(E) of the Condition and Consideration of the Obligation.

interest, so that here is no ground to make the representative of A a party in order to assist him in taking the account. The other pretence is, in order for a contribution. It is admitted by all the answers, that A is dead insolvent; and therefore this differs from the case of Ashhurst v. Eyre, (2 Atk. 51; 3 Atk. 341,) determined before me upon a plea: for though there was an admission of insolvency in that case, yet it did not appear whether the principal and interest might not have been paid by the co-obligor, who was not before the court, and that was the reason of allowing the plea. His lordship therefore overruled the objection for want of parties.

(a) Sed vide Collins v. Griffith, 2 P. Wms. 313;] ||but see Angerstein v. Clarke, 2 Dick. 738; Madox v. Johnson, 3 Atk. 406.||

Where the obligors are all principals, it is clear they must all be made parties in equity.

Cockburn v. Thompson, 16 Ves. 326; Bland v. Winter, 1 Sim. & Stu. 246.||

But it is held, that if a judgment be had at law against one obligor, you may sue the executor of him alone, to discover assets, because the bond is drowned in the judgment.

2 Vent. 348.

{If A, B, and C, separately become bound, in three different bonds, as sureties for D's duly accounting, and any one of them be compelled to pay the whole debt of the principal, he may compel the two others to contribute in proportion to the penalties of their respective bonds.

2 Bos. & Pul. 270, Deering v. The Earl of Winchelsea.}

As the creditor is entitled to the benefit of all the securities the principal has given to his surety, so the surety has as full an equity to the benefit of all the securities the principal gives the creditor.

Wright v. Morley, Morley v. St. Alban, 11 Ves. 22.||

Thus, if the principal in a bond, being arrested, gives bail, and judgment is had against the bail, and the sureties are afterwards sued on the original bond, and are obliged to pay the money, the sureties shall have the judgment against the bail assigned to them, in order to reimburse them what they had paid, with interest and costs; and the sureties in the original bond are not to be contributory, for the bail stands in the place of the principal.

2 Vern. 608, Parson v. Priddock.

{Where the principal assigns a fund to trustees to pay a creditor whom the surety afterwards pays, and the proceeds of the fund are then paid over by the trustees, the surety is entitled to the benefit of the fund, and may recover it from the person who possesses it, in an action for money had and received in his own name.

2 Bin. 382, Miller v. Ord.}

(E) of the Condition and Consideration of the Obligation.

A BOND conditioned for any matter contrary to law, or given for an illegal consideration, is void; as, if it be conditioned not to exercise a certain trade anywhere in the kingdom, this is an injurious and illegal restraint of trade, and the condition is void. (a) But it is otherwise if the condition be only not to trade within certain reasonable limits.(b)

(a) Mitchell v. Reynolds, 1 P. Wms. 181. See Lord Macclesfield's elaborate judg ment. An illegal consideration vitiates a bond. Page v. Trufant, 2 Mass. 159, 162; Bruce v. Lee, 4 Johns. 411; Trustees v. Galatian, 4 Cowen, 340; Morton v. Fletcher,

(E) Of the Condition and Consideration of the Obligation.

2 Marsh. 138; Davidson v. Givens, 2 Bibb, 200; Lewis v. Knox, 2 Bibb, 453; Davis v. Hull, 1 Lit. 9; Noel v. Fisher, 3 Call, 215; Tuxbury v. Miller, 19 Johns. 311; Goodwin v. Blake, 3 Monr. 106; Lowry v. Barney, 2 Chipm. 11; Mitchell v. Vance, 5 Monr. 529; Fanshor v. Stout, 1 South. 319; Churchill v. Perkins, 5 Mass. 541; Brown v. Getchill, 11 Mass. 16; Greenwood v. Golcock, 2 Bay, 67; Winthrop v. Dockendorff, 3 Greenl. 156; Baker v. Haley, 5 Greenl. 240; Kavanagh v. Saunders, 8 Greenl. 422; Clap v. Coffin, 7 Mass. 101. (b) Ibid. Chesman v. Nainby, 2 Stra. 739; 3 Bro. P. C. 349; Clerk v. Comer, Ca. temp. Hard. 53; 7 Mod. 230, (oct. ed.) Davis v. Mason, 5 Term R. 118; Bunn v. Guy, 4 East, 190; and see Gale v. Reed, 8 East, 80.

