of a principal sum of money, borrowed of the obligee, with interest; which principal sum is usually one half of the penal sum specified in the bond. 2. There are only three things essentially necessary to a bond; namely, writing, sealing, and delivery. For as to signing, that circumstance was clearly not Ante, c. 2. § 68. necessary in former times; and the statute of frauds does not extend to bonds, for no estate or interest in lands is immediately created by them. 1 Salk. 462. Cro. Eliz. 561. 729.886. 3. No particular form of words is required to constitute a bond; any words which show the intention of the party to bind himself, will be sufficient; for such obligation is only in the nature of a contract, or a security for the performance of a contract, which is construed according to the intention of the parties. If there be an omission of the usual conclusion of a condition; namely, that then the obligation shall be 1 Saund. R. 66. void; yet the condition is good; and it is a good defeasance of the bond. For insensible and repugnant words shall be rejected. .1. Butler v. 1 Saund. 66. Pullerton v. 1 Salk. 172. For if the 4. It has also been held, that any words by which the intention of the parties can be discovered, are sufficient to make a condition of a bond. words, though improper, should be construed void, and not a condition, then the obligation would be single, and of force against the obligor, though he had performed the condition of it, according to the intention of the parties. And the condition, being for the benefit of the obligor, shall be construed favourably. 5. Mr. Serjeant Williams, in his note on this case, says, " With respect to impossible or void conditions, the following distinction has been taken; that where the condition is underwritten or endorsed, that is only void, and the obligation is single. But where the condition is part of the lien itself, and incorporated therewith (as in a recognisance by bail), if the condition be impossible, the obligation is void." 6. Where the condition of a bond is entire, and the Idem. whole is against law, it is void. But where the condition consists of several different parts, some of which are lawful, and others not, it is good for so much as is lawful, and void for the rest. If a bond is given with a condition to do a thing against an act of parliament, and also to pay a just debt, the whole bond is void, because the letter of the statute makes it void, and it is a strict law. 7. This security is called a specialty, the debt being Its effect. therein particularly specified in writing; and the party's seal, acknowledging the debt or duty, and confirming the contract, renders it a security of a higher nature than those entered into without the solemnity of a seal. Hence bond debts are preferred to those due on simple contract. obligor. 8. When the condition of a bond is not performed, As to the it becomes forfeited and absolute in law; and is a charge on the personal estate and chattels real of the obligor, but not on his freehold lands; therefore any settlement or disposition which he makes in his lifetime of his freehold estates, whether voluntary or not, will be good against bond creditors. For a bond Treat. of Eq. being no lien whatever upon lands, in the hands of $14. the obligor, much less can it be so, when those lands are disposed of to a stranger. 9. A purchaser for a valuable consideration is not affected by notice of a bond debt; for he is to look no further than his title; and the bond debt is no part of the title, till it is placed on the land by a judgment. B. 1. c. 4. Gilb. Lex Treat. of Eq. Præt. 293. B. 1. c. 4. § 12. 10. If the obligor binds himself and his heirs in a As to his heir. bond, it will then be a lien on all the freehold estates whereof he dies seised, and will bind his heirs; who, Tit. 1. in default of personal assets, will be bound to discharge it out of the real assets of the obligor. So that a bond is a collateral, though not a direct charge on lands. Tit. 17. As to a devisee. Tit. 38. c. 1. Tit. 1. Kynaston v. Clarke, T. 17. § 31. medy may exceed the penalty. 11. It has been stated that reversions, after estates for years, are immediate assets, and reversions after estates for life are quasi assets; in both which cases they are liable to the payment of bond debts: that reversions expectant on estates tail are assets when they fall into possession; in which case they are liable to the bond debts of the person who was the original donee of the reversion, and to whom the person claiming such reversion must make himself heir; but not to the bond debts of any intermediate heirs, who were entitled to such reversion. 