truly discharged, and shall continue truly and faithfully to discharge, the du ties" of said office, the retrospective part of the condition may be rejected as surplusage: United States v. Brown, Gilp. 155. So, where the condition prescribed for a treasurer's bond was that he should “pay over according to law all moneys. . . . received for state, county, township, or other purposes," and the condition expressed in the bond was that he should "faithfully and impartially discharge all the duties of his said office agreeably to law:" State v. Findley, 10 Ohio, 51. In such a case, the condition expressed clearly includes the statutory condition. Mr. Justice Grimkè, delivering the opinion in the case last cited, said: "That part which is legal is marked out by the statute-book itself, and is therefore as completely severable from the rest as if the two parts were separated in the condition of the bond. There can be neither mistake, confusion, nor injustice in so holding. The law is not so absolutely a cabalistical science as to refuse to listen to the interpretations of good sense."

The same rule applies to attachment bonds: Drake on Attachments, sec. 130; Ranning v. Reeres, 2 Tenn. Ch. 263; and to injunction bonds: 2 High on Inj., sec. 1622; Johnson v. Vaughan, 9 B. Mon. 217; Proprietors v. Mussey, 48 Me. 307; Holliday's Ex'rs v. Myers, 11 W. Va. 276, citing the principal case; George A. Rubelman Hardware Co. v. Greve, 21 Cent. L. J. 108. So it applies to appeal bonds and bonds on writ of error: Sanders v. Rivers, 3 Stew. 109; McKernan v. Hall, 1 Yerg. 397; Terry v. Stukely, 3 Id. 505; Banks v. Mc Dowel, 1 Coldw. 84; Sharp v. Pickens, 4 Id. 268; Hutchisson v. Fulghum, 4 Heisk. 550. Where the statute requires an appeal bond to be conditioned for the payment of the costs of appeal only, or the costs and damages, and such a bond is in fact conditioned to prosecute the appeal with effect or to perform the judgment of the appellate court, or the like, the condition will be cut down to that prescribed by the statute, and judgment can be rendered on the bond only for the costs of the appeal, or the costs and damages: Id. This was settled in Tenuessee, in particular, in the decisions above cited, but it is said in Sharp v. Pickens, 4 Coldw. 268, that the doctrine at first might "well have been questioned."

In bail bonds and recognizances for appearance, also, non-statutory conditions superadded to those which are statutory may be rejected as surplusage, if sepa. rable, and the residue held valid if the statute does not make bonds void which do not conform to it: Maleverer v. Redshaw, 1 Mod. 35; Whitted v. Governor, 6 Port. 335. In Maleverer v. Redshaw, supra, Twisden, J., referring, doubtless, to Norton v. Simmes, Hob. 14, where a bail bond superadding non-statutory conditions was held void under statute 23 Hen. VI., c. 9, because the statute expressly made it so, said: “I have heard Lord Hobart say upon this occasion, 'that because the statute would make sure work, and not leave it to exposition what bonds should be taken, therefore it was added that bonds taken in any other form should be void;' for, said he, the statute is like a tyrant, where he comes he makes all void, but the common law is like a nursing father, makes void only that part where the fault is, and preserves the rest."

While it is thus frequently held that a bond superadding to conditions prescribed by statute others which are non-statutory may be sustained as a statutory bond as to the former, rejecting the latter as surplusage, it has been thought to admit of some question whether or not the non-statutory conditions might not be enforced as a common law obligation independently of the statute. In a number of decisions it has been declared that the non-statutory conditions in such a case were absolutely void: Hall v. Cushing, 9 Pick. 404; Armstrong v. United States, Pet. C. C. 46; United States v. Howell, 4 Wash.

620; United States v. Humason, 5 Saw. 537; George A. Rubelman Hardware Co. v. Greve, 21 Cent. L. J. 108. In the case last cited, a Missouri case, there was an injunction bond containing some conditions prescribed by statute, and others which were non-statutory, and the action was brought on the latter, disregarding the former; but it was held that it could not be maintained, because the non-statutory conditions were without consideration. Lewis, P. J., delivering the opinion, said: "All the cases show that the interpolation of extrastatutory conditions will not modify the force of a statutory bond, or impair the efficacy of its statutory stipulations. But that an extrastatutory stipulation in such a bond may be enforced alone is quite another proposition. The statute offered to the obligor a restraining order upon certain conditions, and subject to certain consequences in specified contingencies. The terms of the present bond subject him to a condition not imposed by the statute, and this action seeks to fix upon him consequences which were not suggested in the statutory proposal, and which curtail its benefits in a way not warranted by the law. Such a condition is contrary to the manifest policy of the law, and is therefore void. If the obligor has realized the benefits for which the bond was given, he has, in the statutory undertakings, supplied the whole consideration for them which the law exacted. It is as if A should direct his servant to sell a piece of property to B for a certain price. The servant puts an advance upon the price for his own benefit and pockets the difference. This is no less a fraud on the intentions of A because B was willing to pay the excess. The extrastatutory undertaking is without any consideration which the law will recognize."

