case BOTHOMLY versus lord FAIRFAX Lord chancellor Cowper vern Eq can ab pl a  recognizance not enrol shall be look upon as a bind and pay as a debt by  specialty the late Lord Fairfax devise his estate for payment of his debt  which estate be accord by the court decree to be sell and the money to be  apply for peer William er p that purpose with direction to pay first the  mortgage then the judgement and recognizance affect the land and then other  debt and that all the creditor shall be at liberty to come before the master  and prove their debt the master report that one James chaplin have a  recognizance from Lord Fairfax in the penalty of pound for the payment of  pound and interest at pound per cent which recognizance have be assign by the  say chaplin to Samuel Phillips but that this recognizance happen not to be  enrol therefore he the master submit it whether it shall be take as a  recognizance or as a bind only and I be of counsel for Phillips the assignee  argue that this recognizance shall be take and pay as a recognizance peer  William it be the acknowledgement before a competent judge that give a  recognizance its force hob hall and Wingfield case Phettle v wood ld ray holt  salk the enrolment of it be what be do by a ministerial officer only and be  make use of as a proper method for the preservation of the security for safe  custody and for the notify it to other this be further prove by the authority  that say the recognizance bind the land from the time of the caption vent hob  so that if the cognizor acknowledge a recognizance and alien the land or die  before enrolment yet the recognizance shall bind the land in the hand either  of the alienee or the heir what be say in hob in hall and Wingfield case seem  very material videlicet that the first acknowledgement of the cognizor of the  recognizance bind his person and his land as a record from that time so that  the very acknowledgement of a recognizance before a competent judge alone make  it a record before the enrolment and with submission it be very reasonable it  shall be so I mean that the recognizance without the enrolment shall be a  perfect recognizance since the party who be to give the security have do his  part by acknowledge the recognizance the judge or master in chancery that take  it have also do his part by subscribe the caption and after all this solemnity  shall the neglect or nonfeazance of the officer a officer pure ministerial  prevent this lie from be of any force by the not enrol it this seem very  unreasonable I must own there be a material difference betwixt a recognizance  peer William in the nature of a statute staple or statute merchant take by  virtue of the statute of Acton burnel videlicet Edward or other act of  parliament empower the take of such statute and a recognizance at commonlaw it  be most true that those statute merchant or staple that be take by virtue of  the statute of Acton burnel or other act of parliament require particular  circumstance to be observe in the take of they and if in the take of those  statute staple or merchant the act of parliament be not pursue then they have  not the force of a recognizance and it must be admit to be a favourable  construction of the judge to allow such recognizance defective take to have  the force of bind by reason of the Obligatory word that be contain in they as  for instance the statute of Acton burnel require that a statute merchant or  staple that be give shall have two seal affix to it videlicet the seal of the  cognizor and the king seal appoint for that purpose and to the same effect it  be enact by the statute of Henry cap in the case of statute take by either of  the chief justice now where the case have happen that only the seal of the  cognizor or debtor be affix to the recognizance this be void as a recognizance  and in cro Elizabeth roll Abr Asme v Hollingworth after many argument and with  great difficulty it be resolve that this recognizance be void as a  recognizance may however be sue as a obligation by reason of the Obligatory  word in it see Sheffield v Castleton vern peer William this I say be a benign  construction because a delivery as well as seal be necessary to make a bind  and if non be factum be plead to a recognizance so take it will be strain  pretty far to make a debtor acknowledge a write as his recognizance to amount  to the delivery of it as his deed it be plain where a act of parliament give a  particular power of take a recognizance or statute that this act of parliament  must be observe and the circumstance require thereby comply with and if omit  the recognizance intend to be give be not a recognizance peer William er p yet  be it otherwise in case of a recognizance at commonlaw as we in the principal  case be acknowledge before a master of this court and where the  acknowledgement or caption of it before a judge or master give the lie its  force there be indeed a act of parliament make for the enter or enrol of  statute and recognizance out of regard to purchaser as the Elizabeth cap which  require statute to be bring within four month after the acknowledgement of  they to the clerk to be enter on the roll and it be thereby enact that the  statute shall be enter on the roll within six month after the acknowledgement  else quoad any purchaser they shall be void but this very act show that before  the make thereof the statute need not to be enter on the roll at all and that  even since it need be enter only in the case of a purchaser whereas in the  principal case there be no purchaser concern peer William and the recognizance  be only make use of against the heir executor or voluntary devisee of the Lord  Fairfax the cognizor thereof therefore since the recognizance receive its  force from the acknowledgement since it bind the land of the cognizor from the  acknowledgement since it be a record from the acknowledgement we humble insist  it be from that time a recognizance and to be pay as such but if a enrolment  shall be think necessary such enrolment where no purchaser be concern be not  confine to the life of the party but as we conceive may be do at any time  therefore we pray as to this recognizance which appear to have be give before  one of the master of this court