Merger. Estoppel by deed. Release and alteration of deed. contract under seal, the period of limitation is, in general, twenty years; where it arises out of a simple contract, the period, in general, is six years (a). There are some peculiar doctrines affecting contracts under seal which it is sufficient here merely to mention. A contract under seal being considered as of a higher nature than a simple contract operates in law in merger of a simple contract on the same matter; that is to say, if a bond or covenant under seal is given to secure a simple contract debt, the simple contract security is merged in the contract under seal and is thereby extinguished, according to a general rule of law that a party, by acquiring a security of a higher nature in legal operation than the one he already possesses, merges and extinguishes his legal remedies upon the minor security (b). The doctrine of estoppel applies to all the recitals and statements made by a party in a deed under his hand and seal, and by virtue of it such recitals and statements are held conclusive against the party, and he is estopped from denying their truth, in any legal proceedings taken upon the deed between the same parties and in the same right, or those claiming through them; but the estoppel does not extend to proceedings or purposes collateral to the deed (c). A contract under seal can be released, rescinded, or altered only by deed (d). proceedings of a Court of Record. A record is conclusive proof of its contents, and no averment or evidence is admissible to contradict it. But the existence of a record may be denied; and the fact so disputed is then tried, not as facts ordinarily are tried by jury, but by inspection of the rolls of the Court, in order to see whether there is such record as is alleged and what are its contents (a). The enrolment or entry in the roll of the Court is essential to constitute the record and to give it its peculiar efficacy (b). Contracts by record comprise Judgments, Recognizances, and Statutes merchant and staple. The judgment of the Court in an action, when final, is Judgments entered upon the roll of the Court containing the record of the action. Where the judgment decides that the plaintiff shall recover against the defendant a certain sum of money as debt, or damages, or costs of suit, a contract is created by the judgment whereby the defendant is bound to pay that sum. So, where judgment is given for the defendant, and a sum of money is awarded by the judgment to be paid by the plaintiff to the defendant for his costs of suit, the judgment creates a contract for the payment of that sum (c). A judgment, being a simple mode of embodying a contract, attended with easy proof and convenient remedies, is sometimes used for that purpose by agreement between the parties without any previous litigation; also, where a suit has been commenced and is pending, the parties may come to an agreement respecting the entry up of judgment, and the terms on which it is to be enforced. A warrant of attorney is an instrument in writing, usu- Warrant of ally under seal (7), giving authority to enter up judgment attorney. against the party executing it, without process; it is commonly made subject to a defeasance prescribing the terms and conditions upon which the judgment may be entered Co. Rep. 26 a; Blake's case, 6 Co. (a) 3 Bl. Com. 331; Co. Lit. 117 b; 260 a; as to what are Courts of Record, see ib.; Reg. v. Hughes, L. Rep. 1 P. C. 81, 87. (b) Glynn v. Thorpe, 1 B. & Ald. 153. (c) 2 Bl. Com. 465. (d) It need not be under seal, except as to an authority to release errors. Kinnersley v. Mussen, 5 Taunt. 264; Brutton v. Burton, 1 Chit. 707. actionem. Cognovit and execution taken out. A cognovit actionem is a an instrument in writing, confessing the cause of action in a pending suit, which authorizes the plaintiff to obtain judgment; it may also be made subject to terms and conditions controlling its application. The judgment, whether given with the consent of the parties or in invitum, must be entered according to the forms and course of procedure of the Court in which it is entered up, and is accompanied with the regular incidents and consequences of a judgment; but a warrant of attorney or cognovit actionem authorizing the entering up of a judgment may be made subject to any terms or conditions which the parties agree upon as to the entering up of the judgment and putting it into execution, and thus create a binding contract between the parties which in effect modifies and controls the judgment and the execution upon it according to the terms of the instrument (a). These instruments are subject to certain statutory regulations. The statute 1 & 2 Vict. c. 110, s. 9 enacts" that no warrant of attorney or cognovit actionem given by any person shall be of any force, unless there shall be present some attorney of one of the superior Courts on behalf of such person, expressly named by him and attending at his request, to inform him of the nature and effect of such warrant or cognovit before the same is executed; which attorney shall subscribe his name as a witness to the due execution thereof, and thereby declare himself to be attorney for the person executing the same and state that he subscribes as such