The cases hereinafter mentioned, in which it has been held that bonds containing such extrastatutory conditions could be sustained as common-law obligations, seem to us to be at variance with the doctrine of this decision.

2. Bonds Containing Extrastatutory Conditions Held Void, when.—Of course where the statute, expressly or by necessary implication, declares void a bond conditioned otherwise than as prescribed by the statute, there can be no question as to its entire invalidity. So if the bond is exacted colore officii, it is void: Smith v. Allen, 21 Am. Dec. 33; Burrall v. Acker, 35 Id. 582; United States v. Tingey, 5 Pet. 115; United States v. Humason, 6 Saw. 199; Wooters v. Smith, 56 Tex. 198. So if the good and bad conditions of a statutory bond are not separable, the whole bond is void: Nottingham v. Giles, 1 Pen. 120; United States v. Brown, Gilp. 180, explaining United States v. Morgan, 3

Wash. 10.

In Texas it seems to be established that if a bail bond, official bond, or other statutory bond contains extrastatutory conditions more onerous than the statute requires, the whole bond is void: Janes v. Reynolds's Adm'rs, 2 Tex. 250; Johnson v. Erskine, 9 Id. 1; Turner v. State, 14 Tex. App. 168. So in Georgia, where a bail bond omitted a statutory condition beneficial to the bail, and contained an extrastatutory condition which was prejudicial, it was held void: Tucker v. Davis, 15 Ga. 573.

3. Bond Containing Extrastatutory Conditions Valid as Common-law Bond, tchen. It has heen held in a number of well-considered cases that where a statutory bond is voluntarily given containing conditions not prescribed by the statute, and is not declared void by the statute, expressly or by implica tion, nor contrary to public policy, though not valid in its entirety as a stat utory bond, it is good as a common-law bond: United States v. Hodson, 10 Wall. 395; United States v. Mora, 97 U. S. 413; Hester v. Keith, 1 Ala. 316; Ware v. Jackson, 24 Me. 166; Cleaves v. Dockray, 67 Id. 118; Morse v. Hodsdon, 5 Mass. 314; Philadelphia v. Shallcross, 14 Phila. 135; Slutter v. Kirken

dall, 100 Pa. St. 307; Ring v. Gibbs, 26 Wend. 502. Thus an official bond imposing an obligation greater than the statute required was held binding on both principal and surety to the full extent of its terms, where such construction was not forbidden by the statute nor contrary to the intention of the obligors: Philadelphia v. Shallcross, 14 Phila. 135; Cleaves v. Dockray, 67 Me. 118. So where one voluntarily gave a forthcoming bond with a condition more onerous than the officer had a right to require, it was held valid to its full extent as a common-law bond: Slutter v. Kirkendall, 100 Pa. St. 307. Where the condition of an executor's bond does not conform to the statute, but requires nothing more than the statute requires, and the bond is voluntarily given, and is not made void by the terms of the statute, it is unquestionably good as a common-law obligation: Ordinary v. Cooley, 30 N. J. L. 179. See also Woolwick v. Forrest, 2 N. J. L. 115; Middletown v. McCormick, 3 Id. 500, for an application of the same rule to other official bonds.

A replevin bond executed under statute 11 Geo. II., c. 19, sec. 23, conditioned to appear and prosecute the action with effect, to make return of the property if return was adjudged, and to save the sheriff harmless, the latter clause being in excess of the statute, was nevertheless held valid in Dunbar v. Dunn, 10 Price, 54. The court "declared they were clearly of opinion that the condition to indemnify the sheriff was consistent with the established form of replevin bond as used in practice; and that there was no necessity to pursue so strictly, as it had been urged the defendant ought to have done, the language of the statute in taking such bonds, as the 11 Geo. II. had not declared bonds taken in any other than a prescribed form should be void." They observed "that the form of the bond now in use was comnion before the statute, and the condition was in every respect reasonable and unobjectionable, and that the sheriff would be also entitled to take another bond for his own indemnity, if that part of the condition which was now objected to were excluded, the effect of which would be to put the party to the expense of two bonds." See Morris on Replevin, 270; see also Morse v. Hodsdon, 5 Mass. 314; Lamden v. Conoway, 5 Harr. (Del.) 1. A bastardy bond superadding to the statutory condition for appearance a condition to abide the judgment is good, such condition being common in such bonds: New Haven v. Rogers, 32 Conn. 221.

