between a it will be noticed that a warrant of attorney is mentioned, being placed under the same provisions as to execution as is a cognovit, and as the two are sometimes confused by students it may be well to point out that there is this difference between them, viz. that a Differences cognovit is a written confession of some existing action, warrant of whilst a warrant of attorney is simply a power given attorney and a cognovit. to an attorney or attorneys to appear in some action commenced, or to be commenced, and allow judgment to be entered up. Cognovits and warrants of attorney require to be filed in the Central Office of the High Court of Justice within twenty-one days after execution (p); and there is a like provision as to judges' orders made by the consent of any defendant in a personal action, whereby the plaintiff is authorized forthwith, or at any future time, to sign or enter up judgment, or to issue or to take out execution (q). Now as to the peculiarities of contracts of record of the pecugenerally, but mainly with reference to judgments. liarities of contracts of record, particularly 1. Being of the highest nature of all contracts, they judgments. have the effect of merging either a simple contract or a 1. Merger. contract entered into by deed (a specialty).—It is a principle, not only with regard to contracts but also estates, that a larger interest swallows up or extinguishes a lesser one. If a person has an estate for years, and afterwards acquires an estate in fee simple, the former estate for years is lost in the greater estate in fee (r), and so here, if there is an ordinary contract by parol, in writing, or by deed, and judgment is recovered on it, the judgment merges the rights on the former contract, and the person's rights henceforth are on the new and higher contract, the judgment. (p) 32 & 33 Vict. c. 62, s. 26. (9) Ibid. 8. 27. (r) The Jud. Act, 1873 (s. 25 (4)), however, provides that there shall not now be any merger by operation of law only of any estate, the beneficial interest in which would not be deemed to be merged or extinguished in equity. 2. Estoppel. Duchess of 2. They have the effect of estopping the parties to them. -Estoppel has been defined as a term of law whereby a person is stopped or hindered from denying a matter already stated (s), and it is because of the high nature of contracts of record that whilst they remain in existence they are conclusive, for no one can aver against a record, and this has been stated by Lord Coke, as follows: "The Rolls being the records or memorials of the judges of the court of record, import in them such uncontrollable credit and verity as they admit of no averment, plea, or proof to the contrary" (t). This is well illustrated by a somewhat recent case, in which the plaintiff was formerly clerk of the peace, and having been dismissed, brought an action against the defendant, his successor in office, to try his right to certain fees. It appeared that the justices had at quarter sessions found that the plaintiff had been guilty of contumaciously refusing to record an order that had been made by them as he should have done, and therefore they had dismissed him from his office, which they were justified on such a fact in doing. The Court here decided that the plaintiff was estopped in this action from denying the validity of the order so made at quarter sessions (u). The leading authority generally referred to on the point of estoppel by matter of record is the Duchess of Kingston's Case (x), which goes to shew that a judgment is only a conclusive estoppel where the same matter is directly involved in it, and not where it is only incidentally involved, and also that, even although it might be otherwise a conclusive estoppel, yet that it may always be avoided by shewing fraud or collusion (y). (u) Wildes v. Russell, L. R. 1 C. P. 722. (x) 2 S. L. C. 784; Bul. N. P. 244. (y) See also National Bolivian Navigation Company v. Wilson, L. R. 5 App. Cases, 176; 43 L. T. 60. consideration. 3. They require no consideration. This peculiarity 3. As to results from the preceding one of estoppel; the want of consideration can be no defence or objection to proceedings on a judgment or other record, which, as we have seen, the party is estopped from denying. priority of 4. A judgment has priority in payment.-In the 4. As to administration of an insolvent estate in equity, payment. a judgment creditor is entitled to priority, which is an important advantage if the estate is insufficient to pay every one (*). And though the Judicature Act, 1875 (a), provides that the same rules shall prevail as to the respective rights of secured and unsecured creditors as are in force in bankruptcy, this does not in any way affect this rule (b). ing lands. 