the sd () to the sd (P) by the sd ('s) delivering to Of Goods. the sd (P) one chair in the name of the whole of the sd goods and preses in the presence of CD A B (Vendor) [Seal] Or, Delivery of Possession may be Indorsed thus. Memorandum-On the day and yr within-written (or on the day of ) possession of the goods and preses within bargd and sold was delivered by the sd (V) to the sd (P) by the sd (V's) giving to the sd (P) one chair, &c. Conditional Bill of Sale of Goods and Merchandize. This Indre made, &c. Betn A B of, &c. of the one pt and C D of, &c. of the or. pt Witnesseth That for Testatum. and in conson of the sum of £ in, &c. pd by the sd CD to the sd A B the rect whereof, &c. He the sd A B Hath granted bargained sold and confirmed and by these prests Doth grant, &c. unto the sd C D his exs ads and ass All those, &c. (here name the goods and merchandize) To Have and to Hold the sd goods and Habendum. merchandize and all and singr or. the preses hby bargained and sold for ever And the ed (assignor) for him tion. self, &c. (clause of warranty, as in last Precedent) Pro- Warranty. vided always and it is hby agrd by and betn the sd pties Proviso for to these prests that if the sd A B his exs ads or ass or redempany of them do and shall well and truly pay or cause, &c. unto the sd C D his exs ads or ass the sum of £ on the for the redemption of the sd hby bargained goods Then these prests and evy clause article condon and thing herein contd shall cease deter day of mine and be absolutely void And the sd A B doth hby Covenant for himself his exs ads and ass covt and grant with and to pay, &c. to the sd C D his exs, &c. in manner following that is to say That he the sd A B his exs or ads shall and will well and truly pay or cause, &c. the sd sum of £ — at the time and in the manner afd And in case deft shall happen to be made in paymt of the sd sum of £ or any pt thof on the sd day of according to the true intent and meaning of these presents Then the sd CD his exs ads and ass shall and may peaceably and quietly have rece and enjoy to his and their own proper and absolute use and behoof for ever the sd hby bargained goods and preses and evy pt thof with all and singr the apts witht any iful let suit trouble molestation or denial of the sd A B his exs ads or ass or any or. psn or psns claiming under him And the sd C D for himself his exs, &c. doth hby covt, &c. with the sd A B his Covenant to redeliver goods upon payment. Bonds. exs, &c. that he the sd C D his exs, &c. shall and will Definition. Difference between obligor and obligee. Penalty. What recoverable on a bond. Who may or may not be parties to a bond. Bond joint only. BONDS. § 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 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 obligor is generally bound in a penal sum, double the amount of the sum intended to be secured, and on his failing to perform the condition, the bond was formerly forfeited at law, but equity inter posed to restrain the obligee from taking more than his principal and interest. And in pursuance of the same principle, the 4 and 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. 2. All persons having a legal capacity to contract, may, in general, 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. (see Agreements, Pref. § 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. Suep. Touch. 376. When two or more bind themselves in a bond by the words, 'We bind ourselves,' and say no more, the bond is joint; but if it be thus, We bind ourselves, and each of us, our hrs, and each of Bonds. Joint and several. our hrs, &c.,' the bond is joint and several, &c. Sheph. Touch. 3. When the obligation is joint, the obligee must sue the obligors all together. Shep. Touch. 375. When the obligation is joint and several, he may either sue them all together, 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. Several tion. 4. The right of contribution, as between co-sureties, is not pre- Contribucisely 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. and C. 682. On the other hand, contribution in equity being founded on a principle of justice and equality, it is immaterial whe ther 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. E. of Winchelsea. 2 B. and P. 270. 5. Although the usual manner of framing a bond is the best, Form of a yet any words in a deed, sealed and delivered, which appears on bond. 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. I. B. Moore, 460. 6. The want of a consideration to a bond affords no ground of Consideraobjection, but if there be any thing illegal in the consideration, the tion. defendant is allowed to plead it in bar to the action. Fallowes v. Taylor, 7 T. R. 477. bond. 7. If the condition of a bond be to do that which is unlawful, Condition. impossible, or so insensible and uncertain that the meaning cannot be known, it is void. Shep. Touch. 