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taking so signed is approved and accepted by the party, the surety will be held liable, 96
5. naming obligors.]— To render a bond satisfactory, all who execute it should be named in it. One who executes it, though not named in it, is bound;97 yet the addition may affect the liability of sureties who had previously executed it.98
The failure of one named in a bond as an obligor, to execute it, does not alone vitiate it as to those who do execute it. 99
6. describing sureties.] — It is not essential that those who execute as sureties be described as sureties in the bond, even under a statute requiring it to be executed by surety, especially if the recitals show who are the parties to the proceeding; but designating them as sureties may be a convenient protection of their rights as such if they should be called on to respond."
7. —— words of joint or several obligation.]— If the obligors simply bind themselves jointly, at common law, all must be sued if any, so long as living, but the death of a surety would discharge his estate.3
If they bind themselves“ jointly and severally," at common law any one may be sued, or all, but not more than one and less than all. Under the Code any number may be sued without the others.
86 Wilmont v. Meserole, 16 Abb. Pr. (N. S.) 309; American Surety Co. v. Crow, 22 Misc. 573, 49 N. Y. Supp. 946; Tessier v. Crowley, 17 Neb. 207, 22 Northw. Rep. 422.
97 Exp. Fulton, 7 Cow. (N. Y.) 484 (holding such bond sufficient on appeal); S. P., Decker v. Judson, 16 N. Y. 439; George v. Tate, 102 U. S. 564.
Fournier v. Cyr, 64 Me. 32; Ahrend v. Odiorne, 125 Mass. 50 (names of obligors left blank).
McLain v. Simington, 37 Ohio St. 484 (name of surety omitted from body of undertaking),
98 Decker v. Judson, 16 N. Y. 439.
100 Shaw v. Tobias, 3 N. Y. 188; Board of Trustees v. Scheik, 10 Bradw. (III.) 51, 14 Chic. L. N. 211 (official bond). See page 32, paragraph 16.
1 Stevens v. Richardson, 20 Blatchf. 53, 9 Fed. Rep. 191. 2 Gere v. Clarke, 6 Hill, 350; De Agreda v. Mantel, 1 Abb. Pr. 130. 3 Wood v. Fisk, 63 N. Y. 245; otherwise by N. Y. Code Civ. Pro., $ 758.
4 Leonard v. Spiedel, 104 Mass. 356; Minor 0. Alex. Mech. Bank, 1 Pet. (U. S.) 46.
5 N. Y. Code Civ. Pro., $ 454; Toucey v. Schell, 15 Misc. 350, 37 N. Y. Supp.
Under the Code a bond executed by a surety or sureties, as prescribed by that Code, must, where two or more persons execute it, be joint and several in form.
8. - -words of representation.]— It is essential to an acceptable bond that it purports to bind the heirs, executors and administrators of the obligor, if the obligor be a natural person. If a corporation, the appropriate word is “successors."
9. Parties.— Obligee.]— To render a bond satisfactory, the obligee should in some unmistakable manner be designated in the instrument. 8
If the statute, rule, or order under which it is given does not designate the obligee, the bond may properly designate the party for whose protection the security is given.'
10. -- words of joint or several interest.]— If it is desired that the bond shall secure separate interests, so tliat if either one of several obligees is injured by a breach he may sue in his own name without having to join the others, 10 it is better to
6 N. Y. Code Civ. Pro., 8 812. A failure to obey the section does not benefit the sureties. Denike v. Denike, 61 App. Div. 492, 70 N. Y. Supp. 629.
7 Schenke v. Rowell, 1 Abb. N. C. 295 (where an instrument not expressly binding heirs, executors and administrators was set aside as not complying with a statute requiring a bond as security for costs); S. P., 17 Fed. Rep. 820.
If, however, such a bond were accepted and acted on, the heirs, etc., might be held liable under the statute as to liability of representatives. N. Y. Code Civ. Pro., $$ 758, 1837. Contra, Taylor v. Grace, 6 No. Car. 66.
8 Preston v. Hull, 23 Gratt. (Va.) 600, 602 (where it was held that a bond payable to "blank" was a nullity, and that an agent with parol authority could not insert a name as obligee and render it valid). Contra, Manhattan Sav. Inst. v. N. Y. National Exch. Bank, 42 App. Div. 147, 59 N. Y. Supp. 51.
