the sealing and delivery of these presents as hnbefe is mentd which the sd (debtor) doth hby expssly admit and acknge and also for and in conson (a) of the sum of 5s. of lful money to the sd (debtor) &c. pd by &c. the receipt &c. He the sd (debtor) Hath granted bargd and sold and by these prests Doth grant &c. unto the sd (creditor) his exs ads and ass All and singr the household furniture beds bedding plate china linen glass books pictures and or. the goods chattels and effects mentd or described in or by the inventory thof hunder written or hrunto annexed and all the este right title int property claim and demand whatsr both at law and in equity of him the sd (debtor)

No. CCLXVI.
Payment of
Money.

Proviso for redemption.

of in or to the same resply To Have and to Hold and take and Habendum. enjoy the sd household and or. furniture goods &c. and all and singr or. the preses hnbefe bargd and sold or mentd or intended so to be with their and evy of their rights members and appts unto the sd (creditor) his exs &c. to and for his and their own proper use and bent subject nevss to the provo for redemption of the preses hnaftr contd that is to say Provided always and these prests are upon this expss condon that if the sd (debtor) his exs or ads do and shall well and truly pay unto the sd (creditor) his exs ads or ass at or in the dining-hall of the Inner Temple London betn the hours of ten and twelve of the clock in the forenoon the sum of £ of lful money of the U. K. of G. B. and Ire. of English value and currency with int for the same after the rate of five per cent. per ann. on the day of next ensuing the date of these prests witht any deduction or abatement whatsr [other than the present or any future tax upon property or income or or. tax in the nature thf paye by the sd (creditor) in respect of the same] then and in such case the bargain and sale or or. assurance hnbefe made (b) shall cease and forthwith be delivd up to be cancelled And (c) the sd (debtor) doth hby for himself his hrs exs and ads covt promise and agree with and to the sd (creditor) his exs ads and ass in manner followg that is to say That he the sd (debtor) his exs or ads

(a) If the sale be to a purchaser, this part is unnecessary.

(b) If the bill of sale accompany a bond or warrant of attorney, say, togr

with the sd hnbefe in pt exted bond (or warrant of atty')."

(c) Where it is a purchase, this covenant must be omitted.

Covenant by

money.

debtor to pay

No. CCLXVI. shall and will well and truly pay or cause to be pd unto the sd Payment of

Money.

(creditor) his exs ads and ass the sd sum of £

at the time and after the rate and in the manner afd (a) apptd for the payment thf accdg to the time intent and meang of these prests And lastly the sd (debtor) for himself &c. (clause of warranty, see ante, No. CCLXIII.) (b)

Memorandum of Delivery of Possession, see ante,
No. CCLXIII.

Definition of a

bond.

Covenant by creditor.

SECT. 1. A bond or obligation is a deed whereby one called the obligor binds himself to one called the obligee to pay money or do

(a) If the bill of sale accompany a bond or warrant of attorney, say, "in the manner hnbefe and in the condon (or defeazance') of the sd in pt recited bond (or warrant of atty') appted for the paymt thof accorly."

(b) If it be necessary, add here: " And the (creditor) for himself &c. doth covt &c. with the said (debtor) by these prests that he the sd (creditor) his exs &c. shall and will immly after the rect of the sd sum of £

accg to the true intent and meaning of the condon afd upon the request of the sd (debtor) well and truly deliver unto the sd (debtor) &c. the said goods &c. and all or. the preses which the sd (creditor) recd of the sd (debtor) at or before the sealing and delivery of these prests in as good plight and condon as the same and evy of them at this present time now are."

Bonds.

Difference be

tween obligor and obligee.

able on a bond.

some other thing. In Underwood v. Harwood, 10 Ves. 226, the obligee is taken for the person bound, that is to say, in the vulgar sense of the word, the person obliged; but as this is not the legal use of the term, it is proper to observe the distinction. When a bond is simple, or single, that is, without a condition, it is properly an obligation; but when a condition is annexed, as is usually the case, it is a double bond, most commonly called a bond, Shep. T. 367. The Penalty. obligor is generally bound in a penal sum, double the amount of the What recoversum intended to be secured, and on his failing to perform the condition the bond was formerly forfeited at law, but equity interposed to restrain the obligee from taking more than his principal and interest. And in pursuance of the same principle, the 4 & 5 Anne, c. 16, provides, that when a bond is given to secure the payment of a sum of money, a tender of the principal sum due, with interest and costs, shall be a full satisfaction of such bond, though the same at law may be forfeited. By an equitable construction of this statute, it is held, that interest cannot be recovered upon a bond beyond the amount of the penalty, it being a settled point, both at law and in equity, that the penalty is the debt, except in particular cases, Wild v. Clarkson, 6 T. R. 303; Clark v. Seton, 6 Ves. 415; see further Dig. p. ii. tit. BONDS.

may not be par

ties to a bond.

2. All persons having a legal capacity to contract may, in general, Who may or bind themselves in bonds and obligations, 4 Co. 124; 5 Co. 119. But an infant cannot bind himself in a bond with a penalty, not even for necessaries, 1 Lev. 86; Fisher v. Mowbray, 8 East, 330. So the bond of an idiot, or of one that is drunk at the time of making the bond, is void, 2 Stra. 1104; Bull. N. P. 172. So of a feme covert, except the husband assents, 5 Co. 119 (see AGREEMENTS, Pref. sect. 2). So a bond given by a man in duress, that is, unlawful imprisonment, is void, 2 Inst. 482; 4 Inst. 97; Allen, 92. And one partner cannot bind the others by bond, unless an express power to that effect be given, Harrison v. Jackson, 7 T. R. 207. Executors and administrators are bound by the obligation of the testator, although not named, but the heir is not bound, unless he is named. And the heir, on a defect of personal assets in the hands of the executors and administrators, is bound to discharge the same, provided he has real assets, 2 Comm. 340; Bull. N. P. 175. If the obligation be made to one and his heirs, the executors and administrators shall take advantage of it, Shep. Touch. 376. When two or more bind themselves in a bond by the words, " We bind ourselves," and say no more, the bond Bond joint only. is joint; but if it be thus, "We bind ourselves, and each of us, our Joint and sevehrs, and each of our hrs &c.," the bond is joint and several &c.,

ral.