that we may be even now at liberty to enrol it  and this we conceive most reasonable for it appear in this case that the  security which the lender stipulate to have for his money be to be a  recognizance it appear that the debtor agree to give a recognizance for the  security it be plain that in confidence of this the money be actual lend it be  as plain that the most worthy and material part of this recognizance I mean  the acknowledgement and caption be all of they perfect so that what remain to  be do be only by the ministerial officer to enrol it and the creditor ought  not to suffer for the neglect or omission of the officer peer William in  equity where there be the covenant or agreement of the party if make on a full  and valuable consideration whether it be to mortgage or convey land the court  will compel a execution if I covenant in consideration of money lend to  mortgage such land for it this in equity be a mortgage and such a lie upon the  land as that if the covenantor die the heir be bind by it though not name such  a lie upon the land as that if the covenantor become a bankrupt this land thus  covenant to be mortgage shall not be liable to the other creditor on the  commission of bankruptcy so that it be no objection that the other creditor  will be prejudice by the enrolment of this recognizance for the other creditor  be as much prejudice in the case last put of the bankruptcy if it be admit  that the recognizance f or want of a enrolment be a imperfect security just as  a mortgage if make by way of feoff will be void for want of livery yet as in  such case where the security be make for a full and valuable consideration  vide ante in the case of finch v earl of Winchelsea a court of equity will  make it good though against a mesne creditor by judgement in the same manner  will equity help this imperfect security if it be imperfect for want of a  enrolment it be agree on all side that the security shall be a recognizance  and in confidence of this the money actual advance and it be plain when the  recognizance be enrol if that be requisite the enrolment shall relate to the  acknowledgement and make it perfect ab beginning so that we humble take it the  recognizance though not enrol be a good recognizance or if a enrolment be peer  William requisite we be still at liberty to enrol it and that it shall take  place as a recognizance on the other side it be allege that without enrolment  this recognizance be no record nor can it be give in evidence as such and  though no precise time be fix for the enrolment of it it be however reasonable  to follow the equity of the Edward cap which provide for the enrolment of  statute merchant and staple and that by the course of the pettybag vide Lord  clarendon order they never enrol recognizance after six month without a  special order to do it nunc pro tune that in this case application have be  make to the master of the roll for leave to do so who peer William er p have  refuse and particular sir Joseph Jekyll insist that this security ought to be  deem only as a debt by simple contract and not as a bind in regard it do not  appear to have be deliver as a deed Lord chancellor there be a just suspicion  upon the security that this recognizance be otherwise satisfy or secure it not  have be all this while enrol and whenever the court permit the enrol of a  recognizance after the time elapse it always take care not to hurt a intervene  purchaser to this purpose see the case of Fothergill v Kendrick vern and as  that may happen to be the case here therefore Philips be to be look upon as a  bondcreditor only the seal and acknowledge thereof supply the want of delivery  see Glynn v Thorpe b a several point appear by the register book to have arise  upon the master report in this cause and to have be decide upon full  consideration Lord Fairfax have as appear by the order make upon the original  hear of the cause Reg lib a fol devise all his real and personal estate  general to trustee upon trust by sale or otherwise to pay all his debt and  funeral expense the cause come on to be hear for further direction the decree  first make a declaration of the right of the creditor by recognizance not  enrol to come in as a bind creditor only as state by the reporter and then  proceed thus and the next question arise upon the say report be whether  several note give for the payment of money by the late Lord Fairfax ought to  carry interest and from what time his lordship conceive that since the say  note do not carry interest in their nature they therefore ought not to carry  interest until some act fall in to make they so to do and since by the  testator appointment he have let in all his debt to receive a equal  satisfaction that therefore the say note ought to carry interest from a  reasonable time when they may be suppose to have be pay after his death if  contest have not happen and whereas in case of legacy the court allow but a  year time after the testator death for payment and in case of debt there be  less reason to allow a long time his lordship be of opinion the say note ought  to carry interest from the end of one cc year after the testator decease and  one of the say note be for payment of pound annuity to Walter Swyre for his  life and the same be a voluntary debt the cc question thereon be whether the  say note ought to be look upon as a debt by simple contract and his lordship  declare the same ought to be look upon and take as a good debt by simple  contract but as set apart a fund to answer the say annuity will be prefer one  simple contract creditor before the rest his lordship do therefore order that  the say master do set a just value upon the say annuity and the say Walter  Swyre be to come in to receive a satisfaction for such value as a creditor by  simple contract in proportion with the rest of the simple contract creditor  Reg lib a fol with respect to the question of interest on the simple contract  debt vide car v countess of Burlington ante see Russell v Russell bro c c ex  part Warner rise Ves and case there cite ex part whitbread rise Ves ex part  neux GI I by which it be settle that a equitable mortgage may be create by a  mere deposit of title deed and even extend to subsequent advance