372. 2 Salk. 462. So if the Illegality condition be against the provisions of a statute, the rules and of, vitiates 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 and 6 Ed. VI. c. 16, bond given for buying and selling offices; by 13 Eliz. c. 5, for avoiding the debt and duty of others; by 16 Car. II. 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 favour of the obligor, as protecting him from the penalty, Saund. 16, it is literally construed, and may be Construc- restrained by the recital; as where, in the condition, it was recited, that a sheriff had appointed the defendant bailiff of a hundred tion of within his county, it was adjudged that the words 'All warrants,' Condition 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 Ld. 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.' Ld. 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, 5 Wilson, 530, S. C. 2 Bl. 934; Barker v. Parker, 1 T. R. 287; unless the condition be so worded as to provide for this contingency. Form of condition. Stamp. 8. If the words at the close of the condition, Then this condition shall 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. 124. When no place is mentioned for the performance of the condition, it must be done to the person of the obligee, if he be within the four seas. But although the place be named, yet if the obligee receive payment in any other place, it is sufficient to save the bond; and by the 4 Anne, c. 4. s. 12, such payment may be pleaded in bar of any action. Hargr. Co. Litt. 212, n. 9. Where a bond is not otherwise charged, it is liable to a com mon deed stamp of 17. 15s., and the progressive duty of 11. 5s. for every 1080 words above the first 1080. As to other stamps, see Annuity Bond, Mortgage Bond, Bond for Payment of Money, and Bond for Replacing Stock. If several persons are bound under one penalty for the performance of the same matters, one stamp is sufficient. Godson v. Forbes, 1 Marsh. 531. If the stamp be insufficient, it is a ground of nonsuit, 2 M. and S. 88; 2 Price, 20; but it is sufficient if the instrument bear a proper stamp when it is produced. 2 Marsh. 485; 7 Taunt. 147. Forms of the Obligatory Part of a Bond, from One to One. Know all Men by these prests That I (obligor) of, &c. am held and firmly bound to (obligee) of, &c. or his certain atty exs ads and ass in the sum of £ (double the condon, see Pref. § 1,) of lful money of Gt Britain to be pd to the sd (obligee) or to his certain atty exs ads or ass to which paymt well and truly to be made I bind myself my hrs (a) exs and ads firmly by these prests sealed with my seal dated this day of in the yr of our Lord 18 and in the yr of the reign of (a) As to the naming of the heirs, see Pref. § 2. From Two or more to One. Know all, &c. That we (obligor) of, &c. and (coobligor) of, &c. or (surety) of, &c. are held, &c. to (obligee) of, &c. in, &c. to be pd, &c. to which paymt we bind ourselves and each of us and each of our hrs exs and ads firmly by these prests Sealed with our seals. Dated, &c. From One to Two or more. Know all, &c. That I (obligor) of, &c. am held, &c. to (obligees) or either of them their or either of their certain atties exs ads or ass in, &c. to be pd, &c. to which, &c. I bind myself, &c. Sealed, &c. Dated, &c. From One to a Corporation. Know all, &c. That I (obligor) of, &c. am held, &c. to (obligees) their certain atties successors or ass in the sum of £ of, &c. to be pd to the (obligees) their, &c. to which paymt, &c. Conditions of Bonds. Bond from a Receiver, Obs. As to the form, &c. of the condition, see Pref. § 8. Το Account. Know all, &c. That, &c. (see Forms of the Obligation) Obligation. Whas the above-named (obligee) hath retained and em- Recitals. ployed the above-bounden (obligor) to be the receiver of the rents issues and prfts of all and singr his the sd (obligee's) messes lds and tents situate lying and being in, &c. Now the condition of this obligation is such That if Condition. the sd (obligor) shall and do from time to time and at all times hraftr as often as he shall be thereunto requested by the sd (obligee) his hrs exs ads or ass well and truly pay or cause to be pd unto the sd (obligee) his hrs, &c. all such sum and sums of money as shall be by him had and recd of the sd rents issues and prfts and render to the sd (obligee) his hrs, &c. a true and just acct of all and evy sum and sums of money that shall be by him recd pd laid out and disbursed of from for or on acct of the sd lds or the rents, &c. thof or of for or on acct of the sd (obligee) his, &c. And also well truly justly and honestly in evy respect behave himself in the sd office or employment of receiver of Y |