his mother must be a whore," was held to be a public offence, and punishable by the common law of this state. Ib.

BLOCKADE,

1 The British orders in council of July 1808, raising the blockade of the ports of Spain, extended to the colonies of Spain. Dorr v. The Union Insurance Company. 8 Mass. 494.

Fitz

2 Persisting in an intention to enter a blockaded port after warning, is not attempting to enter. simmons v. Newport Ins. Company. 4 Cranch, 185.

3 The sentence of a foreign court of admiralty condemning a vessel for breach of blackade is conclusive evidence of that fact in an action upon the policy of insurance. Croudson v. Leonard. 4 Cranch, 434. 4 If insurance be "against all risks, blockaded ports and Hispaniola excepted," a vessel, sailing ignorantly for a blockaded port, is covered by the policy. Featon v. Fry. 5 Cranch, 335.

5 A vessel sailing ignorantly to a blockaded port is not liable to capture under the law of nations. Ib. 6 In an action upon a policy on property warranted neutral, "proof of which to be required in the United States only," a sentence of condemnation in a foreign court of admiralty, upon the ground of breach of blockade, is not conlusive evidence of a violation of the warranty. Maryland Ins. Company v. Woods. 6 Cranch, 29.

7 Quere, whether breach of blockade by a vessel not warranted neutral, would discharge the underwriters ? Ibid.

8 If a vessel sail to a port within the policy, with intent to go to a port not within the policy, in case the former should be blockaded, this is not a deviation. Ib.

9 A vessel might lawfully sail for a

port in the West Indies, known to be blockaded, until she was warned off, according to the British orders of April, 1804. Ib.

10 She was not bound to make inquiry elsewhere than of the blockading force. 6 Cranch, 30.

1

2

3

4

BOND.

1. Limitation of Actions, on. II. Of Indemnity, Surety-ship, and other joint Bonds.

III. Penalty.

IV. Consideration.

V. Condition.

VI. Erasures, Interlineations, &c.
VII. Forthcoming Bond.

I. Limitation of Actions, on.

On a bond to pay interest half yearly, and the principal in three years, judgment shall be entered on failure of paying interest. And, if the interest be afterwards paid, it is no cause to stay the judgment, but only the execution. Masjen and Touchet. 2 Black. 706.

Proceedings on a bond for payment of mouey by instalments, and on default to stand in force for the whole sum then due, shall not be stayed on payment of the instalments in arrear. Gowlett v. Hanforth. 2 Black. 958.

Debt on bond conditioned to pay money by three instalments, is in force by making any one default. Coates v. Hewitt. 1 Wils. 80. On debt upon a bond conditioned to pay money, the defendant cannot properly plead payment after the day; but an issue made cannot be objected to after a verdict for the plaintiff. Anon. 1 L. Raym. 408.

5 Where a bond is conditioned for the payment of money on a certain day, payment of the money after the day, is no discharge of the bond. Where the service is a seven years apprenticeship, entitles a man to his freedom. An apprentice bound

for seven years only, is not entitled to his freedom if he trades on his own account within the seven years. Nesson v. Finch. 1 L. Raym. 381. (And see DEED and WITNESS V.) 6 The circumstance of 20 years having elapsed without any demand made, is of itself a presumption that a bond has been satisfied. Oswald v. Leigh. 1 Term Rep. 270. Satisfaction of a bond may be presumed within a less period, if any evidence be given in aid of the presumption; as if an account between the parties has been settled in the intermediate time, without any notice having been taken of such a demand. 1 Term Rep 270.

8

But in either case it is only a ground on which the jury may presume satisfaction, and is in itself no legal bar. 1 Term Rep. 2700. 9 To induce a presumption of payment from the age of the bond, 20 years must have elapsed exclusive of the period of the plaintiff's disability. Dunlop & Co. v. Ball. Cranch, 180.

2

II Of Indemnity, Suretyship, and other joint Bonds.

1 The obligee in an indemnity bond, upon being damnified, has an immediate right to be reimbursed. Challoner v. Walker. 1 Burr. 574. 2 Bond to indemnify a parish against a pauper is forfeited, though the parish chuses to pay a weekly sum for his maintainance in another parish, to avoid the expence of removal. Allen v. Peshall. 2 Blackstone,

1177.

3 Where a bond is given by sureties for the honesty and fidelity of a broad clerk to a brewer, and the obligee afterwards takes a partner without the knowledge of the sureties, they shall not be answerable for the clerk's fidelity to such partnership. A demurrer on the merits is an issuable plea within the meaning of an order for time. Wright v. Russel. 3 Wils. 530.

A bond with a condition that a clerk shall faithfully serve and account for all money, &c. to the obligee and his executors, does not make the obligor liable for money received by the clerk in the service of the executors of the obligee, who continue the business and retain the clerk in the same employment, with the addition of other business, and an increase of salary. Barker v. Parker. 1 Term Rep. 287.

But a bond for the fidelity of a clerk, who was taken into the service of the obligees as a clerk in their shop and counting house, is not discharged by the obligees taking another partner into their house; and the obligees may recover money received by the clerk after such change of partners. Barclay v. Lucas. 1 Term Rep. 291, n. Such a bond is only as a security to the house of the obligees. 1 Term Rep. 287.

