페이지 이미지
PDF
ePub

Stat. 23 & 24 Vict.

ments as against

This statute applies equally to judgments of county courts as to other judgments (o).

An unregistered judgment ranks only as a simple contract debt (p).

By the 4th section of the same statute, it is enacted, that no judgments, which since the passing of the stat. 1 & 2 Vict. c. 110, have been registered under the provisions therein C. 38, 6. 4: juda contained, or contained in the later act 2 & 3 Vict. c. 11 heirs and execu

tors to be regis. (as explained and amended by the stat. 18 & 19 Vict. tered. c. 15), or which hereafter shall be so registered, “shall have any preference against heirs, executors, or administrators in their *administration of their executors' [i. e., ancestors' semble), testators' or intestates' estates, unless at the death of the testator or intestate five years shall not have elapsed from the date of the entry thereof on the docket, or from the only or last re-registry thereof, as the case may be, which re-registry from time to time is hereby authorized to be madde, in manner directed by the said Act of 2 & 3 Vict. (as explained and amended by the stat, 18 & 19 Viet.): but it shall be deemed sufficient, to secure such preference as aforesaid, if such a memorandum as was required in the first instance is again left with the Senior Master of the Common Pleas (now with the Central Office of the Supreme Court) within five years before the death of the testator or intestate, although more than five years shall have expired by effluxion of time since the last previous registration before such last mentioned memorandum or minute was left, and so toties quoties upon every re-registry.”

By sect. 5, “In the construction of the previous provisions the term ‘judgment' shall be taken to include registered decrees, order of Courts of Equity and Bankruptcy, and other orders having the operation of a judgment."

It has been held that the 4th section of this statute (above stated) is not retrospective (1).

The statute 2 & 3 Vict. c. 11, s. 4, directs, that all judgments registered pursuant to the provisions of the stat. 1 & 2 Vict. Stat. 2 & 3 Vict. c. 110, shall, after the expiration of five years from the c. 11, 8. 4. 32 & 33 Vict. c. 46 (post, p. *869), is to 325. But a judgment signed before the postpone a specialty debt to a judgment, passing of the act, and not registered though unregistered, obtained against till after the death of the testator, which an executor for a simple contract debt. happened after the passing of the act,

(9) Re Turner, 33 L. J. Ch. 232. was held to be deprived, by sect. 3, of

(p) Van Gheluive o. Nerinckx, 21 C. priority in the administration of his D. 189.

assets : Kemp v. Waddingham, L. R. (b) Evans v. Williams, 2 Dr. & Sm. 1 Q. B. 355.

Sect. 5.

[ocr errors]

no among selves.

them

former registration, unless re-registered within that time,“ be null and void against lands, tenements, and hereditaments as to purchasers, mortgagees, or creditors.” It was held by Wood, V.-C., that the word “creditors ” referred only to creditors who had some interest in the land ; and therefore, that a judgment, though not duly re-regis

l tered, was not void as against creditors generally (r). *Between one judgment and another obtained against the deceased,

as they stand among themselves, precedency or priority Judgments have precedence of time is not material, as far as regards the personal

estate (8). Nor is there preference to be claimed by the creditor with respect to the original cause of action ; for a judgment

a against the testator on a debt by simple contract, is of the same nature as a judgment on a specialty (t).

Of several judgment creditors, therefore, he who first sues out execution must be preferred ; and before any execution sued, it is at the election of the executor or administrator to pay whom he will first (u).

A decree in a court of equity, obtained against the testator or Decree in equity: intestate, was, in respect to the course of administering equal to a judg- assets, equivalent to a judgment at law against him, and

stood in the same order of payment.

