This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
If the original obligation was under seal, a distinction seems to have been drawn between the so-called single bonds which were unconditional obligations and the bonds which were given upon condition.1 If the sealed obligation was unconditional, payment without a specialty2 - that is, without a quittance under seal3 - or as it was said in an earlier case, without "either a writing or a tally,"4 was inoperative and the obligee could maintain an action upon the sealed instrument, to which action such payment would not be a defense. This result was justified by the court on the ground of the solemnity of the sealed instrument and the danger which would follow if its obligation could be avoided by oral evidence.5 The rule that payment did not operate as a discharge of an unconditional obligation under seal was carried to such an extent that the obligee was allowed to enforce the obligation although he had surrendered it to the obligor, provided the obligee had regained possession of it at a later time, no matter how wrongfully.6
7 Thompson v. Laughlin, 91 Cal. 313, 27 Pac. 752; Marks v. Willis, 36 Or. 1, 78 Am. St. Rep. 752, 58 Pac. 526.
9Robinson v. McDowell, 125 N. Gar. 337, 34 S. £. 550; Rollins v. National Casket Co., 40 W. Va. 590, 21 S. E. 722.
11 Dyer 25b (160).
2Y. B., 22 Ed. 4, 51 pi 8; Etnam v. Tottam, Croke Eliz. 157.
3 48 Ed. 3, 2 pl. 6; 1 Dyer 25b (160); Chamberlayn v. Nichols, Croke Eliz. 455; Nichol'B Case, 5 Coke 43a.
4Y. B., 20 Ed. 1, 304 (Horwood's translation).
5 "And in account upon receipt by indenture, the defendant shall not plead against it unques eon receiver, etc And in a writ of annuity, payment is plea, if it be granted out of the land, otherwise not. 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." Waberley v. Cockerel, 1 Dyer 51a (12, 15).
If the obligation were a penal bond given upon condition, an action could not be maintained upon such bond without showing a breach of such condition; and accordingly it was said that payment would be a sufficient defense, since it would show that the condition had not been broken.7
The conduct of an obligee in enforcing payment of a sealed obligation a second time was immoral and unethical; and after some hesitation equity interfered and enjoined the obligee from enforcing a sealed obligation under such circumstances.8 Belief of this sort was given in equity upon the oath of the party and not by witnesses.9
The rule that payment of a judgment or an obligation under seal could not be shown at common law worked so unjustly when it had any effect except that of driving the debtor to seek relief in equity, that the entire doctrine was finally abolished by legislation and the opposite rule, permitting payment to be shown at law in actions of this sort, was established.10
6Y. B., 5 Hen. 4, 2 pl. 6; Waberley v. Cockerell. 1 Dyer 51, pl. 12; Cross v. Powell, Croke Eliz. 483; Licey v. Licey, 7 Barr. 251 (obiter).
71 Dyer 25b (160).
While the court enforced a covenant which purported to bind the obligor for the payment of forty pounds on breach of the remaining covenants in the indenture, the reporter noted that apparently the opposite result had been reached at the same term, and that this question was likely to be a matter of law in the King's Bench. 1 Dyer 6a (3).
8 Anonymous, Cary 2; Cavendish v. Forth, Toth. 24 (p. 28); Huet v. De la Fountaine, Toth. 148 (p. 175); Dow-denay v. Oland, Croke Eliz. 768.
9 Anonymous, Cary 2.
10 "And be it further enacted by the authority aforesaid, That from and after the said first day of Trinity term, .where any action of debt shall be brought upon any single bill, or where action of debt, or scire facias, shall be brought upon any judgment, if the defendant hath paid the money due upon such bill or judgment, such payment shall and may be pleaded in bar of such action or suit; and where an action of debt is brought upon any bond which hath a condition or defeasance to make void the same upon payment of a lesser sum at a day or place certain, if the obligor, his heirs, executors, or administrators, have, before the action brought, paid to the obligee, his executors or administrators, the principal and interest due by the de-fcazance or condition of such bond, though such payment was not made strictly according to the condition or defeazance, yet it shall and may nevertheless be pleaded in bar of such action, and shall be as effectual a bar thereof, as if the money had been paid at the day and place, according to the condition or defeazance, and had been so pleaded." 4 Anne, ch. XVI, Sec. 12.