v. Williams, 1 Bailey Eq. 175; M'Cut-chen v. M'Cutchen, 9 Port. 650. That a sealed release without consideration discharges a debt, see infra, sec 682; Lee v. R. R., L. R. 6 Ch. Ap. 527; Bender v. Sampson, 11 Mass. 42; Schuylkill Nav. Co. v. Harris, 5 W. & S. 28.

2 Mete, on Cont. 162; Ortman v. Dixon, 13 Cal. 33. As to New Jersey, see Aller v. Aller, 40 N. J. L. 446; and see infra, sec 680.

3 Supra, sec 300 et seq.; sec 335 et seq.

4 Supra, sec 493; Adams Eq. 78; 1 Fonbl. Eq. B. 1, ch. 5, sec 1.

5 Leake, 2d ed. 609; Bisp. Eq. sec 372; Jefferys v. Jefferys, 1 Cr. & P. 138; Lister v. Hodgson, L. R. 4 Eq. 30; Kekewich v. Manning, 1 D. M. G. 176; Willard v. Taylor, 8 Wal. 557; Seymour v. Delaucy, 6 Johns. Ch. 222;.

Case v. Boughton, 11 Wend. 106; Hays v. Kershaw, 1 Sandf. Ch. 258; Sherman v. Wright, 49 N. Y. 231; Solomon v. Kimmel, 5 Binn. 232; Bayler v. Com., 40 Penn. St. 37; Smoot v. Rea, 19 Md. 398; Walker v. Walker, 13 Ired. 335; Matlock v. Gibson, 8 Rich. L. 437; Martin v. Iron Works, 35 Ga. 320.

6 Ellison v. Ellison, 6 Ves. 656; Col-man v. Sarel, 3 Bro. C. C. 12; Hatch v. Bates, 54 Me. 136. As to frauds on creditors, see supra, sec 376-7.

7 Dawson v. Kearton, 3 Sm. & G. 186, where a promissory note without consideration took priority over legatees; Candor's App., 27 Penn. St. 119.

8 Swift v. Hawkins, 1 Dall. 17; Carpenter v. Graff, 5 S. & R. 162; McCul-loch v. McKee, 16 Penn. St. 289; Leonard v. Bates, 1 Blackf. 173. That in equity the consideration of a sealed contract can be overhauled, see Lowe v. Peers, 4 Burr, 2225; Emmens v. Littlefield, 13 Me. 233; Ely v. Wolcott, 4 Allen, 506; Treadwell v. Buckley, 4 Day, 395; Farnum v. Burnett, 21 N. J. Eq. 87; Strawbridge v. Cartledge, 7 W. & S. 394; Hoeveler v. Mugela, 66 even in Pennsylvania, where equitable defences are admissible in common law suits, mere want of consideration is no defence, as between the parties, to a suit on a bond, unless fraud or imposition of some sort be alleged. A gift made in this way cannot, as between the parties, be recalled. It is otherwise, however, as to a bond not meant as a gift, the consideration of which fails.1.