BONDS. Indemnity (sheriff's levy). CONDITION. the said defendant, and subject to the said execution. [AND WHEREAS the said sheriff has (if the case was so) been served with a rule to return the said writ of testatum fieri facias, and an application has been made to the Court of King's Bench, on the part of the said sheriff, to discharge the said rule, and a rule to shew cause was thereupon granted, and upon shewing cause on behalf of the said plaintiff, a rule was made for discharging the said rule, to shew cause upon the plaintiff's indemnifying the said sheriff.] AND WHEREAS the said sheriff [in pursuance of the said rule, and] at the request of the said plaintiff, and upon being indemnified as above and hereinafter is mentioned, has agreed to proceed to the sale of the said goods and effects, and thereupon to return the said levy in pursuance of the said writ. Now THEREFORE the condition of the above written obligation is such, that if the said (obligors being plaintiff and sureties), or any or either of them, their, or any or either of their heirs, executors or administrators, shall and do well and truly save harmless and keep indemnified the said sheriff, his executors and administrators, and also the under sheriff, and the said (officer), and all other the officers and assistants of the said sheriff in the said execution, of, from and against all costs, charges, damages and expenses, which he or they, or any or either of them, their, or any or either of their heirs, executors or administrators, shall or may be put unto, bear, pay or sustain, or be liable to bear, pay or sustain, for or by reason of the entering into the said house and premises of the said (defendant), and taking possession of the said goods and effects as aforesaid, or for or by reason of the continuing in the possession thereof, or the selling and disposing thereof, or making a return to the said writ of testatum fieri facias, that the said sheriff has levied by virtue thereof the sum for which the said goods and effects are and shall be sold, after deducting all the usual and reasonable charges attending the said levy, and keeping possession, and of the sale; and also of, from and against all costs, charges, damages and expenses which the said sheriff or under sheriff, or his officers or assistants, or any or either of them, shall be put unto, or shall bear, pay or sustain for or by reason of any action or actions, suit or suits, which shall or may be at any time hereafter brought or prosecuted against the said sheriff, under sheriff or officers, for or by reason of the taking or continuing the possession of the said goods or effects, or any part thereof, or the selling or disposing thereof, or of any part thereof [or for or by reason of any motion or motions made or to be made to the said Court of King's Bench], or in any other manner howsoever relating thereto. THEN, &c. No. CCXIII. *A Bond to Indemnify a Sheriff on paying over to a Creditor money levied under an Execution. BONDS. Indemnity (sheriff's levy money). during &c. KNOW ALL MEN, &c. (1). WHEREAS a writ of fieri facias was issued, Recital of writ, out of his Majesty's Court of King's Bench at Westminster, and there returnable on the, &c. directed to the sheriff of the shrievalty of the said (late sheriffs) wherein (plaintiff) is the plaintiff, and (defendant) is the defendant, commanding the said sheriff to cause to be made of the goods and chattels of the said (defendant) in his bailiwick the sum of £ which the said (plaintiff) recovered against him in the said court for a debt, and also L awarded to the said (plaintiff) for his damages, as well by the detaining the said debt, as for costs and charges by him about his said suit, which said writ of fieri facias is marked on the back thereof to levy L besides sheriffs' poundage, officers fees, and charges of levy; and by virtue of such writ the said late sheriff, by (officer) his officer, seized and took possession of divers goods and chattels of the said (defendant), and kept possession there→ of until the said (debtor) paid to the said late sheriff the said sum of L and the poundage thereof, together with the costs and charges of the said levy, and the said sum of £ now remains in the hands of the said late sheriff. AND WHEREAS the said late sheriff, on the said sum of £ being paid to him, received a notice to (defendant's attorney) the attorney of the said defendant in the said action, purporting that the said Court of King's Bench would be moved on the day of Michaelmas term then next, or so soon after as counsel could be heard, that the said sum of L so levied by the said late sheriff as aforesaid might be restored to the said defendant, and that the said writ of fieri facias, and all proceedings thereon, might be set aside, and requiring the (1) See ante, p. 73, and notes there. Obligation. BONDS. Indemnity (sheriff's levy money). said late sheriff in the mean time to retain the said money in his hands. AND WHEREAS the said (plaintiff) having insisted that the said sheriff ought and is bound to pay over to him the said sum so levied as aforesaid, after deducting all expenses, and reasonable and usual charges, he the said late sheriff hath consented and agreed so to do, upon the said (defendant), together with the said (his surety), undertaking and agreeing to return back and restore to him the said sum, in case the said Court of King's Bench shall make any rule