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agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person by him lawfully authorized. The writing must of course contain all the terms of the contract (d),-excepting that, by the Mercantile Law Amendment Act, 1856, s. 3, no such promise is now to be invalid to support an action, by reason only that the consideration for the promise does not appear, either in the writing or by necessary inference from the written document. But, of course, whenever such contract is (as it usually is) a simple contract, it must have a consideration in fact (e). And here it will be useful to observe, that the provisions of the Statute of Frauds as to guarantees having been readily evaded, and found accordingly to afford an insufficient protection to persons in the position of guarantors (f), it was afterwards further enacted by the Statute of Frauds Amendment Act, 1828, ("Lord Tenterden's Act,") s. 6, that representations by a third party regarding the character or trade-ability of a person, to whom credit was to be given on the faith thereof, should not render such third party answerable for debts contracted on the faith of such representations, unless the representations were in writing and were signed by the party making them.

Nature of contract.--The contract of guarantee or of suretyship is not in the strict sense a contract uberrimæ fidei; but any material misrepresentation to the surety or guarantor will entitle him to avoid his liability (g). By s. 18 of the Partnership Act, 1890, in the case of a guarantee to or for a firm, no such guarantee will (except where otherwise expressed or necessarily implied) be binding

(d) See ante, p. 67.

(e) Crears v. Hunter (1887), 19 Q. B. D. 341.

(f) Pasley v. Freeman (1789), 3 T. R. 51.

(g) Lee v. Jones (1864), 17 C. B. (N.S.) 503; Seaton v. Heath, [1899] Q. B. 782; Seaton v. Burnand, [1900] A. C. 135.

in respect of anything done or omitted to be done, after a change in the firm shall have taken place.

Discharge of surety.-A guarantor or surety will be discharged: (1) if the principal debtor be released by the creditor, or if the debt or demand be by any means extinguished as between the two principals, for the surety's obligation, being collateral only, cannot survive the liability of the principal debtor himself (h); or (2) if the original risk should be substantially altered by the principals to the transaction without the surety's consent (i); or (3) if the creditor, without the surety's permission, consents in a binding manner to give time to the debtor, without expressly reserving his rights against the surety (k); or (4) by any negligence of the creditor which prejudices the surety (1).

Position of the surety. The law moreover implies, in favour of the surety, a promise on the part of the principal debtor to reimburse and indemnify him-as well principal as interest, for any payment which he is obliged to make under the guarantee; 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, in general, (that is to say, subject to any express agreement excluding or qualifying the right) to obtain contribution for such excess from the other sureties (m). This right of contribution is available for the surety even before payment by him, if a judgment for the amount has been obtained against

(h) Commercial Bank of Tasmania v. Jones, [1893] A. C. 313; Re E. W. A., [1901] 2 K. B. 642. (i) Holme v. Brunskill (1872), 3 Q. B. D. 495.

(k) Swire V. Redman (1876), 1 Q. B. D. 542; and see Green

wood v. Francis, [1899] 1 Q. B. 312.

(1) Taylor v. Bank of N. S. Wales (1886), L. R. 11 App. Ca., p. 603

(m) Mercantile Law Amend ment Act, 1856, s. 5; Ellesmere Brewery v. Cooper, [1896] 1 Q. B.

him (n). Again, when the principal debt becomes due, the surety may apply to the court to compel the principal debtor to pay it off, and so to relieve him from any continuing liability (o). Finally, where the surety is himself obliged to make the payment, he is entitled, under the principle of subrogation, to stand in the shoes of the creditor against the principal debtor, and to have an assignment of every security which the creditor holds in respect of the debt, and to stand in the place of the creditor in respect of every such security, whether as against the principal debtor, or as against any co-surety (p).

(n) Wolmershausen v. Gullick, [1893] 2 Ch. 514.

(0) Antrobus v. Davidson (1817), 3 Mer. 579.

(p) Mercantile Law Amend

ment Act, 1856, s. 5; Re Parker, [1894] 3 Ch. 400; Duncan Fox & Co. v. N. & S. Wales Bank (1880), L. R. 6 App. Ca. 11; In re Wrerham Rail. Co., [1899] 1 Ch. 440.

CHAPTER V.-SECTION VIII.

OF BONDS.

General nature.-Bonds are a kind of contract in very extensive use, being adopted in a great variety of cases, where the object is to secure either the payment of money, or else the performance of (or abstention from) some act. A bond is an instrument under seal, whereby the obligor obliges himself to the obligee to pay a certain sum of money at a day specified. The peculiar species of bonds called "Lloyd's Bonds" are in reality only bonds of this character, being instruments under the seal of a company, usually a railway company, admitting the company's indebtedness to the obligee in the sum specified in the bond, and containing a promise by the company to the obligee to pay him such amount with interest on a future day.

Bonds given by way of securing the payment of money are called single bonds; but where there is a condition added, that if the obligor does (or abstains from doing) some particular act, the obligation shall be void, or else shall remain in full force, then the bond is a bond with a condition, the sum mentioned in the obligatory part of the bond being a penal sum (or penalty), sufficient to cover any possible damage arising from a breach of the condition. The nature of the condition will in each case depend upon the particular object intended to be secured: [thus, it may be the repayment (with interest) of the principal sum borrowed of the obligee; or the periodical payment to him of an annuity; or the faithful performance, by a third person, of the duties of an office. be, in case it is not performed, the bond becomes forfeited at law, and the obligation absolute; and such obligation charges the obligor, while living, and, after his death, his

Whatever the condition

[executor, or administrator, and also his heir or devisee, to the extent of the assets descending upon him.

If the condition of a bond be impossible at the time of making it, or be uncertain, 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.] On the other hand, if the condition be to do a thing that is either illegal at common law, or contrary to the provisions of an Act of Parliament, the whole bond is void (a); for it 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 if it be to effect an unlawful object which the condition does not disclose. For though, by the general rule of law, the parties to a deed are in general estopped from assigning to it any intent beyond that which appears on the instrument itself, yet an exception is permitted in this case, upon the obvious ground of public policy (b). But if the bond have several conditions, some of which are legal and others illegal, and the several conditions are of a nature entirely distinct from, and not dependent upon each other, the general rule is, that the illegal conditions only shall be void, and the bond shall continue in force subject only to the legal conditions (c). Where the condition of a bond was possible at the date of the making of the bond, and afterwards becomes impossible either through the act of God, or by reason of the conduct of the obligee, or if it becomes by any means illegal, in either of these cases, the bond is avoided, and the obligor is discharged from all liability ; because no prudence or foresight on his part could have guarded against such a contingency (d).

(a) Co. Litt. 206 b.

(b) Collins v. Blantern (1767), 2 Wils. 341.

(c) Green v. Price (1845), 13 M. & W. 695.

S.C.-II.

L

(d) Co. Litt. 206 a, 209 a; Bro. Ab. tit. Condition, pl. 127; 2 Bl. Com. 341; Shep. Touch. 157.

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