Page:Harvard Law Review Volume 4.djvu/131

115 EQUITY JURISDICTION. U^ including judgments, which are the highest of all. Formerly, moreover, when a debtor died, his debts were required to be paid in the order of their grade ; namely, debts by matter of record first, specialty debts next, and simple contract debts last of all. Specialty debts and debts by matter of record had also other im- portant advantages, which will be mentioned hereafter. For these reasons, it was, of course, a matter of importance to a creditor that his debt should be of as high a nature as practicable, and therefore specialty debts and debts by matter of record were in- comparably more common than they are now. The form of spe- cialty by which debts were created was almost invariably a bond with a condition, i.e.^ a bond by which the debtor acknowledged himself bound to the creditor for a sum larger than (generally twice as large as) the real debt, with a condition making the bond void on payment of the amount actually due by a day named. The larger sum was, therefore, in the nature of a penalty incurred by the debtor in the event of his failing to pay the smaller sum ac- cording to the terms of the condition ; and yet, upon breach of the condition, the larger sum became the actual legal debt. The matters of record by which debts were created were judg- ments, recognizances, and statutes. Judgments were rendered either in invitum or upon confession. The object of confessing a judgment was to give a creditor the security afforded by a judg- ment for the payment of his debt; and hence a judgment con- fessed was, hke a bond, generally for a larger sum than was actually due, and so was in the nature of a penalty. A recognizance was (and is) an acknowledgment of a debt in a court of record, the acknowledgment thus becoming a record ; and it is usually given in an action or in some other legal proceeding {e.g., bail always become bound in a recognizance) ; and its object generally is to secure the payment of a smaller sum, or the doing of some other act. Statutes (now obsolete) were formerly very common in England, and were either statutes merchant, statutes staple, or recognizances in the nature of statutes staple.^ They differed in substance from bonds only in this, that they derived their efficacy, not from being sealed and delivered by the debtor, but from being acknowledged by him before a judge or other officer designated 1 Statutes merchant had their origin in the statute De Mercatoribtts, 13 Edward I., statute 3; statutes staple, in the statute of 27 Edward III. c. 9; and recognizances in the nature of statutes staple, in the statute of 23 Henry VIII. c. 6.