§ I. Contracts of Record.

The obligations which are styled Contracts of Record are Contracts of

Judgment, Recognizance, Statutes Merchant and Staple, and ^^^^ '

Recognizances in the nature of Statute Staple.

And first as to Judgment. The proceedings of Courts of (i) Judg-

Record are entered upon parchment rolls, and upon these "*^"^'

an entry is made of the judgment in an action when that

judgment is final. A judgment awarding a sum of money

to one of two litigants, either by way of damages or for costs,

lays an obligation upon the other to pay the sum awarded.

This obligation may come into existence as the final result How it

of litigation when the Court pronounces judgment, or it may ^"S'"*^^*'-

be created by agreement between the parties before litigation

has commenced, or during its continuance. In such cases

the obligation results from a contract for the making of which

certain formalities are required ; this contract is either a

warrant of attorney, by which one party gives authority to

the other to enter judgment upon terms settled, or a cognovit

a^sttonem^ by which the one party acknowledges the right of

the other in respect of the pending dispute and then gives

a similar authority.

The characteristics of an obligation of this nature may be Us charac>

shortly stated as follows :— teristics.

1. Its terms admit of no dispute, but are conclusively

proved by production of the record.

2. So soon as it is created the previously existing rights

with which it deals merge, or are extinguished in it : for

instance, A sues X for breach of contract or for civil injury:

judgment is entered in favour of 4 either by consent or after ^

trial: A has no further rights in respect of his cause of

action, he only becomes creditor of X for the sum awarded.

3. The creditor, as we may conveniently call the party in

^8 FORltfATION OF CONTRACT. Part n.

whose favour judgment is given, has certain advantages

which an ordinary creditor does not possess. He has a

double remedy for his debt ; he can take out execution upon

the judgment and so obtain directly the sum awarded, and

he can also bring an action for the non-fulfilment of the

obligation. For this purpose the judgment not only of a

Court of Record, but of any Court of competent jurisdiction,*

jon« '"'*''' British or foreign, is treated as creating an obligation upon

i}M.&w.<5a8. ^yjji^jjj j^jj action may be brought for money due.

He had also before 27 and 28 Vict. c. 112 a charge upon

the lands of the judgment debtor during liis lifetime ; but

since the passing of that Statute lands are not afPected by a

judgment until they have been formally taken into execution.

(2) Recog* Kecognizances have been aptly described as ' contracts made

nisance. ^j^j^ ^^^ Crowu in its judicial capacity.* A recognizance is

a writing acknowledged by the party to it before a judge or

officer having authority for the purpose, and enrolled in a

Court of Record. It may be a promise, with penalties for

the breach of it, to keep the peace, or to appear at the

assizes.

(3) Statutes Statutes Merchant and Staple and Recognizances in the

aiid^stapfe "^^^'^^^ ^^ * Statute Staple are chiefly of interest to the

student of the history of Real Property* Law. They have

long since become obsolete, but they were once important,

inasmuch. as they were acknowledgments of debt which,

when made in accordance with Statutory provisions and

enrolled of Record, created a charge upon the lands of the

debtor.

It will easily be seen how little there is of the true nature

of a contract in the so-called Contracts of Record. Judg-

ments are obligations dependent for their binding force,

not on the consent of the parties, but ilpon their direct

promulgation by the sovereign authority acting in its judi-

cial capacity. Recognizances are promises made to the

sovereign with whom, both by the technical rules of English

Chap. II. § 2. FORM. CONTRACT UNDER SEAL. 39

Law and upon the theories of JuriBprudence, the suhject

cannot contract. Statutes Merchant and Staple bhure the

charaxsteristics of judgments. We may therefore dismisfl

these obligations altogether from our consideration.