However, an executor or administrator, if sued at law could not plead it for a debt of inferior degree, could not plead or give in have had an in- evidence a decree of a court of equity (2). But he junction :

might relieve himself by a bill in equity, and have an injunction (y). A decree not conclusive of the matters in question, as if it be

merely to account, and which does not ascertain the sum cree entitled to to be paid, is no complete judgment until the account this precedence.

be stated. Therefore, it was held, that, pending a bill in equity, and after such decree against his testator, an executor might pay any other debt of a higher or equal nature, in case the assets be legal, although he had no power to do so, as against a final decree (2). A common order in a foreclosure action gives no priority ; for it is

; not an order for payment of money, but only in bar of the equity of redemption (a).

ment at law:

the executor

what sort of de

(r) Simpson o. Morley, 2 Kay & J. 71.
(8) Wentw. Off. Ex. 269, 14th ed.
(t) Toller, 264.
(u) Wentw. Off. Ex. 269, 14th ed.
(2) Stasby v. Powell, 1 Freem. 334.

(y) Ibid. Harding v. Edge, 1 Vern. 143.

(2) Smith v. Eyles, 2 Atk. 385.

(a) Wilson 0. Lady Dunsany, 18 Beav. 293, 299.

and statutes :

[ocr errors]

3. Recognizances and statutes. Next in rank to judgments and decrees are recognizances and statutes.

3. Recognizances *A recognizance is an obligation of record ; it

may
be

recognizance : entered into by the party before a court of record, or a magistrate duly authorized, conditioned for the performance of a particular act ; as to appear at the assizes, to keep the peace, to pay a debt or the like (6). A recognizance is, in most respects, like another bond. The chief distinction between them is, that the latter is the creation of a new debt, or an obligation de novo, the former is an acknowledgment on record of a prior debt, of which the form is : “ That A. B. doth acknowledge to owe our lord the king (to the plaintiff, to C. D., or the like), the sum of ten pounds,” with condition to be roid on the performance of the thing stipulated. And in such case, the king (the plaintiff, or C. D.) is called the cognizee, “is cui cognoscitur," as he that enters into the cognizance is called the cognizor, " is qui cognoscit.” This instrument being either certified to, or taken by the officer of some court, is authenticated only by the record of such court, and not by the party's seal (c).

A recognizance is not a record until it is enrolled (d), and although the creditor claiming under a recognizance not enrolled will still be considered as a bond creditor, the sealing and acknowledging thereof supplying the want of delivery (e), yet this will give it no preference since 32 & 33 Vict. c. 46.

If a recognizance be enrolled by special order of court after the time for the enrolling of it has elapsed, that makes the recognizance effectual from the time of the date (f). But whenever the court permits the enrolling of a recognizance, after the time elapsed, it always takes care not to hurt an intervening purchaser (9).

Of securities by statute, there were three species ; statutes merchant, statutes staple and recognizance in the nature of

securities by *statutes staple; and though they are fallen into disuse and the statutes on which they depended repealed, yet, as they are freqnently alluded to in argument, especially on this subject, it seems necessary to give some explanation of them.

A statute merchant is a bond of record acknowledged before the Mayor of London, or chief warden of some other city or

statute merchant: town, or other discreet men, chosen and sworn for that

statute:

(6) 2 Black. Comm. 341. () Ibid.

(d) Glynn o. Thorpe, 1 Barn. & Ald. 158.

(e) Bothomly v. Fairfax, 1 P. Wms. 334, 340.

(f)Fothergill v. Kendrick, 2 Vern. 234. (g) 1 P. Wms. 340, 2 Vern. 234.

[*865] [*866)

purpose, when the mayor or chief warden cannot attend, or before one of the clerks of the statute merchant nominated by the king, pursuant to the statute of Acton Burnell, 11 Edw. I. (enforced and amended by statute 13 Edw. I. st. 3, de mercatoribus). This recognizance is to be entered by the clerk on a roll, which must be doubled, one part to remain with the mayor or chief warden, and the other with the clerk, who shall write with his own hand an obligation, to which the debtor's seal, together with the seal of the king appointed for that purpose, shall be affixed (h). The design of this security was to encourage trade, by providing a sure and speedy remedy for merchants, strangers as well as natives, to recover their debts at the day assigned for payment, Afterward, other persons, observing that it was much of the same nature with a judgment, but obtained with infinitely less trouble and expense, frequently entered into this species of contract, until, by degrees, it became a common assurance, as we find it at this day. The addition of the king's seal was to authenticate the security, and to make it of so high a nature, that, on failure of payment by the debtor at the day assigned, execution might be awarded without any mesne process to summon him, or the trouble or charge of bringing in proof of the debt. A statute staple is a bond of record, acknowledged before the

