BOND. An obligation in writing and under seal. 2 Serg. & R. Penn. 502; 11 Ala. 19; 1 Harp. So. C. 4:34 ; 1 Blackf. Ind. 241 ; 6 Vt. 40 ; 1 Baldw. C. C. 129.
2. It may be single,—simplex obligatio,—as where the obligor obliges himself, his heirs, executors, and administrators, to pay a cer tain sum of money to another at a day named, or it may be conditional (which is the kind more generally used), that if the obligor does some particular act, the obligation shall be void, or else shall remain in full force, as payment of rent, performance of covenants in a deed, or repayment of a principal sum of money borrowed of the obligee with inte rest, which principal sum is usually one-half of the penal sum specified in the bond.
3. There must be prover parties; and no person can take the benefit of a bond except the parties named therein, Hob. 9; 14 Barb. N. Y. 59; except, perhaps, in some cases of bonds given for the performance of their duties by certain classes of public officers. 4 Wend. N. Y. 414 ; 8 Md. 287; 4 Ohio. N. s. 418; 7 Cal. 551; 1 Grant, Cas. Penn. 359 ; 3 Ind. 431. A man cannot be bound to him self even in connection with others. 5 Cow. N. Y. 688. See 3 Jones, Eq. No. C. 311. If the bond run to several persons jointly, all must join in suit for a breach, though it be conditioned for the performance of different things for the benefit of each. 2 N. Y. 388.
4. The instrument must be in writing and sealed, 1 Baldw. C. C. 129 ; 6 Vt. 40 ; but a sealing sufficient where the bond is made is held sufficient though it might be an insuffi cient sealing if it had been made where it is sued on. 2 Caines, N. Y. 362. The signa ture and seal may be in any part of the in strument. 7 Wend. N. Y. 345.
5. It must be delivered by the party whose bond it is, to the other. 13 Md. 1 ; 5 Gray, Mass. 440; 11 Ga. 286. See 37 N. H. 306 ; Bacon, Abr. Obligations, C. But the de livery and acceptance may be by attorney. 10 Ind. 1. The date is not considered of the substance of a deed; and therefore a bond which either has no date or an impossible one is still good, provided the real day of its being dated or given, that is, delivered, can be proved. 2 Blackstone, Comm. 304 ; Comyns, Dig. Fait, B 3 ; 3 Call. Va. 309.
6. The condition is a vital part of a con ditional bond, and generally limits and deter mines the amount to be paid in case of a breach, 7 Cow. N. Y. 224 ; but interest and
costs may be added. 12 Johns. N. Y. 350 ; 2 Johns. Cas. N. Y. 340; 1 E. D. Smith, N. Y. 250; 1 Hempst. C. C. 271. The recovery against a surety in a bond for the payment of money is not limited to the penalty, but may exceed it so far as necessary to include inte rest from the time of the breach. So far as interest is payable by the terms of the con tract, and until default made, it is limited by the penalty ; but after breach it is reco verable, not on the ground of contract, but as damages, which the law gives for its violation. 18 N. Y. 35. And see CONDITION.
7. On the forfeiture of the bond, or its be coming single, the whole penalty was formerly recoverable at law ; but here the courts of equity interfered, and would not permit a man to take more than in conscience he ought, viz.: his principal, interest, and ex penses in case the forfeiture accrued by non payment of money borrowed, the damages sustained upon non-performance of covenants, and the like. And the like practice having gained some footing in the courts of law, the statute 4 & 5 Anne, c. 16, at length enacted, in the same spirit of equity, that, in case of a bond conditioned for the payment of money, the payment or tender of the principal sum due with interest and costs, even though the bond were forfeited and a suit commenced thereon, should be a full satisfaction and dis charge. 2 Blackstone, Comm. 340.
If in a bond the obligor binds himself, without adding his heirs, executors, and ad ministrators, the executors and administra tors are bound, but not the heir, Shep pard, Touchst. 369; for the law will not imply.tbe obligation upon the heir. Coke, Litt. 209 a.
S. If a bond lie dormant for twenty years, it cannot afterwards be recovered ; for the law raises a presumption of its having been and the defendant may plead solvit ad diem to an action upon it. 1 Burr. 434; 4 id. 1963. And in some cases, under particu lar circumstances, even a less time may found a presumption. 1 Term, 271; Cowp.109. The statute as to the presumption of payment after twenty years is in the nature of a sta tute of limitations. It is available as a bar to an action to recover on the instrument, but not where the party asks affirmative re lief based upon the fact of payment. 12 N. Y. 409 ; 14 id. 477.