Where a bond by A., reciting that B. intended to open a banking aecount with C., D., and E. as his bankers, was conditioned for payment to them of all sums from time to time advanced to B. at the banking house of C., D., and E.: held that on C.'s death such obligation ceased, and did not cover future advances made after another partner was taken in ; and that B., who was indebted to the house at C's death, having afterwards paid off the balance, which was applied at the time to the old debt incurred in C.'s life-time, A. was wholly discharged from his obligation. Strange v. Lee.3 East,

484.

A bond was given to A., B., C., &c. payable to them and their successors, as the governors of the society of musicians, conditioned to secure J. II.'s faithfully accounting with them and their successors, go vernors, &c. as their collector; afterwards the society was incorporated by letters patent, at which time J. H. had duly accounted for all monies collected by him; but after

the incorporation he received money for which he did not account; held that the obligor of the bond was not liable for such default. Dance v. Gridler. New Rep. 34. (As to the replication in actions on such bonds. See 1 Bos. & Pull.

640, and 8 Term Rep. 459, tit. PLEADING X.)

9 If A. subscribe a guaranty to B. for the honesty of C. who embezzles money, B. may maintain an action on the guaranty, though three years have elapsed without notice having been given of the embezzlement by B. to A. if A. was acquainted with the circumstances from any other quarter, and B. did not conceal it from him industriously.

And in such case A. will not be discharged from the guaranty, though B. appear to have given credit to C. for the amount of the sum embezzled. Peel & al. v. Tatlock. 1 Bos. & Pull. 419.

10 Under a bond of indemnity given by A., that B., who was appointed the general agent of C. the receiver of his rents, and the manager of his estates, should pay over to C. all rents which he should receive, as also the increase and improvements thereof upon any new contracts or renewals of leases; A. is answerable for all fines received by B., on renewing the leases, which were not paid over by him. Irish Society v. Needham. 1 Term Rep. 482. 11 If the obligee in a joint and several bond make one of two obligors his executor, with others, the action on the bond is discharged as to both obligors Cheetham & al. v. Ward

1 Bos. & Pull. 630. 12 But where A. as surety, and B. as principal, are jointly and severally bound to C., B. becomes insolvent, and C. the obligee, receives a dividead from his effects, and covenants not to sue B., and that if he do, the deed of covenant may be pleaded in bar,, C. may nevertheless sue A., for this is only a release to B. by construction. Dean v. Newhall. 8 Term Rep. 168.

13 It seems that one of several cosureties in a bond may recover against any one of the others his aliquot proportion of the money paid by him under the bond, regard being had to the number of sureties. Cowell v. Edwards. 2 Bos. & Pull.

268.

14 Even though the insolvency of the principal and of the other sureties be not proved. Ib.

15 IfA., B., and C. become bound as sureties for D. in three separate bonds, and any one of them be compelled to pay the whole debt of the principal, the two others are compellable to contribute in proportion to the penalties of their respective bonds. Deering v. Winchelsea (E. of) in the Exchequer, 1787. 2 Bos. & Pull. 270.

16 The latches of the obligees in a bond (conditioned for the principal obligor to account for and pay over from time to time all such tolls as he should collect for the obligees) in not properly examining his accounts for 8 or 9 years, and not calling upon the principal for payment so soon as they might have done for sums in arrear, or unaccounted for, is not an estoppel at law in an action against the sureties. The Trent Navigation Company v. Harley. 10 East, 34.

17

The Prince of Wales having granted an annuity for his own life, payable by the treasurer of his privy purse which annuity was assigned by the grantee to another, with the Prince's assent; and a surety having given bond to the assignee of the annuity, conditioned to pay it, if the Prince or the treasurer of his privy purse, or any other person for the Prince, did not pay it at the respective quarter days: held that the surety was bound at all events at law by the terms of the obligation to pay it, if the Prince, &c. did not at the stipulated times of payment; whether or not the grantee or assignee of the annuity had the right or means of compelling pay

as

ment, against the principal, or his funds, by reason of any default of such grautee or signee in not presenting a partienlar of his demand to the Prince's treasurer, as required in all cases within the statute 35 G. 3, c. 125, s. 7, on pain of being foreclosed of such demand; whatever equitable elaim might be founded by the surety on such neglect. O'Kelly v. Sparkes. 10 East, 369. 18 On a sale of lands, a bond was given by the grantee to save the grantor harmless against a certain mortgage which was an incumbrance on the land; it was held that the grantor was to be indemnified gainst the bond accompanying the mortgage, and for which the latter was a security, as well as against the mortgage itself. White v. De Villiers. 1 Johns. Cas. 173. 19 Where A. gave a boud with sureties to the United States, for duties, and A. was mentioned in the bond as the importer of the goods; and B. the surety paid the bond, it was held that he might maintain assumpsit against A. though in fact a third person was the real owner of the goods. Sluby v. Camplin. 4 Johns. Rep. 461.

a

20 Separate suits were brought against A. and B., two joint obligors on a bond, payable by instalments, and a ca. sa. was afterwards issued against B. for the costs taxed in the suit against him, and not for the instalment from which he was discharged after paying the costs. It was held that the discharge of B. from the ca. sa. for the costs was no discharge of A. the obligor, nor a satisfaction of the debt for which

court will interfere and set aside the proceedings. The people, at the relation of Cunningham, v. Duncan. 1 Johns. Rep. 311.

