tion is changed into matter of record, which is of a higher nature, and the inferior remedy is merged in the higher" (a). If another action is brought for the same cause, the judgment recovered against the defendant in respect of that cause of action may be pleaded in bar in the second action (b). So, a judgment recovered against the plaintiff in an action, Effect of if the judgment be given upon the merits of the case, in estoppel. judgment operates as an estoppel against the plaintiff bringing another action for the same cause, and may be pleaded in bar to such action (r). in charging debtor. By the statute 1 & 2 Vict. c. 110, s. 13 it is enacted to Effect of the effect, that a judgment entered up against any person in judgments any of the superior courts at Westminster shall operate as lands of a charge upon all lands, tenements, and hereditaments to which such person shall at the time of entering up such judgment or at any time afterwards be entitled, and shall be binding as against the person against whom judgment shall be so entered up, and against all persons claiming under him after such judgment; and every judgment creditor shall have the same remedies in a court of equity against the hereditaments so charged as he would be entitled to in case the judgment debtor had power to charge the same, and had by writing under his hand agreed to charge the same, with the amount of such judgment debt and interest thereon. The same statute, s. 19, provides that no judgment shall by virtue of that Act affect any lands, tenements, or hereditaments as to purchasers, mortgagees, or creditors, unless and until such judgment shall have been registered in the manner therein provided; and the statute 3 & 4 Vict. c. 82, s. 2 further provides that no judgment shall by virtue of the above Act affect any lands as to purchasers, mortgagees, or creditors unless and until registration, "any notice any such judgment to any such purchaser, mortgagee, or creditor in anywise notwithstanding." of (a) Per Parke, B., King v. Hoare, 13 M. & W. 494, 504. (b) Smith v. Nicholls, 5 Bing. N. C. 208, 220; Todd v. Stewart, 9Q. B. 759. (c) Vooght v. Winch, 2 B. & Ald. 662; General Steam Narigation Co. v. Guillou, 11 M. & W. 877. Revival of against heir. The statute 18 Vict. c. 15, s. 4 enacts that no judgment which might be registered under the said Act 1 & 2 Vict. c. 110 shall affect any lands, tenements, or hereditaments, at law or in equity, as to purchasers, mortgagees, or creditors, unless and until it shall have been registered according to that Act, any notice notwithstanding. This enactment takes away the effect which the judgment had against purchasers, mortgagees, or creditors without registration, independently of the statute 1 & 2 Vict. c. 110. By the statute 2 & 3 Vict. c. 11, s. 4 it is enacted that all judgments registered under the 1 & 2 Vict. c. 110 shall after the expiration of five years be null and void against lands as to purchasers, mortgagees, and creditors, unless reregistered within five years in the manner therein provided. By the statute 23 & 24 Vict. c. 38, s. 1 it is enacted that no judgment to be entered up after the passing of that Act shall affect any land as to a bonâ fide purchaser for valuable consideration or mortgagee, whether such purchaser or mortgagee have notice or not of such judgment, unless a writ or other due process of execution of such judgment shall have been issued and registered as therein provided, and shall be executed and put in force within three months from the time when it was registered. And the statute 27 & 28 Vict. c. 112, s. 1, in order to assimilate the law affecting freehold, copyhold, and leasehold estates to that affecting purely personal estates in respect of future judgments, enacts that no judgment to be entered up after the passing of that Act shall affect any land, until such land shall have been actually delivered in execution by virtue of a writ of elegit or other lawful authority in pursuance of such judgment. Upon the death of a judgment debtor his real assets may judgment be charged in execution by taking the proper proceedings to revive the judgment against the heir and tenants of the lands; but the heir is chargeable as tenant of the lands only and not as heir, and is not liable to an action on the judgment as he is on a contract under seal of the ancestor in which he is expressly named (a). (a) See ante, p. 86; Jeffreson v. Morton, 2 Wms. Saund. 