No. CLXXXII.

*A Bill of Lading of Goods on board a Ship or Vessel (1). (Usual form.)

SHIPPED by the grace of God in good order and well conditioned by (owner) in and upon the good ship called the

whereof

is master under God for this present voyage, and now riding at anchor in the (place), and by God's grace bound for

to

say,
bales of, &c. (as the case may be), being marked and
numbered as in the margin, and which are to be delivered in the like
good order and well conditioned at the aforesaid port of

or to

the

acts of God, the king's enemies, fire, and all and every other the
dangers and accidents of the seas, rivers and navigation of whatever
nature and kind soever [save for risk of boats so far as ships are
liable thereto only (2)] excepted, unto
aforesaid,
he or they paying freight for the said goods
with primage
and average as accustomed: (to which may be added, "all which
goods are to be subject to licn for freight, and also for general
balances due from their respective owners;" or,
"and all goods
shipped on board, from whomsoever received, or to whomsoever be-
longing, are to be subject to lien for the freight thereof, and also for
any general balances which may be due from the person or persons

(1) A bill of lading is in the nature of a receipt or acknowledgment by the owner or master of a ship or vessel for the goods delivered on board, where the owner of such goods has only a part of the ship or cargo; where he has the whole ship or cargo, it is usually styled a charter-party (of which see post. "CHARTER-PARTY"), and it usually contains also an engagement to carry the goods safely to the port to which they are destined, and to deliver them safely to the person to whom they may be consigned, perils of the voyage excepted, the master or owner paying the freight agreed upon for the carriage of them. A bill of lading is not often given where there is a charter-party, and where it is to be considered no otherwise than as evidence of the shipment.

(2) The words within brackets are inserted only where the ship ` is homeward bound and the cargo is brought on shore by boats.

BILL OF LADING.

Merchandize.

Merchandize.

BILL OF LADING. to whom they are consigned or addressed.") IN WITNESS WHEREOF the master or purser of the said ship hath affirmed to (number) bills of lading all of this tenor and date, the one of which bills being accomplished, the other to stand void, and so God send the good ship to her desired port in safety, Amen.

Dated in

this

day

of

Remarks.

Stamp.

It will be proper that there be three parts of every bill of lading, for the purpose of one being remitted by post to the consignee of the goods, that he may be apprised of their having been shipped; another delivered to the master, that he may at all times ascertain the particular goods of the party he has on board; and the third to remain in the hands of the owner of the goods, as proof of their having been shipped.

A bill of lading is transferrable from one to another by indorsement similar to bills of exchange, and the delivery of it to the indorsee is considered prima facie evidence of a bona fide and absolute transfer of the legal interest in the goods, unless otherwise expressed in the indorsement.

The latter only of these requires a ştamp, and that only where the goods are exported or carried coastwise, other than to Scotland; see Scotland v. Wilson, 1 Marsh. 204; 5 Taunt. 533. The stamp by the last act is 3s.; see schedule to the act, post. Vol. III. "STAMP."

No. CLXXXIII.

*A Bond (1) from an Administrator (and sureties) to the Ordinary or Ecclesiastical Judge (2) duly to account for Intestate's effects.

BONDS.

Account (administrator).

KNOW ALL MEN BY THESE PRESENTS, that We (the obligor and sureties), of, &c. are jointly and severally holden and firmly bounden (3) unto (the ordinary), ordinary of, &c. in the penal sum of £

(4) of

(1) of the nature of bonds, and in what cases proper under different circumstances, see ante, MOD. PREC. Vol. VI. DISSERT. p. 342. et seq. Less strictness is said to be required in framing an obligation than any other deed, "there being only two things requisite, viz. parties and a sum in which one party is bound." Any instrument therefore properly sealed and delivered, which appears on the face of it to have been intended to take effect as a bond, will be construed as such. Cromwell v. Grunsden, 1 Lord Raym. 335. Cro. Eliz. 561. 729. 886. Cro. Ja. 203. 208.