9 Bigler v. Waller, 12 Wall. 142, 149. A bond given to plaintiff for his benefit, which names him as obligee, where the statute requires the bond to run to the people, is enforcible as a common law bond. Carl 1. Mever, 51 App. Div. 5, 64 N. Y. Supp. 1077; S. P., Brown, etc., Co. v. Ligon, 92 Fed. Rep. 851; People v. Love, 19 Cal. 676. Compare Witherbee 1. Witherbee, 55 App. Div. 181, 66 N. Y. Supp. 1036.
Where a statutory bond is given to an officer for the benefit or protection o a party to the action or a third person, or to a party for the benefit of himsel or any other one interested, it may, unless the statute otherwise prescribes be enforced by an action in the name of the obligee (for he is a trustee of a express trust), or in the name of the person intended to be protected (for h is the real party in interest). See, for instance, People 1. Horton, 9 N. V 176; Barnes v. Webster, 16 Mo. 258; Sheppard . Collins, 12 Iowa, 570 Dutton 1. Kelsey, 2 Wend. 615; People v. Holmes, 5 id. 193.
In absence of a statutory provision, action must be brought in name obligee. Henricus v. Englert, 137 N. Y. 488.
express the penal clause accordingly, as running to them or either of them, or, if there are more than two, to them and each or any of them, as there is some difference of opinion whether without special words of severance an action by less than all would lie. 11
11. -- words of representation.]— It is usual but not essential to the validity of the bond that it be expressed as running to the obligee, his executors, administrators, and assigns, if he be a natural person; if a corporation, to the successors and assigns.
Some forms in use mention, in connection with the obligee and before executors, etc., “his certain attorney.” But this can only lead to uncertainty. Without this clause an attorney duly authorized could require and receive payment; and if the clause is intended to confer authority on the existing attorney or record to do so, it is of doubtful adequacy. The word “ certain " cannot make that certain which is not so without it.
12. Date.]— To render a bond acceptable it should be dated, although it is not essential to its validity, unless required by the statute," since a bond takes effect only from the time of its delivery,12 and the day of the delivery may be shown whenever it becomes material.14
In the common law form still so uniformly in use in many parts of the country, the date and the statement that the parties have affixed their seals, are inserted at the end of the penal clause, and before the condition.
13. Condition, and recitals.]— The object of the condition is to state the acts, a performance of which on the part of the obligor or others will exonerate him from liability for the penalty; and in order to define the liability of the obligors according to the
10 The objection to this course is that a recovery by a part might possibly exhaust the penalty and leave others remediless.
11 Affirmative.- Alexander V. Jacoby, 23 Ohio St. 358.
Vegative.— Tinslar v. Malkin, 12 Weekly Dig. (N. Y.) 530 (dismissing complaint by one of two joint obligees on an attachment bond).
12 Plumpton v. Cook, 2 A. K. Marsh. (Ky.) 450. (“ The act of assembly under which these proceedings were had does not require the bond to be dated; and at common law a bond without a date is as valid as one with a date. The want of a date, therefore, cannot vitiate the bond."— Per Curiam.)
13 Reilly v. Dodge, 42 Hun (N. Y.), 646.
14 Pierce v. Richardson, 37 N. H. 306, 313 (where a bond executed on Saturday was by mistake dated on Sunday).
Fournier v. Cyr, R4 Me. 32 (where the date had been left blank).
circumstances and object with which the bond is given, and afford evidence of its actual consideration, the circumstances and object should be carefully stated in a recital introducing the condition, because the recitals are regarded as expressing the precise intent of the parties, and are held to limit and control the condition,15 and are evidence against the obligors of the facts recited. 16
In drawing a bond to secure payment of any judgment or decree that may be recovered, it should be observed that such a bond does not necessarily postpone its enforcement pending apreal from such a judgment; 17 but it will cover a judgment or decree in an appellate court18 unless the terms of the bond indicate otherwise. Such a bond will cover a deficiency judgment in foreclosure.19 The fact that there was a statutory security on appeal will not impair the remedy on the bond.20
A bond to pay moneys if recovered, may mean actual collectional or beneficial realization of an equivalent, as in case of strict foreclosure in lieu of foreclosure and sale,22 and thus be not enforcible merely on recovery of judgment.