So, where a bond was conditioned to indemnify the plaintiff against a note for 3501., given by him to the prosecutor of an indictment for perjury against some of the obligors, on a corrupt agreement, that the prosecutor should not appear to give evidence; the bond was held void, and the obligee could not recover, since it was an agreement to stifle a prosecution for corrupt perjury.

Collins v. Blantern, 2 Wils. 347; and see 8 Term R. 390. A bond given to suppress a prosecution of malicious mischief is void. Cameron v. M'Farland, 2 Car. Law Repos. 415. In New Jersey a bond given to a person who had been injured by a battery, in order to satisfy him for the injury and to prevent his complaining to the grand jury, was held valid. Price v. Summers, 2 South, 578.g

So, also, a bond given for payment of a sum of money to plaintiff, to induce him to discharge a person in his custody as an impressed sailor.

Pole v. Harrobin, 9 East, 416, n. A bond for ease and favour is void. Kavanagh v. Saunders. 8 Greenl. 422; Baker v. Haley, 5 Greenl. 240; 3 Greenl. 156; 5 Mass. 317; 7 Mass. 101; 5 Watts, 468.

So, also, a bond given to cover the price of goods sold by the obligees to the obligor for the purpose of an illegal traffic from the East Indies, (the obligees assisting in preparing the goods for such illegal voyage.)

Paxton v. Popham, 9 East, 406.

Where the consideration on which a bond is given is illegal by any statute, the defendant may avoid the bond by pleading; or if the condition be illegal on the face of it, he may demur; and if the bond contain several conditions, although only one of them be void by statute, yet the whole bond is void.

Norton v. Syms, Moor, 856; sed vide Yale v. Rex, Bunb. 58; 2 Bro. P. C. 381; 2 Bl. R. 1108. Where the bond is void as to part at common law, still it may be good as to the residue. Newman v. Newman, 4 Maul. & S. 71; and see Dacosta v. Davis, 1 Bos. & Pul. 242; United States v. Brown, Gilpin, 155; 1 Gallis. 99; 4 Wash. C. C. R. 620; 2 Bailey, 501; 7 Monr. 317; 2 Greenl. 479; 7 Yerg. 17. As to bonds and securities void under the gaming act, 9 Ann. c. 14, see tit. Gaming. See also Davidson v. Givens, 2 Bibb, 200; Jones v. Jones, 2 Taylor, 110. Under the statutes against sale of offices, see tit. Offices and Officers. See also Lewis v. Knox, 2 Bibb, 453; Davis v. Hull, 1 Litt. 9. Under the statutes against simony, see tit. Simony; under the statutes against usury, see tit. Usury; as to marriage-brokage bonds, see tit. Marriage; and as to bonds given to secure differences on illegal stock-jobbing transactions, see Cannan v. Bryce, 3 Barn. & A. 179; Amory v. Merryweather, 2 Barn. & C. 573.

A bond given on an immoral consideration is void; as, if given by a man to a woman as a premium pudicitiæ, in consideration of future cohabitation. (a) But it is otherwise if given in consideration of past cohabitation; and this notwithstanding the obligor be a married man during the wholeperiod of cohabitation.(b)

(a) Walker v. Perkins, Burr. 1568; Turner v. Vaughan, 2 Wils. 339; Lady Cox's Ca., 3 P. Wms. 339; Franco v. Bolton, 3 Ves. 372. (b) Nye v. Mosely, 6 Barn. & C. 133; S. C. 2 Sim. & Stu. 269. See Winnebrenner v. Wiesiger, 3 Monr. 35; Fro

(F) Assigning Breaches, and Pleading.

vinger v. M.Burney, 5 Cowen, 253; Forsythe v. State, 6 Ham. 21; Singleton v. Bramar, Harper, 201; Cusack v. White, 2 Rep. Const. Ct. 279. When the contract has been executed, although founded on an immoral consideration, it is binding on the parties at common law. Denton v. English, 2 N. & M. 581; Worcester v. Eaton, 11 Mass. 368.7

A bond given by a debtor some time after a general composition of 6s. 8d. in the pound with his creditors, conditioned to pay to one of them the residue of his debt, is good, though given without the knowledge of the other creditors; but if given before, or at, the time of the composition, it would be void, as being a fraud upon the other creditors.