Joint and several
Obligation.

Bond.

Bond may be by any instrument effect as such.

intended to take

(2) By 22 and 23 Car. 2. c. 10. it is enacted, that all ordinaries 22 and 23 Car. and ecclesiastical judges having power to commit administration of the 2. c. 10. goods of persons dying intestate, shall take sufficient bonds with two or more sureties from the person to whom such administration is committed, duly to account for the effects which shall come to his hands; the act, however, is held not to extend to administrations granted during minorities; Folkes v. Dorminique, 2 Stra. 1137, or pendente lite. Wallis v. Pipon, Aubl. 183. The ordinary has however power by the common law, to take such bonds if he think fit; see ibid. and Vaugh. 96. (3) In order to give surety obligers a right of action for contribution Surety. amongst themselves, if one of them be compelled to perform the obligation, care must be taken to word the bond so as that it is clearly a joint and not a separate obligation of each, the remedy for contribution being founded upon the principle that one of the obligors pays that for which all are liable; for which purpose, where several parties are bound, they should be bound in one and the same penalty, and not each in a separate penalty; see Collins v. Prosser, 1 Barn. and Cress. 682. and Cowell v. Edwards, 2 Bos. and Pul. 238; see also post. p. 74. n. (2).

(4) Upon breach of the condition of a bond, the whole penalty becomes forfeited at law, and formerly the whole sum was recoverable; but by 4 and 5 Ann. c. 16, it is enacted, that when a bond is given for the payment of money, a tender of the principal sum due with interest and costs, will be a full satisfaction of such bond; the intent of the penalty of a bond is now therefore to enable the obligee to recover damages to that extent against the obligor on breach of the condition,

SUP.-VOL. II.

On breach of condition, debt and costs only to penalty recoverable at law.

the extent of the

BONDS.

Account (administrator).

lawful money of the United Kingdom of Great Britain and Ireland, to be paid to the said (obligee), his executors, administrators, successors, or assigns, or his or their lawful attorney or attornies, for which payment to be faithfully and truly made, we bind ourselves jointly, and each of us bindeth himself severally (1), and our, and each of our heirs (2),

But equity will in some cases

enforce specific performance of condition.

On joint and several bond by principals, either party may be sued,

the other contributing his share.

Heirs of obligor

and hence such a sum should be inserted as is conceived to be indubitably sufficient to cover the sum lent, with any presumed arrears of interest which there may at any time be, together with the costs which may be incurred in enforcing payment; and this is the only species of redress that the obligee is entitled to under any species of bond at law, 2 T. R. 388, and with respect to bonds for the payment of money, it is, generally speaking, the same in equity; Hale v. Thomas, 1 Vern. 350; Sharpe v. Earl of Scarborough, 3 Ves. 557; Mackworth v. Thomas, 5 ibid, 329; but as bonds are in equity generally considered as evidences of an agreement between the parties, and entitling the obligee to a specific execution of the thing to be performed, without allowing the obligor to forfeit the penalty where the intent of the penalty was to secure such performance; See Anon. Mosely 37. Norton v. Mascall, 2 Vern. 24; Hale v. Hardy, 3 P. Wms. 188; Howard v. Hopkins, 2 Atk. 371: these courts will, under circumstances requiring it, and when the obligee is the defendant, decree the amount of the whole debt with interest, although it exceed the penalty; Duval v. Terry, Show, P. C. 15; Hale v. Thomas, 1 Vern. 358; Pultney v. Warren, 6 Ves. 192; Clark v. Seton, ibid. 416, 3 Brow. Ch. Rep. 492, 525. But this indulgence is shewn only when the obligor is plaintiff against the obligee, and not where the obligee is so, because the obligee has chosen his own security, and made himself judge what recompense he will have, and therefore there is no equity to better his security; but where the obligee is defendant, he is entitled to all that is due, before any equity can arise to the obligor.