Bonds.

Several only.

Effect of a bond joint or joint and several.

Contribution by co-sureties.

Form of a bond.

Shep. Touch. 376. If it be expressed in a bond that two or more persons are jointly and severally bound, and one of them does not execute the bond, it is not the joint bond of those who executed it, but only the several bond of each of the parties signing, Elliot v. Davis, 2 B. & P. 338. If in a bond conditioned for the payment of a sum, it be worded thus, "For which payment to be well and faithfully made we bind ourselves, and each of us for himself for the whole and entire sum of £ ," it has been held that this was a several bond only, and that the obligees, by removing the seal of one of the obligors, did not render it void as to the others, Collins v. Prosser, 1 B. & C. 682.

3. When the obligation is joint, the obligee must sue the obligors altogether, Shep. Touch. 375. When the obligation is joint and several, he may either sue them altogether, or each of them separately; but he may not sue some and spare the rest, 1 Saund. 291. If the bond be joint, and one of the obligors die, the survivor only is charged; but it is otherwise where the bond is joint and several, 2 Vern. 99.

4. The right of contribution, as between co-sureties, is not precisely the same at law as in equity. Where several parties are bound, they must be bound in one and the same penalty, to give co-sureties a right of action for contribution; but if each is bound for a distinct penalty, it does not make the one bound for the penalty of the other. For the remedy at law is founded on the principle, that one pays that to which all are liable, Collins v. Prosser, 1 B. & C. 682. On the other hand, contribution in equity being founded on a principle of justice and equality, it is immaterial whether co-sureties give joint or separate bonds, except that in the latter case they must contribute to the amount of the security; but if they are all jointly bound in one obligation in a penal sum, they must all contribute equally, Deering v. Earl of Winchelsea, 2 B. & P. 270.

5. Although the usual manner of framing a bond is the best, yet any words in a deed, sealed and delivered, which appears on the face of it to have been intended as a bond, will make a good obligation, Cro. Car. 129. An obligation must be on parchment or paper, and sealed (which is indispensably requisite), otherwise it is void, Co. Litt. 35, b.; Shep. Touchst. 376; Dyer, 19, a.; but signing is not essential to its validity, 2 Cro. Eliz. 642, nor any particular form of delivery, Co. Litt. 36, a. If the bond be altered by the obligee, although but in an immaterial point, he vacates the deed, 10 Co. 92; Bull. N. P. 267. A release of a bond, or a dispensation, with its

conditions, must be by deed, Sellers v. Bickford, 8 Taunt. 31; S. C.

J. B. Moore, 460.

Bonds.

6. The want of a consideration to a bond affords no ground of ob- Consideration. jection; but if there be any thing illegal in the consideration, the defendant is allowed to plead it in bar to the action, Fallowes v.

Taylor, 7 T. R. 477.

Illegality of, vitiates bond.

condition.

7. If the condition of a bond be to do that which is unlawful, im- Condition of a bond. possible, or so insensible and uncertain that the meaning cannot be known, it is void, Shep. Touch. 372; 2 Salk. 462. So if the condition be against the provisions of a statute, the rules and claims of decency, and the dictates of morality, it is void at law and in equity, 1 Fonbl. Eq. 228. Bonds entered into for particular purposes are declared void by several statutes, as by 5 & 6 Ed. 6, c. 16, bonds given for buying and selling offices; by 13 Eliz. c. 5, for avoiding the debt and duty of others; by 16 Car. 2, c. 7, and 9 Ann. c. 14, for procuring the return of a member of Parliament; by 12 Ann. c. 16, bonds upon usurious contracts. The condition of a bond being in Construction of favour of the obligor, as protecting him from the penalty, 1 Saund. 16, it is literally construed, and may be restrained by the recital; as where, in the condition, it was recited, that a sheriff had appointed the defendant bailiff of a hundred within his county, it was adjudged that the words "all warrants," in the condition itself, should be intended only, all warrants which were directed to the defendant, as bailiff of the said hundred, and not other warrants, cited in Lord Arlington v. Merrick, 2 Saund. 411, 412. This rule of construction is more strictly observed in favour of sureties, where, in the condition of the bond, it was recited, that the surety was bound for six months only, although the words in the condition were indefinite, " during all the time he shall continue &c." Lord Arlington v. Merrick, 2 Saund. 411. So a bond entered into by a surety for the faithful service of a clerk to any person or persons (not forming an incorporated company) becomes void as soon as there is any change in the firm, by death or otherwise, Wright v. Russell, 3 Wils. 532; S. C. 2 Bl. 934; Barker v. Parker, 1 T. R. 287; unless the condition be so worded as to provide for this contingency.

dition.

8. If the words at the close of the condition, " Then this condition Form of conshall be void," be omitted, the condition is void, but the obligation remains in force; but the omission of the subsequent words," or else shall remain in full force," is immaterial, Sheph. Touchst. 371. If the condition of a bond be to pay money, or to do any other thing, and no time be named in the condition, it is now settled that the bond shall be payable on the day of the date, Farquhar v. Morris, 7 T. R.

VOL. I.

PP