or order for that purpose, and to indemnify him in the manner hereinafter mentioned; and the said late sheriff, by the said (officer) his officer, hath accordingly paid over the said sum of L to him CONDITION. the said (plaintiff). NOW THE CONDITION of the above obligation is such, that if the above bounden (obligors, being the plaintiff and his sureties) their heirs, executors and administrators, or any or either of them, do and shall well and truly pay back, return or restore the said sum of L to the said late sheriff, or to the said (defendant), or otherwise, as the said Court of King's Bench shall or may order or direct, and agreeably to and in compliance with any rule or order of the said court to be made for that purpose, and also do and shall well and truly pay to, and save harmless and keep indemnified the said late sheriff and his under sheriff, and the said (officer) his officer, and all and every other the officers of the said late sheriff employed in the execution of the said writ of fieri facias, them, and each and every of them, and every of their executors and administrators, of, from and against all payments, sum and sums of money, losses, costs, charges, damages and expenses which he, they or any or either of them shall or may bear, sustain or be put unto, for or on account or by reason of his or their having paid over the said sum of L to the said (plaintiff) contrary to the said notice from the said (defendant), or for or by reason or means of any action or actions, suit or suits, motion or motions, which shall or may be had, brought, commenced, sued, prosecuted or made against the said late sheriff, or his under sheriff, or the said (officer) his officer, or any other of the officers or agents of the said late sheriff employed in the execution of the said writ, by the said (defendant), his executors or administrators in regard thereto. THEN, &c. No. CCXIV. A Bond of Indemnity to a Surety bound for the Obligor (1), for payment of a sum of money (2). BONDS. Indemnity (surety). KNOW ALL MEN, &c. (3). WHEREAS the above named (surety), Recitals. payment unto the said A. B. of the sum of £ (1) Where a counter-bond is given to a surety who eventually pays the Surety's remedy debt of his principal, he has an action at law against his principal for the against principal. amount, and in case of bankruptcy may prove it under the commission, ex parte Cockshott, 3 Brow. Ch. Ca. 502. and may even compel the obligee to prove, who will be a trustee for him of the dividend. Ex parte Rushworth, 10 Ves. 409. But the security for which the debt was given becomes void, and the surety without such bond is merely a simple contract creditor of the principal; the rule in equity that a surety is to have the benefit of all securities which the creditor has against the principal, being limited to such securities as continue to exist. Copis v. Middleton, 1 Turn. 221; hence the expediency of a surety taking a counter security. (2) A surety may always compel the principal to relieve him of his responsibility by payment of the debt, where it is a bond for payment of money, but where the bond is given to protect against the consequences of future contingencies, as in the case of a bond of indemnity for fidelity, or to account, the surety will not be entitled to exonerate himself, or to compel the principal to make any provision for preventing the surety being thereafter damnified, unless by means of a counter-bond, or other security for that purpose given at the time; and see Antrobus v. Davidson, 3 Meriv. 569; also ante, p. 73, notes. (3) See the form of this obligation, ante, p. 77; as to which it may be observed, that a surety is in no case liable beyond the penalty of the bond, however large the debt and costs. Antrobus v. Davidson, ub. sup. BONDS. Indemnity (surety). day of less the said (surety) against any loss or detriment which he may sustain by reason of his having so become such surety as aforesaid, hath agreed to enter into the above written obligation with such condition for making void the same as hereinafter is expressed. Now CONDITION. THE CONDITION of the above written obligation is such, that if the above bounden (obligor), his heirs, executors, or administrators, do and shall well and truly pay, or cause to be paid unto the said A. B. his executors, administrators or assigns, the said sum of L with interest for the same after the rate of £5 per cent. per annum, on the next ensuing the date of the said recited obligation, according to the true intent and meaning of the condition thereunder written, and in full discharge and satisfaction of the said bond or obligation; and if the said (obligor), his heirs, executors or administrators, shall and do from time to time, and at all times hereafter, save, protect, keep harmless and indemnified him the said (surety), his heirs, executors and administrators, and his, their and every of their lands and tenements, and goods and chattels, of, from and against the said sum of £ and interest, and all other sums of money, costs, charges, damages and expenses whatsoever [which he the said (surety), his heirs, executors or administrators, or any or either of them, shall or may, at any time or times hereafter, bear, sustain or be put unto, or become liable to pay], by reason or on account of the said in part written bond or obligation, or any matter or thing in any wise relating thereto. THEN, &c. or else, &c. |