7 (4); Chitty's Practice, 12th ed., 1127. A judgment also gives the judgment creditor priority in Priority of the administration of the assets of the deceased judgment judgment debtor over creditors by contracts under seal and by simple contracts (a); subject to the statute 23 & 24 Vict. c. 38, s. 3, which enacted to the effect that no judgment which had not then been or which should not thereafter be registered, under the Acts in force for that purpose, so as to bind lands as against purchasers, mortgagees, or creditors, should have any preference against heirs, executors, or administrators in their administration of their ancestor's, testator's, or intestate's estates (b). zance. A recognizance is a writing obligatory acknowledged be- Recogni fore a judge or other officer having authority for that purpose, and enrolled in a Court of Record. It is conditioned to secure various objects, as to appear at the assizes, to keep the peace, to become bail for the defendant in an action. A recognizance is proved by the record, and the remedy upon it is by writ of scire facias or by action. It operates as a charge upon the lands of the party bound from the time of enrolment on record; and it takes precedence in the administration of assets after judgment debts, but before contracts under seal (c). merchant, recogni ture of sta Statutes merchant, statutes staple, and recognizances in Statute the nature of a statute staple were acknowledgments of statute debt made in writing before officers appointed for that pur- staple, and pose, and enrolled of record. They bound the lands of the zance in nadebtor; and execution was awarded upon them upon default tute staple. in payment without the ordinary process of an action. These securities were originally introduced for the encouragement of trade, by providing a sure and speedy remedy for the recovery of debts between merchants, and afterwards became (a) Williams on Executors, 5th ed., 898; 2 Bl. Com. 511. (b) See Fuller v. Redman, 26 Beav. 600; 29 L. J. C. 324; In re Rigby, 33 L. J. C. 149; In re Turner, 33 L. J. C. 232; Evans v. Williams, 2 Drew. & Sm. 324; 34 L. J. C. 661; Kemp v. (c) Bacon, Abr. tit. "Execution" common assurances, but have now become obsolete and therefore require no further mention (a). Debts created by sta tute. Debts are sometimes created by statutes, as debts for penalties imposed by penal statutes and payable to an informer or to a party grieved, debts for calls under the Joint Stock Companies Acts, debts for tolls payable under statutes, and others. Such debts cannot strictly, in respect of their origin, be referred to either of the forms of contract recognized by common law, which are mentioned above. Being the creatures of statute law, their form and incidents are those imposed by the statute which creates them, and must be sought in the particular provisions of the statute (b). Accordingly, it has been held that an action by a company for calls under the Companies Clauses Consolidation Act is not an action on a contract without specialty within the meaning of the Statute of Limitations (21 Jac. I. c. 16, s. 3) prescribing six years as the limit for such actions (c); and it has also been held that such calls are to be allowed as specialty debts in the administration of the debts of a deceased shareholder (d). It was held in the full Court of Appeal in Chancery that a call made upon a member of a company as a contributory under the provisions of the Winding Up Act of 1848 (11 & 12 Vict. c. 45, s. 83) did not take priority as a specialty debt over simple contract debts in the administration of assets (e). "The Joint Stock Companies Act, 1857," 20 & 21 Vict. c. 14, s. 13, enacted that calls made on a contributory should be deemed to be specialty debts due from such contributory to the company; and "the Companies Act, 1862,” 25 & 26 Vict. c. 89, s. 75, has enacted to the same effect. A debt for calls by a company founded on colonial sta (a) As to these forms of contract see Bacon, Abr. tit. "Execution" B; Underhill v. Devereux, 2 Wms. Saund. 68; Williams' Executors, 5th ed., 905. (b) As to a debt under a bye-law, see Tobacco Pipe Makers' Co. v. Loder, 16 Q. B. 765. (c) Cork & Bandon Railway Co. v. Goode, 13 C. B. 826. (d) Wentworth v. Chevill, 26 L. J. C. 760. (e) Robinson's case, 3 Sm. & Gif. 272; 6 D. M. & G. 572; 26 L. J. C. 95; see as to this liability, Williams v. Harding, Law Rep. 1 H. L. 9. tutes, so far as it is recognized in this country, is a simple contract debt (a). An action under the statute 1 Ric. II. c. 12, which gave to creditors an action of debt against the sheriff upon the escape of a prisoner out of execution to recover the sum for which he was charged in execution (since altered by statute 5 & 6 Vict. c. 98, s. 31, to an action only for the damages sustained), was held not to be an action on contract without specialty, and so not barred by the 21 Jac. I. c. 16, s. 3 after six years (b). An action for tolls payable under a statute by the owners of shipping passing a harbour was held to be an action on a specialty within the meaning of the Statute of Limitations, 3 & 4 Wm. IV. c. 42, s. 3, which might be brought at any time within twenty years (e). CHAP. I. SECTION IV. CONTRACTS IN WRITING. in writing. CONTRACTS in writing are not recognized by the common Contracts law as a distinct form of contract. All contracts except simple contracts are necessarily contained in a written form. Simple contracts arising from agreement may be made in the form of writing; but whether they are so or not, they are all called by the general term parol contracts, importing (a) See ante, p. 75. (b) Jones v. Pope, 1 Wms. Saund. (c) Shepherd v. Hills, 11 Ex. 55; 25 L. J. Ex. 6. H |