Took v. Tuck, 4 Bing. 224; 9 Barn & C. 437, S. C.; and see Cockshot v. Bennett, 2 Term R. 763; Butler v. Rhodes, 1 Esp. 236. Ex parte Sadler, 15 Ves. 52; Brady v. Shiel, 1 Camp. 146. When the consideration of a bond is that the obligee shall withdraw his opposition to an insolvent debtor's discharge, the bond is void. Bruce v. Lee, 4 Johns. 411; Tuxbury v. Miller, 19 Johns. 311; Goodwin v. Blake, 3 Monr. 106; and see Waite v. Harper, 2 Johns. 386; Wiggin v. Bush, 12 Johns. 306.g

A bond given to persons who would be prejudiced by the passing of a private act of parliament, in consideration of their withdrawing their opposition to it, is not illegal. It cannot be considered a fraud upon the legisla

ture.

Vauxhall Bridge Company v. Earl Spencer, Jac. R. 64, 2 Madd. 356.||

See further, on the subject of conditions of bonds, Vol. II. tit "CONDITIONS," (K), (L), &c.

(F) How the Breach of the Condition must be assigned and set forth, and the Manner of Pleading Performance, and in Bar.

THE usual way of declaring and setting forth the breach on a bond is, that the defendant per scriptum suum obligatorium sigillo suo sigillatum acknowledged, &c., and therein to lay a place where it was made, that it may receive trial, in case it be denied. Also, it is usual to say, that the bond was sealed and delivered; but this has been held not to be of necessity, and to be cured by pleading over, the calling it scriptum suum obligatorium implying so much. But it hath been held, not to be sufficient for the plaintiff to declare quod reddat ei so much, without adding quas ei debet et injuste detinet. Cro. Ja. 420; Cro. Eliz. 773; 3 Lev. 348; 6 Mod. 306; Ld. Raym. 336, 763; 2 Ld. Raym. 1043.

[The bond being the sole foundation of the action, the court must see that it is properly executed; and therefore it is matter of substance, that profert be made of it. And the defendant being entitled to it by law, the court can in no case dispense with it.

Soresby v. Sparrow, 2 Stra. 1186; 1 Wils. 16, S. C.; 1 Tyler, 311. But if the defendant plead without claiming oyer, the plaintiff may give a copy of the bond in evidence, on the usual proof that the original is lost, though he declared with a profert of the original. Taylor v. Peyton, 1 Wash. 252.

But where a bond is lost, it is now holden, that the plaintiff may declare specially," that it is lost by time and accident," and without a profert. And where he has made a profert, and the deed is lost, he may move that the production of a copy shall be oyer, or if he have no copy, to amend his declaration, and plead as above.

Read v. Brookman, 3 Term R. 151; Totty v. Nesbitt, Ibid. 153, n.; ||Bolton v Carlisle, 2 H. Bl. 259;|| 1 Cr. Pr. 141; Matison v. Atkinson, 3 Term R. 153, n.; and see Whitfield v. Fausset, 1 Ves. 392.] United States v. Spalding, 2 Mason, 478; Every v. Merwin, 6 Cowen, 360.

Although the courts of law now dispense with the profert of a deed

(F) Assigning Breaches, and Pleading.

where it is alleged to have been lost by time or accident, or to be in the possession of the defendant, the courts of equity have still concurrent jurisdiction in these cases. (a) But in bills framed for relief, as well as discovery, they require an affidavit to be annexed to the bill, that the deed alleged to be lost is not in the possession or power of the plaintiff. This precaution prevents an obligee in a bond from enforcing the obligation without risk of being affected by what might appear against him were it produced.(b)

(a) Atkinson v. Leonard, 3 Bro. Ch. Ca. 218; Toulmin v. Price, 5 Ves. 238; Ex parte Greenway, 6 Ves. 813; East India Company v. Boddam, 9 Ves. 464. blanque on Equity, (5th edit.) 17, n.||