THE PRINCIPAL CASE IS CITED to the point that a guardian's bond whose condition is less extensive than the statute prescribes is nevertheless valid, in Holliday's Ex'rs v. Myers, 11 W. Va. 294; and Gibson v. Beckham, 16 Id. 333. It is cited also in Reed v. Hedges, Id. 194, to the point that a guardian's bond need not recite the guardian's appointment; and in Chapman v. Commonwealth, 25 Gratt. 736, to the proposition that an officer and his sureties are estopped by the official bond executed by them from denying the validity of his appointment.

CRIBBINS V. MARKWOOD.

[13 GRATTAN, 495.]

SALE OF REVERSION BY EXPECTANT HEIR MAY BE RESCINDED FOR INADEQUACY of price, according to the established doctrine in England. RESCISSION OF SALE OF REVERSION BY ONE NOT EXPECTANT HEIR, FOR INADEQUACY of consideration, was not a settled principle of equity jurisprudence in England at the date of American independence.

POLICY OF THIS COUNTRY FAVORS FREE ALIENATION of property. SALE BY ADULT OF VESTED EXPECTANT INTEREST in reversion or remainder is not against public policy in Virginia, and is binding if not procured by ill practice. INADEQUACY OF PRICE IS NOT ALONE GROUND FOR RESCINDING SALE OF REVERSION by a young man who had just attained his majority, but it may, with other circumstances, be evidence of fraud.

RETENTION OF PART OF PRICE BY PURCHASER IS NO GROUND OF RESCISSION of a sale of a reversion, especially where it was withheld by consent. BILL to rescind and set aside a sale of the plaintiff's interest in certain realty. The case is stated in the opinion. The court below found no actual fraud, but decreed a rescission on the ground that it was a sale of a reversion for half its value by an inexperienced youth. The defendant appealed.

Baldwin, for the appellant.

Michie, for the appellee.

By Court, ALLEN, P. It appears from the pleadings and proofs in this cause that the father of the appellee departed this life intestate about fourteen years before the institution of this suit; that he owned at the time of his death a house and lot in the village of Mount Sidney, Augusta county, and an outlot containing about eleven acres adjoining the village. He left four children (all infants), one of whom died under age. The appellee was the eldest child; and when he attained his full age on the twenty-fourth of November, 1851, he was the owner of an undivided one third of said property, subject to the dower interest of his mother. The estate was a vested interest, two thirds a present, and one third an interest in reversion; the whole was in the occupation and possession of his mother, to whom dower had not been assigned. Immediately after arriving at full age, the appellee offered his interest in the property for sale to sundry individuals. In less than two months after he attained his majority he made sale of it to the appellant for one hundred and sixty dollars, of which one hundred dollars was to be paid down and sixty dollars to be paid in nine months, in paper. On the sixteenth day of January, 1852, the appellee conveyed the property to the appellant; on the tenth of March thereafter his mother died with pulmonary consumption, after a confinement to her bed of about a month. The appellee instituted this suit on the twentieth of March, 1852, to set aside the sale and to annul the deed, upon two grounds: 1. Of actual fraud, circumvention, and imposition on the part of the appellant; and 2. Of constructive fraud supposed to be imputed by the policy of the

law to such a bargain, growing out of the mere inadequacy of the price. The evidence shows that the appellee had not actually resided with his mother for several years before he attained full age; and that for some years he had been doing business for himself, uncontrolled by his mother or any other person. But as he was a frequent visitor at her house, he had better opportunities than the appellant of informing himself of the condition of her health. There is no allegation in the bill or anything in the proof to show that the appellee was not fully acquainted with his rights, and the extent of his interest in the property when he contracted to sell it. He seems to have been a young man of at least ordinary intelligence, and as he had been doing business on his own account for some years, he must have had some experience in dealing. At the time of the sale he was indebted in a sum not exceeding fifty dollars, but no portion thereof was due to the appellant; and it is not proved that there was any relation of confidence between the parties. The proposition to sell appears to have been made by the appellee to the appellant; and this after he had been offering his interest in the property for sale to others. Upon the facts in the record, the court below held, and as I think correctly, that there was not the least reason for imputing any actual fraud to the appellant in this transaction.

In view of the facts that the property was undivided, that dower had not been assigned, that the widow from the death of her first husband had been, and at the time of the sale was, in the actual possession of the whole thereof, the court below seems to have considered that the interest sold by the appellee was merely reversionary. So regarding it, the question is presented for the first time in this court for direct adjudication, How far it is incumbent on the party dealing with the seller of such an expectant interest to establish, not only that there was no actual fraud, but that he had agreed to pay a fair and adequate consideration?

In reference to expectant heirs, and those sustaining that character, the doctrine seems now to be fully established in England that they are entitled, for mere inadequacy of price, to have the contract rescinded, upon the terms of refunding the money and interest received. In Edwards v. Burt, 15 Eng. L. & Eq. 434, decided in 1852, the lord chancellor observes that "it is unnecessary to canvass or discuss the principles on this subject, for the rule on it was finally and distinctly established by the house of lords in the case of Lord Aldborough v. Tyre, 7