mayor of the staple, in the presence of the constables of statute staple :

the staple, or one of them, pursuant to stat. 27 Edw. III. st. 2, c. 9. To this end the statute requires, that there shall be a seal ordained, which shall be affixed to all obligations made *on such recognizances acknowledged in the staple, and the seal shall remain in the custody of the mayor of the staple, under the seals of the constables (0) This security was also only designed for the merchants of the staple, and for debts on the sale of merchandises brought there; but, in time, others began to apply it to their own ends : and the mayor and constables would take recognizances from strangers, surmising it was made for the payment of money for merchandises brought to the staple. To prevent this mischief, the Parliament, by statute 23 Hen. VIII. c. 6, s. 11, reduced the statute staple to its former channel, and laid a penalty of 401, on the mayor and constables who should extend the benefits of the statute to any but those of the staple. But though that statute deprived them of this benefit, yet it framed

a new sort of security, to be used by all persons, known Recognizance in nature of statute by the name of a recognizance on 23 Hen. VIII. c. 6, or staple;

a recognizance in the nature of a statute staple, so (h) Bac. Abr. Execution, 331.

(*) Bac. Abr. Execution, 331, 832.

called, because this act limits and appoints the same process, execution, and advantage in every particular, as is provided for the statute staple (k). A recognizance, therefore, in nature of a statute staple, as the words of the act declare, is the same with the statute staple, only acknowledged before other persons ; for, as the statute runs, the chief justices of the King's Bench and Common Pleas, or in their absence out of term, the mayor of the staple at Westminster, and the Recorder of London jointly together, shall have power to take recognizances for payment of debts in the form set down by the statute (which see in section 2 of the statute 23 Hen. VIII. c. 6). In this, as in the former cases, the king appoints a seal to attest the contract, and each of the justices has the keeping of one such seal, and the mayor of the staple at Westminster and recorder another, of the like print and fashion ; and every obligation made and acknowledged before either of the justices, or the mayor and recorder, must be sealed with the seal of the conusor, the king's seal, and *the seal of the chief justice, or the seals of the mayor and recorder, before whom it is taken, who are likewise obliged to subscribe their names.

A statute, which is void for the want of the formalities required by the Act of Parliament, shall be considered a bond, and have the same rank among debts as to payment (1).

Although recognizances are entered on the rolls of the king's courts while statutes are consigned to the custody of the party, and hence are called pocket records (m), yet both species of securities, having, been entered into voluntarily and privately, are regarded as equal iri their nature, and payable in the same order (n). Nor is it material, in regard to payment by the executor, which of them are prior or subsequent in point of date : Therefore, where there are many cognizees, he may prefer a subsequent to a prior statute or recognizance ; for they all equally affect the personal estate, although, as to lands, the first in point of time shall have the preference (o).

If a statute be joint and several, the cognizee may elect to sue either the surviving obligor, or the executor of him who is dead, or both, in separate actions : If it be joint only, the survivor alone is liable (p).

(k) Bac. Abr, Execution, 332.

(1) Hollingworth 0. Ascue, Cro. Eliz. 355, 461, 494, 544. S. C. Moor. 405. 2 Roll. Abr. 140. Obligation, (I.).

(m) Harrison's Case, 5 Co. 28, b.

(n) Wentw. Off. Ex. 273, 14th edit. Toller, 275.

(0) Wentw. Off. Ex. 273, 14t| edit. 3 Bac. Abr. 81, tit. Exors. (L. 2). Com. Dig. Admon. (C. 2).

(p) Rogers v. Danvers, 1 Mod. 165. S. C. 1 Freem. 127.

« 이전계속 »