5. A judgment constituted a charge on the lands of the 5. As to charg judgment debtor (c).—This is a peculiarity of the past, and the following is a short summary of the past and present laws upon the subject (d) :— By 13 Ed. 1, c. 18, half a judgment debtor's lands could be taken in execution under a writ of elegit. (z) And now this advantage does not only apply to English judg ments, but also to Irish judgments and Scotch decreets, if registered here, being by 31 & 32 Vict. c. 54, s. 1, provided that, if registered here, they shall have the same force and effect as if original judgments of this country. (a) 38 & 39 Vict. c. 77, s. 10 (instead of sect. 25, sub-sect. I of the Judicature Act, 1873). (b) In re the Withernsea Brick Works Company, L. R. 16 Ch. D. 337; 50 L. J. Ch. 185; 29 W. R. 178. In re Maggi, Winehouse v. Winehouse, L. R. 51 L. J. Ch. Smith v. Morgan, L. R. 5 C. P. D. 337; 49 L. J. C. P. 410; Snell's Principles of Equity, 263, 264. (c) This was recently extended to Irish judgments and Scotch decreets if registered under 31 & 32 Vict. c. 54. See note (z). (d) The law of judgments as affecting lands belongs more properly to the subject of conveyancing and real property, and, for fuller information than is contained in the few remarks above, the student is referred to the dissertations in Prideaux's Conveyancing. 6. As to proof. By 29 Car. 2, c. 3, sect. 10, execution could also be issued to the above extent on judgments entered up against a cestui que trust of freeholds, provided they were vested in a trustee in fee simple, and he was duly seised of them. By 1 & 2 Vict. c. 110, a judgment was made a charge upon the whole lands of a judgment debtor, of whatever nature, but judgment was not to affect purchasers until registered in the name of the debtor. By 2 & 3 Vict. c. II, all judgments, to so bind, must be re-registered every five years. By 23 & 24 Vict. c. 38, no judgment to be entered up after the passing of that Act (July 23, 1860), was to affect any lands, unless a writ of execution was issued and registered and put in force within three calendar months from the time of registration. And now, by the 27 & 28 Vict. c. 1 12 (the statute in force upon the subject at the present day), it is provided that no judgment to be entered up after the passing thereof (July 29, 1864), shall affect any lands until the same shall have been actually delivered in execution by virtue of a writ of elegit or other lawful authority. 6. They prove themselves—which means that when necessary to prove a contract of record the mere production thereof is sufficient proof, and this is always their proper mode of proof; so that when there is an issue of nul tiel record (no such record), either the record itself must be produced, or it may be proved by exemplification under the great seal, or by an examined or sworn copy (e). (e) Powell's Evidence, 314. The two remaining kinds of contracts under this division are specialties and simple contracts, and these are of ordinary practical and constant occurrence, and therefore of very much more importance to the student than contracts of record. A specialty or contract under seal is termed a deed because of the peculiar solemnities attending its execution, it being not only signed (ƒ), but also sealed and delivered, whilst a simple contract is either by parol, or at most in writing not under seal, and it is from the point of the supposed additional solemnities attending the execution of deeds or specialties, that we may trace the numerous Distinctions distinctions which exist between them on the one hand, specialties and simple contracts on the other. These distinctions and simple are mainly as follows: between contracts. execution. 1. As to the execution.-Here, as just stated, the 1. As to essential formalities to be observed on the execution of a deed are sealing and delivery, whilst a simple contract may be even by word of mouth; and if writing is used, signature only is necessary. One of the essentials, too, of the deed being delivery, a person may execute a deed as an escrow, i.e., "so that it shall Escrow. take effect or be his deed on certain conditions" (g), by delivering it to some third person, and then it will not take effect until the happening of the condition, though on the condition being performed it will relate back to the original date of execution. A deed cannot be delivered as an escrow to the other party to it, it must be to some third person, but it may be delivered to a solicitor acting for all parties (h). 2. As to merger. The principle of merger has al- 2. As to ready been explained (i), and it may be defined as an (f) There is some doubt whether signing is actually necessary to the validity of a deed. (g) Chitty on Contracts, 4. See also Brown's Law Dict. 207. (h) Millership v. Brooks, 5 H. & N. 797. (i) Ante, p. 9. merger. |