12. It has been also stated, that by the statute 3 William and Mary, c. 14. the heir of a person indebted by bond is answerable, though he aliens the estate. And by the same statute, § 2, 3. all devises of lands are declared to be fraudulent and void, as against bond creditors: an estate in reversion is within this act; and a devise of such a reversion by the heir of the obligor is also within this statute; in which case, the lands devised are liable. Where the re- 13. When a bond was forfeited, the penalty became the legal debt; nor was any relief given against it, but by a court of equity; where the obligee is only allowed to recover his principal interest and costs. But now, by the statute 4 Ann. c. 16. § 12. payment of the principal, interest and costs, is good at law. Wilde v. Clarkson, 6 Term R. 303. 3 Bro. Rep. 492.525. Bonds to the 14. Although at law there can in general be no remedy beyond the penalty, because in that the obligee seems to have taken his security; yet as it is on the foundation of doing equal justice to both parties that equity proceeds, it will, on any application for a favour from the obligor, compel him to pay the principal, interest, and costs, though exceeding the penalty. 15. It is enacted by the stat. 33 Hen. VIII. c. 39. § 2. that all obligations and specialties concerning the king and his heirs, or made to his or their use, shall be made to his highness and to his heirs, kings, In a Bunb. 58. 16. It has long been settled, that a bond for per- 7 Rep. 20. b. formance of covenants is within this statute. modern case it was held, that a bond taken to the Rex v. Yale, king, his heirs and successors, was within this statute; the words domino regi hæredibus et successoribus suis being only directory. But where a bond is not originally made to the king's use, but comes to him by assignment, or forfeiture; it is not within the first part of this act. 17. By the 27th section of this law it is enacted, that the king shall not be excluded from demanding his just debts, against any of his subjects, as heir or heirs to any person or persons indebted to the king, or to other persons to his use; albeit the word heir be not comprised in such recognisance, obligation, or specialty. Tit. 14. § 13. 18. It has been stated that recognisance is a bond Recognisance. acknowledged in the Court of K. B., or C. P., or before the mayor of the staple at Westminster, or the recorder of London; and the several circumstances required to render it a lien upon lands are there mentioned. It is in most respects similar to a bond; the difference being chiefly, that a bond is the creation of a new debt, whereas a recognisance is the acknowledgment, upon record, of a former debt. 19. The form of a recognisance is thus-" That A. B. doth acknowledge to owe to our sovereign lord the king, or to C. D., the sum of 100/.," with condition to be void on performance of the thing stipulated. This being either certified to, or taken by the Effect of. Tit. 17. Bothomly v. Tit. 14. assignable. officer of some court, it is witnessed only by that officer, not by the party's seal. So that it is not, in strict propriety, a deed: though the effects of it are greater than those of a common bond; being allowed a priority in point of payment. 20. A recognisance is a lien on all the lands which the cognizor had at the time of its acknowledgment; and also upon all those which he afterwards acquires: so that no alienation by the cognizor can prevent the cognizee from extending the land. In case of the death of the cognizor, his lands may be extended, though in the possession of his heir or devisee: and where an estate in reversion, expectant on an estate tail, falls into possession, it then becomes liable to the recognisances, not only of the original donor, but also of all the intermediate heirs, who were entitled to such reversion: because it is a direct lien on the lands; in which it differs from a bond. 21. Whenever the cognizee appears in court and admits satisfaction, the recognisance is discharged and vacated on the roll. 22. A recognisance not enrolled will be considered as a bond, being sealed and acknowledged; and must be paid as a debt by specialty. 23. There are two other kinds of recognisances of a private sort, which are said to be in the nature of a statute merchant, and statute staple, of which an account has been already given. Bonds and re- 24. It has been stated, that by the rules of the cognisances are common law no right of action is assignable. But in modern times, bonds, recognisances, and judgments obtained in actions of debt, or acknowledged under a warrant of attorney, are constantly assigned; though in compliance with the ancient principle, the form of assignment of a chose in action is in the nature of 2 Comm. 442. a declaration of trust, and an agreement to permit the assignee to use the name of the assignor, in order to recover the thing assigned. Therefore when a |