time, to the principal debtor (c); for there would otherwise be a prolongation of the surety's liability, beyond the period contemplated by the parties at the time that the guarantee was originally given.

The law besides implies, in favour of the surety, a promise on the part of the principal debtor to reimburse him (as well principal as interest (d)), for any payment which he is obliged to make upon his guarantee (e). And where two or more persons have become sureties in respect of the same debt or demand (whether by the same instrument of guarantee or by different ones), any one of them, who pays more than his rateable proportion, is entitled to contribution for such excess from the other surety or sureties (ƒ), —a right founded, it is said, not on any implied contract, but on a natural principle of justice; and one which has been recently recognized by the statute 19 & 20 Vict. c. 97, s. 5.

To these rules, reasonably established by the law, for the protection of him who guarantees another's debt, we may add, that when that debt becomes due, he may apply to a court of equity to compel his principal to pay it off, and thus to relieve him from further liability (g); and that where the surety is himself obliged to make the payment, he is entitled to an assignment of every security which the creditor held in respect of the debt, and to stand in the place of the creditor in respect of such security, whether as against the principal debtor, or any co-surety (h).

The contracts on which our attention has been hitherto

(c) But merely forbearing to sue the principal debtor will not discharge the surety; see Samuell v. Howarth, 3 Mer. 272; Strong v. Foster, 17 C. B. 201.

(d) Petre v. Duncombe, 2 L. M. & P. 107.

(e) Vide sup. p. 52; Davies v. Humphries, 6 Mee. & W. 167; Batard v. Hawes, 2 Ell. & Bl. 287. (f) It has been held, however,

as an exception to this general rule, that no co-surety, at whose request another may have originally become liable, is entitled to such contribution; Turner v. Davies, 2 Esp. 478. (g) Antrobus v. Davidson, 3 Mer, 579.

(h) 19 & 20 Vict. c. 97, s. 5; see Copis v. Middleton, 1 Turn. & Russ. 224; Wodehouse v. Farebrother, 5 Ell. & Bl. 277.

bestowed, are characterized rather by their subject-matter, than their form; but those which we shall hereafter consider are of forms more fixed and determinate, and are also distinguished from the former as being, in their very nature and definition, written instruments. Among these, the first notice is due to

VI. Bonds (or writings obligatory),—which are a kind of contract in very extensive use, being adopted in a great variety of cases where the object is to obtain security for the payment of money, or the performance of any other act; a bond being a deed, or instrument under seal, whereby the party from whom the security is intended to be taken. obliges himself to pay a certain sum of money to another, at a day specified. [If this be all, the bond is called a single one (simplex obligatio), but there is generally,] indeed, in practice invariably, [a condition added, that if the obligor does some particular act, the obligation shall be void, or else shall remain in full force,] and in the case of a bond with condition the sum mentioned in the obligatory part of the bond is in the nature of a penal sum (or penalty), and is usually fixed at some high amount much more than sufficient to cover any possible damage arising from a breach of the condition by non-performance of the act therein mentioned. The nature of this act depends upon the particular object intended to be secured. Thus it may be the repayment of a principal sum borrowed of the obligee, with interest, the periodical payment to him of an annuity, or the faithful performance, by a third person, of the duties of an office held under the obligee. [In case the condition is not performed, the bond becomes forfeited or absolute at law, and charges the obligor, while living,] and, after his death, his executor or administrator,-and (subject to distinctions explained in a former part of this work) is also capable of being enforced against his heir or devisee (i).

(i) Vide sup. vol. 1. p. 425.

[If the condition of a bond be impossible at the time of making it, or be uncertain, or insensible, the condition alone is void, and the bond shall stand single and unconditional; for it is the folly of the obligor to enter into such an obligation, from which he can never be released (j).] On the other hand, if the condition be to do a thing that is either illegal at common law, or contrary to the provision of an act of parliament, the whole bond is void (k); for the whole is an unlawful contract, and the obligee shall take no advantage of such a transaction. And the effect will be the same even though the condition be ex facie legal, if the bond was in reality given upon an illegal consideration, or to effect an unlawful object which the condition does not disclose, or attempts by its language to conceal; for though, by the general rule of law, the parties to any deed are in general estopped from contradicting it, or assigning to it any intent beyond that which appears on the instrument itself (1), yet an exception is permitted in this case, upon the obvious ground of public policy (m). But if a bond have several conditions, the one legal and the other illegal, and of a nature entirely distinct, and not dependent upon each other, the general rule then is, that the latter condition only shall be avoided, and that the bond shall continue nevertheless in force, and be subject to the remaining or valid condition (n). Such appears to be the state of the law, with respect to conditions impossible or illegal at the time when the bond is executed. But if the condition be then possible and legal, and afterwards

(j) Campbell v. French, in error, 6 T. R. 211; vide Duvergier v. Fellows, 5 Bing. 256.

