50 HARVARD LAW REVIEW, injustice of allowing the obligor to profit at the expense of the obligee by the mere accident of the loss of the obligation is ob- vious. But this ethical consideration was irrelevant in a court of common law. It did finally prevail in Chancery, which, in the seventeenth century, upon the obligee's affidavit of the loss or de- struction of the instrument, compelled the obligor to perform his moral duty.^ A century later the common-law judges, not to be outdone by the chancellors, decided, by an act of judicial legisla- tion, that if profert of a specialty was impossible by reason of its loss or destruction, the plaintiff" might recover, nevertheless, upon secondary evidence of its contents. ^ The difference between the ethical attitude of equity and the un- moral (not immoral) attitude of the common law in dealing with specialty contracts appears most conspicuously in the treatment of defences founded upon the conduct of the obligee. As the obli- gee, who could not produce the specialty, was powerless at com- mon law against an obligor, who unconscionably refused to fulfil his promise, so the obligor who had formally executed the instru- ment was, at common law, helpless against an obligee who had the specialty, no matter how reprehensible his conduct in seeking to enforce it. On the other hand, as equity enabled the owner of a lost obligation to enforce it against an unjust obligor, so also would the Chancellor furnish the obhgor with a defence by enjoin- ing the action of the obligee, whenever it was plainly unjust for him to insist upon his strict legal right. Let us examine the usual defences in the light of the authorities. 1 Equity seems to have proceeded rather cautiously in giving relief in the case of lost obligations. In 1579 an obligee obtained a decree against an obligor who had wrongfully obtained the specialty. Charnock v. Charnock, Tothill, 267. See also King 2/. Hundon (1615), Hob. 109; Barry v. Style (1625), Latch, 24; Abdee's Case (1625), Latch, 146. In 1625, in Anon. Poph. 205, Latch, 148, s. c, Doderidge, J., said : " The grantee of the rent -charge, having now lost his deed, can have no remedy in equity, for in this case equitas sequitur legem.^^ Jones, J., and Whitlock, J., were of the same opinion ; Doderidge, J., then added : " If the grantee had lost the deed by a casual loss, as by fire, &c., in such a case he shall have remedy in equity." See to the same effect, Barry v. Style, Latch, 24, per,Jones, J., and Abdee's Case, Latch, 146. The earliest reported cases of equitable relief upon lost specialties belong to the last half of the seventeenth century. Underwood v. Staney, i Ch. Cas. 77 ; Collet v. Jaques, i Ch. Cas. 120; Anon, i Ch. Cas. 270; Lightlove v. Weeden, i Eq. Ab. 24, pi. 7 ; Sheffield z/. Castleton, i Eq. Ab. 93, pi. 6. 2 Read v. Brookman, 3 T. R. 151. This case was wholly without precedent at com- mon law, was opposed to the opinion of Lord Hardwicke as expressed in Atkins v. Farr, 2 Eq. Ab. 247 ; Walmesley v. Child, i Ves. 341, 345 ; and Whitfield v. Fausset, I Ves. 387, 392, and did not commend itself to Lord Eldon in Ex parte Greenway, 6 Ves. 811, 812 ; Princess of Wales v. Liverpool, i Sw. 114, 119.