(1) The effect of a joint bond by two or more parties, is at law to create a survivorship, and on the death of either of them the survivor only is liable to the whole; Towers v. Moor, 2 Vern. 99; Simpson v. Vaughn, 2 Atk. 31; but otherwise where they are jointly and severally bound, when they may be severally or jointly sued at the option of the obligce; Towers v. Moor, 2 Vern. 99; Collins v. Griffith, 2 P. Wms. 313; Stanley v. Stock, Mosely 383; ex parte Rowlandson, 3 P. Wms. 405; ex parte Banks, 1 Atk. 106, 2 Ves. 550; ex parte Bond v. Hill, 1 Atk. 96. In equity, however, relief will be given to the party sued against the others, for their proportion, or to the survivor in case of the decease of either of them, and the representatives of the deceased obligor will be obliged to contribute. See Collins v. Griffith, 2 P. Wms. 313; Primrose v. Bromley, 1 Atk. 90; Bishop v. Church, 2 Ves. 371; and even at law the obligee can have but one satisfaction against the joint obligors, and not recover the whole against each of them; ex parte Wildman, 1 Atk. 110. 2 Ves. 371. *And the right of contribution is the same between co-sureties, whether they are bound by the same or by separate instruments; Mayhew v. Crickett, 2 Stark. 185; and see cases cited in note (a) there p. 193; see also ante, p. 73. n. (3).

(2) It is material that this word should be inserted, as unless the

(1), in the

BONDS. Account

year (administrator).

NOW THE

executors, and administrators] firmly by these presents, sealed with our respective seals]. Dated this day of of the reign, &c. and in the year of our Lord CONDITION (2) of the above written obligation is such, that if the CONDITION. above bounden (administrator), administrator of all and singular the goods, chattels, and credits of (intestate) deceased, do make, or cause to be made, a true and perfect inventory of all and singular the goods, chattels, and credits of the said deceased, which have or shall come to the hands, possession, or knowledge of him the said (administrator) or into the hands and possession of any other person or persons for him, and the same so made do exhibit, or cause to be exhibited into the registry of the court, at or before the

day of now next ensuing, and the same goods, chattels, and credits, and all other the goods, chattels, and credits of the said deceased at the time of his death, which at any time after shall come to the hands or possession of the said (administrator), or into the hands or possession of any other person or persons for him, do well and duly administer, according to law; and further do make, or cause to be made, a true and just account of his said administration, at or before the day of ; and all the rest and residue of the said goods, chattels, and credits which shall be found remaining upon the said administrator's account, the same being

less named.

heirs be expressly named, they will not be bound. See Barber v. Fox, not bound un2 Saund. 136; Shep. Touch. 369; but otherwise of executors and administrators, who will be bound whether they be named or not; Co. Lit. 209 a. This liability, however, whether of heirs or executors, is only in case of their having assets from the obligor. Administrators of the obligor are also, by 3 Will. and Mar. c. 14. s. 2. made equally liable with his heirs; the bond is not, however, any lien upon the assets, but only charges the representative in respect and to the extent of the assets which may come to his hand. Bull. Ni. Pr. 175. ; in which it differs from a recognizance, which from the time of its enrolment, see 8 Geo. 1. c. 25. is an immediate lien upon the land of the cognizor, even in the hands of a bona fide purchaser.

(1) Although a bond have no date, or the date inserted be false, yet Date. it will be good if the obligee shew the time of the execution; Cromwell

v. Grunsden, 1 Lord Raym. 335. 5 Mod. 282, S. C.

(2) Care should be taken that the condition of a bond be clear Condition. and explicit, as no evidence can be admitted to explain its import if it be otherwise; Ex parte Hearn, 1 Buck. 165; for the condition of the bond being in favour of the obligor, as protecting him from the penalty, is literally construed, and hence any words expressing the intention will create the conditions; Butler v. Wigge, 1 Saund. 16 Fullerton v. Agins, 1 Salk. 178. Cromwell v. Grunsden, 1 Ld. Raym. 335.