(k) 1 Saund. by Pat. & Will. 66 a, n. (1). Blackstone makes a distinction, not recognized by the modern authorities, between the case where the condition is "malum in se," and where it is "contrary to some rule of law that is merely positive," considering the bond as void in the first

case, but in the second, single. Bl. Com. vol. 2, p. 340; et vide Co. Litt. 206 b.

(1) Vide sup. vol. 1. pp. 481, 501. (m) Collins v. Blantern, 2 Wils. 341; Paxton v. Popham, 2 East, 421.

(n) 1 Saund. by Pat. & Will. 66 a, n. (1), n. (d); Mallam v. May, 11 Mee. & W. 669; Green v. Price, 13 Mee. & W. 695.

become impossible by the act of God, or that of the obligee himself, or become by any means illegal, the penalty of the obligation is in any of these cases saved, and the obligor discharged from all liability; for no prudence or foresight on his part could guard against such a contingency (o).

[On the forfeiture of the bond, the whole penalty was formerly recoverable at law; but here the courts of equity interposed, and would not permit a man to take more than in conscience he ought, viz., his principal, interest, and expenses,] when the breach of the condition consisted in a mere non-payment of money,- —or the amount of damage actually sustained, where the breach was of a different kind. And in the particular case, where a bond was conditioned merely for payment of a certain sum of money on a certain day, the like practice was in course of time introduced, by the same spirit of equity, even into the courts of law (p). In confirmation of which, it was at length enacted, by 4 & 5 Anne, c. 16, with respect to bonds of this description, that the bringing into court of the principal sum due, with interest and costs, even though the bond be forfeited and a suit commenced thereon, shall be a full satisfaction and discharge in a court of law; and further, that such a bond shall not be forfeited by mere non-payment at the precise day mentioned in the condition; but that if payment be made before or even after the day, it shall be pleaded as a good bar to any action afterwards brought on the instrument (9). An improvement founded on the same general principle was also, by a prior statute, introduced

(0) Co. Litt. 206 a; Bro. Ab. tit. Condition, pl. 127; Eaton v. Butter, W. Jon. 180; 2 Bl. Com. 341. In Co. Litt. 206 a, the distinction is also shown between conditions of bonds, and conditions annexed to an estate; as to which last, it is laid down, that if they become impossible the estate is absolute. Et vide as to such con

ditions, Co. Litt 209 a; Shep. Touch. 157; sup. vol. 1. p. 302.

(p) Stern v. Vanburgh, 2 Keb. 553, 555; Anon., 6 Mod. 11; Burridge v. Fortescue, ibid. 60; Ireland's case, ibid. 101; 2 Bl. Com. 341.

(q) As to the construction of this statute, vide Robinson v. Brown, C. B. 54.

with respect to bonds conditioned for the performance of other acts not consisting of the simple non-payment of money on a day certain; for by 8 & 9 Will. III. c. 11, when an action at law is brought upon an instrument of this description, a jury shall always inquire of the damages which the plaintiff has actually sustained by breach of the condition; and though (for his better security in the event of any future breach), he may still enter up judgment for the penalty, as at common law, yet he cannot take out execution to a larger amount than the damages which the jury shall assess (r).

This subject being nearly related to the general one, of contracts secured by penalties, we shall take occasion, though at the expense of some digression, to advert to some of the learning connected with that topic.

In contracts not framed as bonds, (for to bonds we do not now refer,) it often happens, that, in connection with a covenant or promise that one of the parties shall perform a certain act, the same instrument provides that he shall pay to the other a sum of large amount, in the event of its non-performance; and the question frequently arises, whether this sum should be considered as a penalty, or as the liquidated amount of damage which, in such an event, the injured party shall be taken to have really sustained. Where it is viewed in the former light, the effect is, that the party, who complains of the breach of the agreement, has the option of bringing his action, either for damages only, without reference to the penalty, or for the penalty; but whichever course he takes, the effect is much the same; for by the statute of William the third, just

(r) On this subject, vide Saund. by Pat. & Will. 58 b; 2 ibid. 187 a; Smith v. Bond, 10 Bing. 125; Ethersey v. Jackson, 8 T. R. 255; Homfray v. Rigby, 5 Mau. & Sel. 60; James v. Thomas, 5 Barn. & Adol. 40; Archbishop of Canterbury v. Robertson, 3 Tyr. 419; Kepp v. Wig

gett, 4 C. B. 678; Lee v. Lester, 7 C. B. 1008; Bishop of London v. M'Neil, 9 Exch. 490. By 15 & 16 Vict. c. 76, s. 96, the provisions contained in 8 & 9 Will. 3, c. 11, as to actions on bonds and contracts secured by penalties, are expressly recognized and preserved.