14. Seal.]—At common law a seal is essential to a bond and there should be a separate seal for each obligor.23 An instrument
15 Winters v. Judd, 59 Hun (N. Y.), 32; Mayor v. N. Y. Refrigerating Co., 146 N. Y. 210; O'Brien v. Murphy, 175 Mass. 253; Bennehan v. Webb, 6 Ired. (N. C.) Law, 57.
In Sonneborn v. Libbey, 102 N. Y. 539, it was held that a bond given in pursuance of an order is to be construed together with the order, and that general words in the bond are restrained by the terms of the order.
The recital may hold the obligors liable, notwithstanding a mistake in the judgment intended to be secured. Souvais v. Leavitt, 53 Mich. 577, 19 Northw. Rep. 261.
10 The recital of a material fact estops the signers of the instrument from denying that fact when sued upon the instrument. Johnston v. Smith, 25 Hun, 171.
The recital of another instrument will let that instrument in evidence without proof of its execution. Clark v. Mix, 15 Conn. 152.
17 Wadsworth v. Green, 1 Sandf. 78 (lessors' agreement to return bonus paid for lease if their title should under judicial decision be held invalid, held enforcible on getting a judicial decision of any competent tribunal, rithout decision of court of last resort).
18 Rynearson v. Fredenburg, 42 Mich. 412.
Even without suit. Wood v. Young, 5 Wend. 620. 22 Morgan v. Plumb, 9 Wend. 287.
23 West v. Eau Claire, 89 Wisc. 31; Barnet v. Abbott, 43 Vt. 120. A recital that the bond is sealed will control. Met. Life Ins. Co. v. Bender, 124 N. Y. 47.
without a seal is not a compliance with a statute requiring a bond.24 In some States a statute dispenses with seal.
But even where a seal is requisite, the party for whose benefit the bond is given may waive it and enforce an unsealed instruinent as a common-law obligation, if it is valid in other respects.
It is always for the interest of the party taking a sealed instrument to mention in the instrument itself that it has seal affixed, for in some cases this aids proof in case of the loss of the seal or the omission to indicate the seal in making a copy used as secondary evidence.
15. Execution.]— Bonds tendered in legal proceedings should be executed by the obligor in person, or by an attorney duly authorized by a proper power under seal.26
Where the obligor .signs in person, it is not necessary that it be done in the presence of a subscribing witness. It is sufficient that the obligor acknowledges the instrument as his deed in the presence of the witness and desires him to attest it.27
Where the obligor is illiterate, or blind, or deaf and dumb, etc., the contents of the bond should be accurately made known to him in some proper manner before execution, in order to render the bond binding upon him.28
Bonds given under penal requirements must be exacted only in strict compliance therewith.29
24 Tiffany v. Lord, 65 N. Y. 310; State v. Thompson, 49 Mo. 188 (holding it error to give judgment for plaintiff on an instrument purporting to be a bond, but not sealed).
25 Kelly v. McCormick, 28 N. Y. 318, aff’g 2 E. D. Smith, 503; Board of Education v. Fonda, 77 N. Y. 350, and cases cited; County of Redwood v. Tower, 28 Minn. 45; Stegman v. Hollingsworth, 60 Hun, 579, 14 N. Y. Supp. 465.
26 Basham 0. Com., 13 Bush (Ky.), 36.
The common law rule that the writing of the obligor's name by a third person at the request and in the presence of the obligor is sufficient, is not always applicable under the statutes regulating practice. See, for instance, Billington v. Commonwealth, 3 Ky. L. Rep. 19.
In Rhode Island v. Louthain, 8 Blackf. 413, where a bond signed by an agent having only parol authority was immediately afterwards shown to the obligor, who acknowledged it to be his act and deed, it was held sufficient evidence of execution to go to a jury. 8. P., Manh. Life Ins. Co. v. Alexander, 89 Hun, 449, 35 N. Y. Supp. 325; afr’d, 158 N. Y. 732.
To contrary effect is Price v. State, 12 Tex. App. 235 (where bail bond was held void although principal obtained his liberty by it).
27 Pequawkett Bridge v. Mathes, 7 N. H. 230.
20 People ex rel. v. Higgins, 151 N. Y. 570; Decker v. Judson, 16 N. Y. 439; People r. Mitchell, 4 Sandf. 466.