22 A bond given by a county treasurer, for the faithful discharge of his office, is intended to protect the public during the year only for which he was elected. Bigelow v. Bridge. 8 Mass. 275. 23 A bond may be delivered by a surety to the principal obligor as an escrow. Pawling v. United States. 4 Cranch, 219.

24 A bond cannot be delivered to one of the obligees as an escrow. Moss v. Riddle. 5 Cranch, 351.

1

2

3

III. Penalty.

Though in ordinary cases the debt on a bond is the real demand, and the penalty only the security; yet in bonds for securing a fund to a public charity, the penalty is considered to be the real demand or forfeiture. Anon. Lofft, 555.

Where a bond is forfeited in the lifetime of the testator, the penalty is the legal debt, and on the issue what is due must cover so much assets, but on a bond where the day of payment is not come, the assets only can be covered for the sum in the condition. Where an executrix pleads the penalties of three bonds, and the jury, by special verdict, find assets in one entire sum, if the court are of opinion, that the penalties of two of the bonds are to be considered as the debt due, but that the third shall cover no more than the sum really due upon it, they may deduct such penalties and sam due out of the assets found, and give judgment for the plaintiffs to recover the rest. The Bank of England v. Morice. 2 Str. 1028.

If the right of suing on the

In an action upon a bond, until the condition appears, the penalty shall be considered as the debt. Gerrard v. Delaval. 2 L. Raymond,

1196.

execution with the penalty of a bond, it may be reduced to principal, interest, and costs. And interest due on a note of hand, for which no damages were given by the verdiet, shall not be covered by this penalty. Amery v. Smabridge. 2 Black. 760.

Execution shall not be levied on an annuity bond and judgment for the whole penalty, but only for the arrears of the annuity, and the judgment stand as a security for future arrears. Ogilvie v. Foley. 2 Black.

1111.

6 In a judgment on a bond to pay an annuity, if a fi. fa. be sued out, and marked for only part of the penalty, a new fi. fa. for subsequent arrears cannot be taken out, without a sci. fa. under statute 8 & 9 W. 3. Howell v. Hanworth. 2 Black. 843. In debt upon bond for the penalty, where there are alternative parts of the condition, plaintiff must confine

paying the penalty of the bond and the costs of the action. Wild v. Clarkson. 6 Term Rep. 303. 13 In an action upon a judgment recovered upon a bond, interest may be given in damages beyond the penalty of the bond; though it were a judgment recovered abroad, viz. in Ireland. M'Clure v. Dunkin. 1 East, 436.

14 If an instalment of an annuity secured by bond be not paid on the day, the bond is forfeited, and the penalty is the debt in law. Judd v. Evans. 6 Term Rep. 399.

15 And therefore the defendant having been charged in execution for such a penalty previous to the last insolvent act, the court refused to order that sum to be reduced in the Marshal's book to the sum actually due for the arrears of the annuity, in order that he might take the benefit of that act. 6 Term Rep.

399.

8 Specific performance decreed, where the party insisted to forfeit the penalty. Hopson v. Trevor. In Chancery. 1 Str. 533.

9 A bond for performance of covenants or agreements, is only a security (under 8 & 9 W. 3, c. 11,) to the extent of the penalty. White v. Sealey. 1 Doug. 48.

But vide Lord Lonsdale v. Church. 2 T. R. 388.

(And see tit. PENALTY.) 10 In an action on a bond damages may be recovered for more than the penalty. Lonsdale (E. of) v. Church. 2 Term Rep. 388.

11 Therefore in debt on bond with condition to account for money to be received, the court will not stay proceedings upon paying the penalty into court. 2 Term Rep. 388. 12 But in a subsequent case the court ordered satisfaction to be entered on the record in an action on a bond of indemnity, on the defendant's

38

17

which enacts, "that in actions on any penal sum for non-performance of covenants, &c. the plaintiff may assign as many breaches, &c.; and if judgment shall be given for the plaintiff on nihil dicit, the plaintiff may suggest on the roll as many breaches, &c. as he shall think fit, upon which shall issue a writ to summon a jury, before the justices of assize, &e. to inquire, &c. and to assess the damages, &c." is compulsory on the plaintiff, and he cannot enter up judgment for the whole penalty on a judgment by default, as he might have done at common law. Roles v. Rosewell. 5 Term Rep. 538; and Hardy v. Bern. Rep. 540.

5 Term

After judgment for the plaintiff ou demurrer, in debt on bond conditioned to pay an annuity, the defendant cannot take out execution for the arrears due, but must assign breaches on the record under statute 8 & 9 W. 3. Walcot v. Goulding. 8 Term Rep. 126.

19 After oyer of the condition and non