BOND, in Law, is a deed, or written obligation, person binds himself, his heirs, executors, and administrators, to pay a certain sum of money, or perform some other act, in favour of another, against a day appointed. A bond in this simple form is call ed a sinale one (simpler obligatio); but, in general, a condition is added, that, if the Obligor does some particular act, the obligation shall be void, or, other wise, it shall remain in full force. If the condition is not performed, the bond becomes forfeited, or ab solute at law, and charges the obligor while living ; and after his death, the obligation descends upon his heir, who (on defect of personal assets) is bound to discharge it, provided he has real assets by de. scent.
Executors and administrators are bound, although the words, " heirs, executors, and administrators," Mould be omitted in the bond ; but heirs arc not bound, unless they be expressly named. And if a bond be taken to a man, his heirs and successors, the executors and administrators shall have the advantage of it, and not the heir or successor, the bond being in the nature of a chattel.
The condition of a bond must be such as is possible, and laTful ; and if the matter or thing to be done be impossible, or contrary to some rule of law that is mere ly positive, or the condition itself be repugnant, in. sensible, or uncertain, it becomes void, and the obli gation stands single and unconditional. If the con dition be possible at the time of entering into the hand, but afterwards becomes impossible, by the act of God, the act of the law, or the act of the obligee himself, it is void, and the penalty of the obligation is saved : as if a man be bound to appear next term, and dies before the period arrives. If the condition be to perform any criminal act, or to do any thing that is malum in se, as to kill a person, &c. the obligation itself is void. So also are bonds made by duress, by infants, by feme coverts, &c. If a bond be made by a fence covert, sbe may plead her coverture, and conclude non est factum, &c. her bond being void. But if an infant seal a bond, and be sued thereon, he is not to plead Non est factum, but must avoid the deed by special pleading ; for his bond is only voidable, and not in itself void.
If no time be limited in a bond for payment of the money, it is held to be due presently, and payable on demand. The judges, however, have sometimes appointed a convenient time for payment, having re gard to the distance of place, and the time necessary for performance. Where no place is specified for performing a condition, the obligor must find out the person of the obligee, if in England, and tender the money, otherwise the bond is forfeited : But when a place is appointed, he is not obliged to seek any further. And where no place is specified for payment of money due on a bond, if the obligor, at or after the day of payment, tenders the money, and the obligee refuses it, the obligor shall be excused ; but if he be afterwards sued, ne must plead, that be is still ready to pay it, and tender the money in court. If a bond be of 20 years standing, and no demand be proved thereon, nor any good cause of so long for bearance shewn to the court, upon pleading Sokit ad diem, it shall be intended paid.
When several persons are bound severally in a bond, the obligee may sue all of the obligors, either together or apart ; and, in the latter case, he may have several judgments and executions : But if he obtain full satisfaction from one, that shall discharge the rest. When persons are bound jointly, and not
severally, all the obligors must be sued ; and if only one be prosecuted, he is not obliged to answer, unless the rest be sued likewise.
When a bond was forfeited, or become single, the whole penalty was formerly recoverable at law : But, in consequence of the interposition of the courts of equity, a man was not permitted to take more than in conscience he ought ; that is, his principal, inte rest, and expenses, if the forfeiture accrued by non payment of money borrowed ; the damages sustained, upon non-performance of covenants, &c. And it is enacted by the statute and 5 Ann. c. 16. that, in the case of a bond conditioned for the payment of money, the payment or tender of the principal sum due, with interest and costs, shall be a full satisfac tion and discharge, even although the bond be for feited, and a suit commenced. See Blackst. Com ment. h. ii. c. 20. Jacob's Late Dict.• Bonds, according to the law of Scotland, are ei ther heritable or moveable. The taking of interest being prohibited by the canon law, those persons who wished to make profit of their money, by put ing it out to interest, were, before the Reformation, obliged to purchase rights on land constituted by infeftment ; in consequence of which, the lands were burthened with a certain annual rent to the receiver, redeemable by th^ proprietor, on repayment of the purchase money. These being bargains affecting land, the rights were understood to be heritable. And even for some time after the Reformation, the form of these rights was preserved, with little varia tion. But afterwards these rights were changed into proper bonds, by which the debtor becomes person ally bound to repay the principal sum, and interest, and, as a further security, obliges himself to infeft the creditor in the annual rent. All bonds, there fore, bearing a clause of infeftment are heritable.
Bonds merely personal, on the other hand, have • always been moveable before the term of payment ; but, afterwards, they were anciently considered as feoda pecunice, and consequently heritable. But by the statute 1661, c. 32. all sums contained in con tracts and obligations are made moveable in regard to succession ; although they still continue heritable with respect to the fisk, and to the rights of husband and wife. The statute excepts bonds bearing an obligation to infeft, and bonds payable to heirs and assignees, secluding executors ; which continue heri table in all respects, A bond taken payable to heirs, without any men tion of executors, descends, not to the heir in heri tage, but to the executor. But a bond taken to heirs male, or to a series of heirs, is heritable. Bonds, originally moveable, may become heritable, either by destination, or in consequence of a supervening heri table security. But heritable rights do not become moveable by supervening moveable securities.
All bonds, whether merely personal, or even heri table, before seisin, may be affected by creditors, ei ther by the diligence of adjudication, which is pecu liar to heritage, or by arrestment, which is peculiar to moveables. Bonds secluding executors, although they descend to the creditor's heir, are payable by the debtor's executors, without relief against the heir. See Erskine's Prin. of the Law of Scot. b. t. ii. § 3. et seq. (z)