A SECTION 1. BOND or obligation is a deed-poll whereby the A Bond. obligor binds or obliges himself, his heirs, exe- 1Inst. 172 d. cutors, and administrators, to pay a certain sum of money to the obligee, on a particular day. If this be all, the bond is called a simple one, simplex obligatio. But there is generally a condition added, that if the obligor does some act, the obligation shall be void, or else shall remain in full force; as payment of rent, performance of covenants in a deed, or repayment of a principal sum of money, borrowed of the obligee, with interest; which principal sum is usually one half of the penal sum specified in the bond. 2. There are only three things essentially necessary to a bond, writing, sealing, and delivery. For as to signing, that circumstance was clearly not neces sary in former times; and the statute of frauds does 2 Salk. 462. not extend to bonds. 3. No particular form of words is required to con- Cro. Eliz. stitute a bond; any words which shew the intention 561.729, 886. of the party to bind himself, will be sufficient; for such obligation is only in the nature of a contract, or a security for the performance of a contract, which is construed according to the intention of the parties. If there be an omission of the usual conclusion of a condition; namely, that then the obligation shall be 1 Saund. R. void; yet the condition is good; and it is a good defeazance of the bond. For insensible and repugnant words shall be rejected. 66. n. 1. Butler v. Wigge, Pullerton v. Agnew, Idem. 4. It has also been held, that any words by which the intention of the parties can be discovered, are sufficient to make a condition of a bond. For if the words, though improper, should be construed void, and not a condition, then the obligation would be single, and of force against the obligor, though he had performed the condition of it, according to the intention of the parties. And the condition, being for the benefit of the obligor, shall be construed favourably. 5. Mr Serjeant Williams, in his note on this case case, says "With respect to impossible or void conditions, the following distinction has been taken; that where the condition is underwritten or indorsed, that is only void, and the obligation is single. But where the condition is part of the lien itself, and incorporated therewith, (as in a recognizance by bail) if the condition be impossible, the obligation is void." 6. Where the condition of a bond is entire, and the whole is against law, it is void. But where the condition consists of several different parts, some of which are lawful, and others not, it is good for so much as is lawful, and void for the rest. If a bond is given with a condition to do a thing against an act of parliament, and also to pay a just debt, the whole bond is void, because the letter of the statute makes it void, and it is a strict law. 7. This security is called a specialty, the debt being therein particularly specified in writing. The party's seal acknowledging the debt or duty, and confirming the contract, renders it a security of a higher nature than those entered into without the solemnity of a seal. Hence bond debts are preferred to those due on simple contract. as to the Obligor. 8. When the condition of a bond is not performed, Its Effect it becomes forfeited and absolute in law; and is a charge on the personal estate and chattels real of the obligor, but not on his freehold lands; therefore any settlement or disposition which he makes in his lifetime of his freehold estates, whether voluntary or not, will be good against bond creditors. For a bond Treat of Eq. being no lien whatever upon lands, in the hands of B. 1. c. 4. the obligor, much less can it be so, when those lands are disposed of to a stranger. § 14. Præt. 293. 9. A purchaser for a valuable consideration is not Gilb. Lex affected by notice of a bond debt; for he is to look Treat. of Eq. no farther than his title; and the bond debt is no B. 1. c. 4. part of the title, till it is placed on the land by a judgment. $12. 10. If the obligor binds himself and his heirs in a As to his bond, it will be then a lien on all the freehold estates Heir. whereof he dies seised, and will bind his heirs; who, Tit. 1. §. 57. in default of personal assets, will be bound to discharge it out of the real assets of the obligor. So that a bond is a collateral, though not a direct charge on lands. 11. It has been stated that reversions, after estates Tit. 17. § 22, for years, are immediate assets. and reversions after &c. estates for life are quasi assets; in both which cases they are liable to the payment of bond debts: that Tit. 1. § 58. As to a Devisee. reversions expectant on estates tail are assets when they fall into possession; in which case they are liable to the bond debts of the person who was the original donee of the reversion, and to whom the person claiming such reversion must make himself heir; but not to the bond debts of any intermediate heirs, who were entitled to such reversion. 12. It has been also stated, that by the stat. 3 William and Mary, c. 14. the heir of a person indebted by bond is answerable, though he aliens the estate. 13. By the same statute, § 2 & 3, all devises of lands are declared to be fraudulent and void, as Tit. 38. c. 1. against bond creditors: an estate in reversion is within this act. A devise of such a reversion by the heir of the obligor is also within this statute; and in such a case, the lands devised are liable. Kynaston v. Clarke, Tit. 17. § 30. Where the Remedy may exceed the Penalty. Wilde v. Clarkson, 6 Term R. 303. 3 Bro. Rep. 492. 525. Bonds to the 14. When a bond was forfeited, the penalty became the legal debt, and there was no relief given against it, but by a court of equity; where the obligee is only allowed to recover his principal, interest, and costs. But now, by the stat. 4 Ann. c. 16. § 12. payment of the principal, interest, and costs is good at law. 15. Although at law there can in general be no remedy beyond the penalty, because in that the obligee seems to have taken his security; yet as it is on the foundation of doing equal justice to both parties that equity proceeds, it will, on any application for a favour from the obligor, compel him to pay the principal, interest, and costs, though exceeding the penalty. 16. By the stat. 33 Hen. VIII. c. 39. § 2. it is enacted, that all obligations and specialties concerning the king and his heirs, or made to his or their use, shall be made to his Highness and to his heirs, kings, in his or their name or names, by these words, domino regi, and to no other person to his use; and to be paid to his Highness by these words, solvend. Jenk. 226. "eidem domino regi hæred." vel executoribus suis, with other words used in common obligations; which obligations and specialties shall be in the nature of a statute staple. Bunb. 58. 17. It has been long settled, that a bond for per- 7 Rep. 20 b. formance of covenants is within this statute. In a modern case it was held, that a bond taken to the Rex v. Yale, king, his heirs and successors, was within this statute; the words domino regi hæredibus et successoribus suis, being only directory. But where a bond is not originally made to the king's use, but comes to him by assignment, or forfeiture; it is not within the first part of this act. 18. By the 27th section of this law it is enacted, that the king shall not be excluded from demanding his just debts, against any of his subjects, as heir or heirs to any person or persons indebted to the king, or to other persons to his use; albeit the word heir be not comprised in such recognizance, obligation, or specialty. zance. 19. It has been stated that a recognizance is a Recognibond acknowledged in the Court of K. B. or C. P., Tit. 14. § 13. or before the mayor of the staple at Westminster, or the recorder of London; and the several circumstances required to render it a lien upon lands are there mentioned. It is in most respects similar to a bond; the difference being chiefly, that a bond is the creation of a new debt; whereas a recognizance is the acknowledgement upon record of a former debt. |