(b) FonIn an action of debt for part of a debt upon contract or obligation, the plaintiff must acknowledge satisfaction of the residue; for there must be no variance from the specialty.(c) But in debt upon two bonds, the plaintiff in his declaration may acknowledge the payment of 101. in part, without showing upon which bond it was paid; for it is immaterial, and can no way prejudice the defendant.(d) Besides, the money might have been paid generally, without any application to either bond.(e)

(c) Cro. Ja. 409; Cro. Car. 436; Allen, 57; 2 Vern. 129. (d) 3 Bulst. 244; Roll. R. 423. (e) However, in such case, the plaintiff has his election to which bond to apply the money. Bloss v. Cutting, 2 Str. 1194.] The rules of our law as to the application of payments, where several debts are due, have been derived generally from the civil law, though the text of that law does not appear to have been consulted in the decision of our cases till Clayton's case, in Devaynes v. Noble, 1 Meriv. 572, determined by Sir W. Grant, M. R.; a circumstance which will, perhaps, account for our decisions, on the subject being, in some respects, at variance with the principles of the civil law, and not always reconcilable with any general rule, or with each other. The general principle is, that where there are two distinct debts, the debtor, in paying a sum, may direct to which debt it is to be applied; and the application may be made, not only by an express direction, but may be inferred from the circumstances attending the payment. Peters v. Anderson, 5 Taunt. 596; Newmarch v. Clay, 14 East, 239; Shaw v. Picton, 4 Barn. & C. 715. The mere entry, however, by the debtor, in his own books, of the account on which he pays, will not be evidence of an appropriation by him (2 Vern. 606); and it is the same as to such an entry made by the receiver, uncommunicated to the payer. 2 Barn. & C. 65. If the payer makes no express application, and no inference of his intention can be arrived at, then the right of appropriating the payment to one debt or the other devolves on the receiver. Mayor, &c. of Alexandria v. Patten, 4 Cranch, 317, 320. An officer of the United States, who holds two bonds, with different sureties, has no right to make an appropriation to one of them, so as to bind the United States. United States v. January et al., 7 Cranch, 572, 575. When neither the debtor nor the creditor has made any application of the payments, the court will apply them to the debts for which the security is the most precarious. Field v. Holland, 6 Cranch, 8, 28. See Sheehy v. Mandeville, 6 Cranch, 253, 264.7 According to the civil law, the election was to be made at the time of payment, as well in the case of the creditor as in that of the debtor. "Permittitur ergo creditor constituere in quod velit solutum; sed constituere in re præsenti, hoc est, statim atque solutum est; cæterum postea non permittitur." Dig. lib. 46, tit. iii. q. 1, 3. But our cases determine that the creditor is not bound to make such election immediately, but may make it at any time. Wilkinson v. Sterne, 9 Mod. (Leach) 427; Peters v. Anderson, 5 Taunt. 596; Simpson v. Ingham, 2 Barn. & C. 65. Many decisions of our courts seem to establish that the creditor's right of election is perfectly absolute, and that he is not bound to regard either the priority in time of the two debts, or the circumstance of one of them being more burdensome than the other to the debtor. Thus in Wilkinson v. Sterne, ubi sup., Lord Hardwicke held, that a creditor by mortgage, and also by bond with penalty, might apply a general payment to the interest of the mortgage, and was not bound to place it to the discharge of the bond. So in Peters v. Anderson, ubi sup., where the plaintiff had first served the defendant under a deed of covenant, and earned wages, and then had earned further wages on a common agreement, and payments were made generally by defendant, which if placed to the first debt on the covenant, would extinguish it, it was held, that the plaintiff was not bound to apply them to the first debt on the deed, but that he might sue in covenant for the balance due under

(F) Assigning Breaches, and Pleading.

