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16. conditional.]— If those first signing a bond desire not to be bound unless all whom they expect to sign do so, they should declare their execution of it to be on this condition;30 and this should for convenience of evidence be expressed in the bond or signature.
17. Blanks.]-At common law a bond executed with a blank for the condition is not valid ; nor would it be even if afterward filled in, unless the filling in is otherwise authorized or ratified. But a bond with a blank for the amount of the penalty,32 or of the sum to be secured,33 executed, even by a surety, in that condition, with oral34 authority to fill the blank, will bind him, even though the agent exceeds his authority as to the amount.
But the usual authority to fill blanks and make alterations necessary to completing the security, does not sanction alterations after delivery.35
18. Acknowledgment, approval, filing, etc., defects, and amending.]— The rules as to acknowledgment, judicial approval, justification, and filing, and as to defects and amendment, will be more conveniently stated in connection with the subject of Undertakings.
In the application of those rules to Bonds, it may be added that the lack of a seal is equally amendable with other defects.36
FORM No. 35.
30 City of Los Angeles r. Mellus, 59 Cal. 444, 450; Bangs v. Bangs, 41 Hun, 41; Russell 1". Freer, 56 N. Y. 67. Failure of the principal to execute will not affect. O'Hanlon v. Scott, 86 Hun, 44, 35 N. Y. Supp. 31. In State v. Wallis, 57 Ark. 64, notice to the obligee was predicated upon the names of those not signing appearing in the bond.
31 Matter of Fitch, 3 Redf. Surr. (N. Y.) 457; Fitzgerald v. Staples, 88 Ill. 234.
32 Gary ". The State, 11 Tex. App. 527, 4 Tex. L. J. 487.
35 Exp. Decker, 6 Cow. (N. Y.) 59 (the court saying that such a power could not extend beyond delivery).
36 Hunter v. Ladd, 2 Ill. (1 Seam.) 551; People v. Rensselaer, 11 Wend. (N. Y.) 174. The court is given by statute power to amend a bond nuno pro tunr upon the application of the party executing it. N. Y. Code Civ. Pro.,
the obligors, may add, as principal,] and C. D. and E. F., of [residences], [as sureties,]37 am held and firmly bound to [here. name the beneficiary;* or, “the people of the State of New York;" or the public officer or trustee, as may be required by the order or statute under which the bond is given], in the penal sum of
dollars ($ ), to be paid to said obligee[s], or to his [or, their] executors, administrators or assigns (or if the obligee is a corporation, or officer, or trustee, or to his or, its or, their - successors or assigns), for which payment well and truly to be made I bind myself, my [or, if there is more than one obligor, we bind ourselves, our and each of our] heirs, executors and administrators, jointly [and severally) 38 firmly by these presents.
Sealed with my [or, our] seal [s], dated this 19.
[If recitals are desired insert them here, commencing WHEREAS :-)
[For forms, see the various proceedings, such as Arrest, Attachment, Injunction, Receiver, etc., and continue — Now, THIEREFORE, the condition — etc., as in next paragraph.]
THE CONDITION of this obligation is such, that if [here state condition according to the statute, judgment or order, under which the bond is given], then this obligation is to be void; othervise of full force and effect. [Signatures and seals.] Signed, sealed, and delivered in presence of
[signature of witness.]
37 Under N. Y. Code Civ. Pro., $ 811, the party, or principal need not join with the sureties unless the bond is given under a provision of the act which requires him to “execute” it.
Sureties in a bond required by the Code must be residents of the State. Id., $ 812. Practicing attorneys are not competent. Gen. Rule 5.
One surety is enough if he can justify in the full amount, even where the provision of the act requires “sureties;” otherwise, if it specifies two or more. Id., $ 811. Two are usually required by the courts.
38 A bond given by two or more obligors, under that act, unless otherwise expressly prescribed by law, must be joint and several in form. Code Civ. Pro., § 812. A bond is not invalid as to the
surety signing it because not also executed by another named therein as surety.
Everett V. Mitchell, 23 App. Div. 332, 48 N. Y. Supp. 303.
The words we and each of us bind ourselves,” etc., held equivalent to jointly and severally. Epis. Ch. of St. Peter v. Varian, 28 Barb. 644.
To enable an obligee, at common law, to sue any part of several oblig. ors in a bond instead of compelling him to sue one or all, the following language may be used:
“ For which payment, to be well and truly made, we bind ourselves and each of us, and any two or three [or, two, three, or four) of us jointly, severally, and respectively, firmly by these presents.” By N. Y. Code Civ. Pro., $ 454, plaintiff may sue all or any of the persons severally liable on the sa me instrument.
[Acknowledgment or proof as in Forms 1 or 6.]39 [Affidavits of sufficiency; see next Form.]
[For Forms for Justification and Approval, see Forms under UNDERTAKINGS, page 477, etc.]
[File with clerk of the court.] 40
FORM No. 36.
Affidavit of sufficiency of surety.41 [Venue.]
C. D., one of the sureties named in and who executed the foregoing bond, being duly sworn, says that he is a resident of the State of New York, and a householder [or, freeholder] in said State, and is worth the sum of There insert penalty of bond], over all the debts and liabilities which he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution. [Jurat.]