attorney." By the statute 3 Geo. IV. c. 39, ss. 1, 2, 3, a warrant of attorney or cognovit actionem, and the judgment and execution thereon, is to be deemed fraudulent and void against the assignees in bankruptcy of the party executing it, unless it shall have been filed under that Act within the space of twenty-one days from the execution thereof, or unless judgment shall have been signed or execution issued on it within the same period (b). And by the same statute, s. 4, "If such warrant of attor(b) See 12 & 13 Vict. c. 106, s. 136. (a) See Wentworth v. Bullen, 9 B. & C. 840, 848. ney or cognovit shall be given subject to any defeasance or condition, such defeasance or condition shall be written on the same paper or parchment on which such warrant of attorney or cognovit actionem shall be written before the same shall be filed, otherwise such warrant of attorney or cognovit actionem shall be null and void to all intents and purposes.' This section is interpreted as rendering the instrument void only against the assignees in bankruptcy, like the former sections, and not void between the parties to it (a). dies on A judgment may be enforced by taking out execution ac- The remecording to the regular course of procedure. In the superior judgments, courts execution may, in general, issue within six years from execution. the recovery of the judgment without a revival of it; but after the lapse of that interval, or upon the death of either of the parties, the judgment must be revived before execution can regularly issue (b). A judgment may also be treated as a distinct contract on Action on which a new action may be brought (c). An action of debt judgment. would formerly lie upon a judgment of the ancient county courts (); but it is held that an action will not lie upon a judgment of a county court established by 9 & 10 Vict. c. 95, because such an action would be inconsistent with, and defeat the provisions of that statute as to the remedy on the judgment (e); nor can an action be brought in a county court on a judgment of a superior court (f). A decree of a court of equity to pay a sum of money founded on equitable grounds only, as a decree in a suit for the specific performance of an agreement, does not create a contract on which an action at law will lie (g). The judgments of (a) Morris v. Mellin, 6 B. & C. 446, Holroyd, J., dissentiente; Bennett v. Daniel, 10 B. & C. 500, Parke, J., dissentiente; see Bryan v. Child, 5 Ex. 368. As to warrants of attorney and cognovits see 2 Chitty's Practice, 12th ed., 942, 949; Dixon's Lush's Practice, p. 800. (b) C. L. P. Act, 1852, s. 128. The mode of reviving a judgment is by writ of revivor or by a suggestion entered upon the roll. C. L. P. Act, 1852, s. 129. (c) Williams v. Jones, 13 M. & W. 628, 633, 634. (d) Read v. Pope, 1 C. M. & R. 302; Williams v. Jones, 13 M. & W. 628. (e) Berkeley v. Elderkin, 1 E. & Effect of action. foreign courts (including Irish, Scotch, and colonial judgments) are not records in this country and have not the same effect; but where they establish a debt between the parties an action may be brought to recover the amount as a simple contract debt (a). The right to bring a new action upon a judgment is qualified by the statute 43 Geo. III. c. 46, s. 4, which enacts "that in all actions upon any judgment recovered, the plaintiff in such action on the judgment shall not recover or be entitled to any costs of suit, unless the Court in which such action on the judgment shall be brought, or some judge in the same Court shall otherwise order." Such an order will not, in general, be made where the plaintiff might have realized his judgment by execution or otherwise (b). The record of a judgment is conclusive as to its contents; consequently, in an action on a judgment, matter forming ground of error in the judgment cannot be pleaded by way of defence (c); nor can the pendency of proceedings in error be pleaded in bar to an action on a judgment (d); but the record may be amended or set aside by the Court which made it, or by the Court of error, upon sufficient grounds and upon regular proceedings being taken for that purpose (e). A judgment merges or extinguishes the cause of action judgment on which it is founded. "If there be a breach of contract in merger of the cause of or wrong done or any other cause of action by one against another, and judgment be recovered in a court of record, the judgment is a bar to the original cause of action, because it is thereby reduced to a certainty and the object of the suit attained so far as it can be at that stage, and it would be useless and vexatious to subject the defendant to another suit for the purpose of obtaining the same result; hence the legal maxim, transit in rem judicatam'—the cause of ac derson, 6 Q. B. 288, 296; Henley v. (a) See ante, p. 74. (b) Hanmer v. White, 12 M. & W. 519; Adams v. Ready, 6 H. & N. 261; Dickinson v. Angell, 3 B. & S. 840; 32 L. J. Q. B. 183; and see further as to this section 1 Chitty's Practice, 12th ed., 494: Lush's Prac tice by Dixon, 897. (c) Dick v. Tolhausen, 4 H. & N. 695. (d) Snook v. Mattock, 5 A. & E. 239, 248; Riddle v. Grantham Canal Nav., 16 M. & W. 882. (e) Per Lord Mansfield, C.J., 2 Burr. 1005, 1009; and see De Medina v. Grove, 10 Q. B. 152. |