the deed, and in assumpsit for that accrued subsequently. So in Plomer v. Long, 1 Stark. 153, Lord Ellenborough held, that a creditor was not bound to apply a general payment to a specialty debt with surely, in preference to a simple-contract debt without; and see Hall v. Wood, 14 East, 243, n. (a). In one case, indeed, where a debtor owed money on specialty carrying interest, and also on simple contract not carrying it, it was held that a general payment was to be applied to extinguish the specialty debt, that being prior in point of time. Manning v. Westerne, 2 Vern. 606. (3d edit.) The principle of the civil law was, that an unappropriated payment might be applied by the creditor at his own election, if the election was made at the time of payment; that if not then made, the law presumed that the payment was made on account of the debt most burdensome to the debtor; and if both debts were equal in this respect, then that it was made on account of the demand prior in point of time. "Si autem nulla causa prægravet, (id est, si omnia nomina similia fuerint,) constat quoties indistincte quid solvitur, antiquiorem causam videri solutum." Dig. lib. 46, tit. iii. 5. Though this doctrine has never been distinctly adopted as a principle of decision in our courts, and though the above cases are certainly irreconcilable with it, yet in some other cases it appears to a certain extent to have been recognised. Thus in Heyward v. Lomax, 1 Vern. 23, (3d edit.) where a debtor owing money on mortgage, carrying interest, and also on simple contract, paid a sum generally, it was taken to be paid towards discharge of the mortgage, " because it was natural to suppose that a man would rather elect to pay off the money for which interest was to be paid, than the money for which no interest was to be paid." And in Meggot v. Mills, Lord Raym. 287, Holt, C. J., laid it down, with the assent of the other judges, that if A, while in trade, become indebted to B in 100%., and then after leaving trade contracted a further debt of 1007., and then paid 1007. generally, B must apply this payment to the first debt, and could not apply it to the second, and sue out a commission of bankrupt on the first; which was also expressly decided by Lord Kenyon in Dawe v. Holdsworth, Peake, Ca. 64. And in a case where A deposited a note of B with his bankers as security for money owing to them, and A contracted a further debt to the bankers without any security, and then paid them money on account, Lord Kenyon held that the bankers were bound to apply the payment in discharge of the debt for which the note was security. Hammersley v. Knowlys, 2 Esp. Ca. 66. The two cases of Meggot v. Mills, and Dawe v. Holdsworth, have been considered to rest on the peculiar and special ground of bankruptcy, and on the presumption that the debtor must have intended to apply the payment to extinguish that debt which subjected him to the criminalty (as it was then considered) of being a bankrupt; and the same kind of presumption appears to have been the ground of the late decision, where it was held, that where one of the debts was illegal, and the other legal, a general payment must be applied by the receiver to the legal debt. Wright v. Laing, 3 Barn. & C. 165. The case of Hammersley v. Knowlys may, perhaps, be deemed irreconcilable with Lord Ellenborough's decision in Plomer v. Long. In the cases of Meggot v. Mills, Dawe v. Holdsworth, Hammersley v. Knowlys, and Wright v. Laing, the payment, it is to be observed, was held applicable to the debt oldest in point of time; but that circumstance does not appear to have operated as a ground of decision. Those cases decidedly establish that certain limits are to be placed upon the creditor's right of applying general payments, which in many of our cases, and dicta of our judges, has been treated as an unqualified right, to be exercised purely according to the creditor's direction. But if the principle of these cases is admitted, it seems difficult not to extend it to the length to which it is carried by the civil law. If the circumstance of one debt exposing the debtor to bankruptcy, (as in Meggot v. Mills, and Dawe v. Holdsworth,) is to be considered a ground for presuming an intention to discharge that in preference to another debt unattended with such serious consequences, it seems difficult to deny that the same presumption arises, to a certain extent, from the fact of one debt being in any degree more onerous to the debtor than the other (as in case of its carrying interest, or being with a penalty, or being a specialty, or with a surety); and the rule of the civil law, that the general payment shall be taken to be paid in graviorem causam," surely appears both more equitable and more certain than admitting the general right of the creditor to make the application, and, at the same time subjecting it to the sort of undefined qualification put upon it by the four cases above referred to. See Sir W. Grant's luminous judgment, 1 Meriv. 604, and Perris v. Roberts, 1 Vern. 34. It is now clear that the creditor's right to apply an indefinite payment arises only in the case of distinct and insulated debts, not in the case of several items composing one general account: in the latter case it is settled, "there is no room for any other appropriation than that which arises from the order in which the receipts