[Signature.] [Under N. Y. Code Civ. Pro., § 812, this must be subjoined to the bond, and thus separate title is unnecessary.]
FORM No. 37. Recitals and condition of bond given to indemnify surety.42 [As in Form 35, to place indicated for recitals].
Whereas, at the request of the [obligors) and on the security hereof, A. B. has become surety for said [obligors] on a certain bond [describe its general character, or, whereof a copy is annexed hereto marked A];43
Now, Therefore, the condition of this obligation is that if the said [obligors] shall and will at all times indemnify and keep indemnified the said A. B. from and against any loss, damages, costs, counsel fees and expenses whatsoever, which said A. B. shall or may, for any cause, at any time, sustain or incur by reason or in consequence of his having executed said bond, then this obligation to be void, otherwise to remain in full force and virtue.
39 A bond given in an action or proceeding must be acknowledged, or proved, and certified, in like manner as a deed to be recorded. N. Y. Code Civ. Pro., § 810. Rule V. Gen. Rules.
40 N. Y. Code Civ. Pro., § 816. Attorney for party must file. Rule IV, Gen. Rules.
41 The statute (Code Civ. Pro., § 812) requires
" the affidavit of each surety," and the general prac
tice is to present a separate affi davit for each.
42 Adapted from American Surety Co. 1. Thurber, 121 N. Y. 655.
43 It may be useful to incorporate the entire bond, which will be ef fected by such a reference. Mayor ? N. Y. Ref. Const, Co., 82 Hun, 553 31 N. Y. Supp. 714; Matson 2 Blossom, 4 N. Y. Supp. 489; Forst Leonard, 112 Ala. 296.
FORM No. 38.
Recitals and condition of bond of indemnity to sheriff.
[As in Form 35, to place indicated for recitals.]
Whereas, the above bounden A. B. duly recovered a judgment against M. N. in the Supreme Court for the county of for the sum of dollars damages and costs, upon which judgment execution has been issued, directed and delivered to the aforesaid [sheriff], commanding him that he should satisfy said judgment out of the property of said M. N. within said county; and
Whereas, certain goods and chattels appearing to belong to said M. N., [and which have been levied upon by said — sheriff under said execution,] are claimed by divers persons to be subject to their certain liens [or, are claimed by one 0. P. to belong to him ;]
Now, Therefore, the condition of this obligation is such that if the above bounden [obligors] shall well and truly save, keep, and bear harmless, and indemnify the said [sheriff], and all and every the persons aiding and assisting him in the premises, of and from all damage, liability, costs, expenses, actions and judgments that shall or may at any time arise, accrue, or be brought against hini, them, or any one of them, as well for the levying and making sale under and by virtue of such execution, of all or any personal property which he or they shall or may judge to belong to said M. N., as well as in entering any shop, store, building, or other premises for the taking thereof, then this obligation to be void, otherwise to remain in full force and virtue.44
FORM No. 39.
Condition of bond of deputy sheriff to sheriff. The condition of this obligation is, that the said [obligors] shall save and keep harmless and indemnified the said sheriff, as aforesaid, from each and every act, neglect or default of the said [deputy] of whatsoever nature or character, touching and concerning the execution and return of all such judgments, process, writs, and warrants of whatsoever nature as are or shall be delivered to the said sheriff; and shall also save and keep harmless and indemnified the said
sheriff, from and against
44 Such a bond will be presumed to relate only to property already levied upon, without proof that the plaintiff in the execution authorized or directed the subsequent levy. Clark
v. Woodruff, 83 N. Y. 518.
See, as to principles of construction of such a bond, Gamble v. Cuneo, 21 App. Div. 413, 47 N. Y. Supp. 548; aff’d, 162 N. Y. 634.
all issues, fines, demands, costs, liabilities, and charges whatsoever, hereafter to be produced, imposed, prosecuted, demanded, or demandable of or against said
as sheriff as aforesaid, his heirs, executors, or administrators, or his or their goods or chattels, lands, or tenements, for or by reason of any other neglect of any kind whatsoever of the said [deputy] in executing wrongfully or neglecting to execute the office of deputy sheriff for the said county during the time aforesaid. 45
FORM No. 40.
Condition in official bond of city marshal.
The condition of this obligation is such, that if the said M. N. shall well and faithfully execute the duties of said office of marshal, without fraud, deceit, or oppression, the above obligation shall be void; otherwise to remain in full force and virtue. 16
45 The sureties are liable to the sheriff's executrix for the amount of judgments paid by her based upon services of keepers improperly employed by the deputy to guard property seized under an execution. Gorman v. Finn, 56 App. Div. 155, 67 N. Y. Supp. 546; aff’d, 171 N. Y. 629.
46 In De Sisto v. Stemmel, 58 App. Div. 486, 69 N. Y. Supp. 431, it was held that the surety would not be liable for the failure of the marshal to return to the plaintiff in an action a sum of money deposited by him with the marshal as security upon a levy, and under an agreement between them.