This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Statute merchant was an obligation of record analogous to a recognizance. The statute of Acton-Burnel,1 the first of a series of acts, passed primarily to extend English credit in that mediaeval struggle for trade in which England laid the foundation of her commercial greatness, attempted to provide a quick and easy method for securing debts due to merchants. "The merchant which will be sure of his debts shall cause his debtor to come before the mayor of London or of York or Bristol, or before the mayor and a clerk (which the King shall appoint for the same) for to knowledge the debt and the day of payment; and the recognizance shall be entered into a roll with the hand of the said clerk which shall be known." This statute then provided that a writing obligatory was to be made by the clerk, sealed with the seal of the debtor and the seal of the King. If the debtor did not pay at the day limited the creditor could come before the said mayor and clerk with his bill obligatory; and if it was found by the roll and the bill that the debt had been acknowledged and that the day of payment had expired and that the bill was unpaid, the mayor was forthwith to cause the movables of the debtor to be sold after appraisal until the amount of the debt was paid. Provision was made for levying on movables outside of the jurisdiction of the mayor. Imprisonment of the debtor was provided for if the movables did not bring enough to pay the debt. This statute proved ineffective, and its general principles were re-enacted and extended in the statute De mercatoribus.2 Before the passage of this act, feudal principles had given rise to the doctrine that real property was not liable for the debts of the owner. This rule had a depressing influence on the credit of English merchants, since their real estate could not be reached in any way. The Statute of Acton-Burnel was also shorn of its force by misinterpretation by the sheriffs, it is said in the preamble to the Statute De Mercatoribus, and great injury was thus done to merchants. After specific provisions for recognizance, execution against movables, and imprisonment, of the same general scope as the Statute of Acton-Burnel, but more exact in terms, the Statute De Mercatoribus provides for extension of time for a quarter of a year, "And if he do not agree within the quarter (of a year) next after the quarter expired, all the lands and goods of the debtor shall be delivered to the merchant by a reasonable extent, to hold them until such time as the debt is wholly levied." The liability thus created was more than a mere obligation of record; since it created an estate in lands defeasible upon condition subsequent, a chattel interest, but one like a freehold, since it might endure forever if the debtor's estate were a fee and the debt was not discharged.3 Statute Staple was a similar estate created under a later statute.4 The Statute of the Staple intended to create certain market-places in England for wools, leather, wool-fells and lead. There was also a class of obligations of record known as recognizances in the nature of Statute Staples.5 No further discussion of these obligations of record is necessary, as they have all been long since obsolete.
Law, is a contract in Kansas.) State v. Crippen, 1 O. S. 399.
21 Anson regards this as excluding it from true contract. Anson Cont. 51 (original paging). In Smith v. Collins, 42 Kan. 259; 21 Pac. 1058, the court said that recognizances are " not contracts within the ordinary significance of the word "; and accordingly held that suits on recognizances were to be classed as penalties rather than as contracts with reference to the jurisdiction of such suit.
22McNamara v. People, 183 Ill. 164; 55 N. E. 625; State v. Kruise, 32 N. J. L. 313.
23Banta v. People, 53 Ill. 434; State v. Dwyer, 70 Vt. 96; 39 Atl. 629.
24 State v. Wheeler, 67 N. H. 511; 41 Atl. 173.
25 State v. Dwyer, 70 Vt. 96; 39 Atl. 629.
1ll or 13 Ed. I.; Statutes at Large, I., 141 (edited by Danby Pickering).
2 13 Ed. I.; St. 3, c. 1; I. Statutes at Large, 236 (edited by Danby Pickering).
3 Black. Com. II. 160.
4 27 Ed. III., St. 2, ch. 9; II. Statutes at Large, 85 (edited by Danby Pickering).