the first part, for and in consideration of the sum of dollars, lawful money of the United States, to me paid by James Diggs, of, &c., of the second part, the receipt whereof is hereby acknowledged, have bargained and sold, and by these presents do grant and convey, unto the said party of the second part, his executors, administrators and assigns, the one equal, undivided half, of one hundred acres of barley, now growing on the rancho of E. F., near the town of Oro, aforesaid, one roan horse, and five thousand sheep belonging to me, and now in my possession, at the place last aforesaid; to have and to hold the same unto the said party of the second part, his executors, administrators and assigns, forever. And I do, for myself, my heirs, executors and administrators, covenant and agree, to and with the said party of the second part, his executors, administrators and assigns, to warrant and defend the sale of the said property, goods and chattels, hereby made, unto the said party of the second part, his executors, administrators and assigns, against all and every person and persons whomsoever.

Witness my hand and seal this 21st day of May, A. D. 1859. CHARLES SWIFT. [L. S.]

Bill of Sale of Registered or Enrolled Vessel.

Know all men by these presents: That I, A. B., of, &c., owner of the bark or vessel called the "Paul Pry," of the burden of three thousand tons, or thereabouts, now lying at the port of

for and in consideration of the sum of dollars, lawful money of the United States, to me paid, by C. D., of the place aforesaid, the receipt whereof I hereby acknowledge, have bargained and sold, and by these presents do bargain and sell, unto the said C. D., his executors, administrators and assigns, all the hull or body of said bark or vessel, together with the masts, bowsprit, sails, boats, anchors, cables, spars, and all other necessaries thereunto appertaining and belonging; the certificate of the registry of which said bark or vessel, is as follows, to wit: [copy certificate of registry in full:] To have and to hold the said bark or vessel, and appurtenances thereunto belonging, unto the said C. D., his executors, administrators and assigns, to his and their proper use, benefit and behoof, forever. And I do, for myself, my heirs, executors and administrators, covenant and agree, to and with the said C. D., his executors, administrators and assigns, to warrant and defend the said bark or vessel, and all the before mentioned appurtenances, against all and every person and persons whomsoever.

In witness, &c., [as in foregoing.]

See ASSIGNMENT, CHATTEL MORTGAGE, MINING, &c.

CHAPTER IX.

BONDS.

A BOND is a written obligation, under seal, holding the party who executes it to some performance, duty, obligation, or pay

ment.

An obligation under seal to pay a sum of money at a certain time, is called a single bond; but there is usually a condition affixed, upon the performance of which the bond is to be void, that may be termed a conditional bond.

It is usual to make the penalty of a bond twice the amount of the real debt, so as to cover interest and costs, as the party cannot recover beyond the amount expressed in the bond, even if the debt or damages secured should, when they come to be collected, amount to more than the penal sum of the bond.

In California, a seal may be made by an impression on wafer, or wax, or any impressible substance, or on the paper itself, or by writing a scroll with the pen.

The legal effect, at common law, of a bond, as differing from an obligation of like purpose not under seal is, that the seal is held to import that a consideration existed for giving the bond. But by the statute of California, bonds are placed upon the same footing with other non-negotiable instruments for the payment of money or goods, so that if suit be brought on a bond which was given without consideration, or where the consideration has failed in whole or in part, the defendant may plead and prove in defence such want or failure of consideration.'

The statute referred to, embraces within its provisions, bonds, due-bills, and other instruments of writing not negotiable, made by any person, or body politic or corporate, for the payment of money, or articles of personal property, or the payment of money in personal property, or acknowledging any such indebtedness.

1 Wood's Dig. art. 192 and 201; Comstock v. Dennio. Jan. Term, 1859.

It also provides that any such instrument may be assigned by endorsement, in the same manner as bills of exchange,' and the assignee may recover the same of the maker by suit in his own name; except that the defendant can set up in answer, any defence to the instrument that arose before he had notice of such assignment.'

It also provides that the assignee, if he fails to recover of the maker of such bond or other instrument, may recover of the assignor; provided he has used due diligence, by suing the maker within sixty days after the maturity of the obligation; or, the maker absconds within twenty days; or, a suit, if instituted, would have been unavailing.'

It also provides that fraud or circumvention used in obtaining or making the instrument, shall vitiate the same.

A bond, and all written instruments, may be sued on at any time within four years after they become due, but not afterward. But when the party liable dies within that time, claim must be presented to his representatives, within ten months after it becomes due, or the debt will be lost. See chapter on EXECUTORS AND ON ADMINISTRATORS, and see index, LIMITATION OF ACTIONS.

A bond required by law, or the provisions of any statute, will be deemed sufficient if it conform substantially to the form prescribed by the statute, and do not vary in any matter, to the prejudice of the rights of the party to whom, or for whose benefit, such bond shall be given. So in California it has been held that where the word plaintiff was by mistake used for defendant, in reciting the condition, the bond was held good; and that sureties to a bail bond cannot avail themselves in defence to an action thereon of an insufficiency of the justification of the undertaking."

A bottomry bond is an obligation founded on the joint security of a ship and its owners, and given for money borrowed, which is to be repaid on the successful termination of a voyage. At home, the bond is executed by the owners, or the master as their agent. In a foreign country, the master has full authority to

1 Wood's Dig. art. 198.

2 id. 199.

3 id. 200.

47 Paige, 50; 26 Wend. 502.

68 Cal. 549.

$7 Cal. 402,

bind the owners, and pledge the ship and cargo by a bottomry bond, in cases of necessity. Any amount of interest may be exacted, so long as the sea-risk continues, irrespective of the usury laws; but when that terminates, the obligation will only draw legal interest. Respondentia is a contract similar to bottomry, except that the loan is made upon the chance of the safe arrival of the cargo. Like bottomry, it is used in cases of emergency.

An alteration of a bond, or other sealed instrument, in a material part, without the consent of the obligor, by any party claiming to recover under it, renders it void; otherwise, if the alteration be made by a stranger, provided the true contents can be made to appear by testimony, though the burden of proof will then be thrown on the party claiming under the instrument. But no alteration or erasure will defeat the recovery of the bond, unless it materially affects the rights or condition of the obligor, or is the result of a fraudulent intent to effect the same object.'

Bonds of public officers and other bonds of a special character are treated of under their respective titles. See Index.

FORMS.

Common Bond with Condition.

Know all men by these presents: That I, A. B., of the town of in the county of and state of California, am held and firmly bound unto C. D., of, &c., in the sum of one thousand dollars, lawful money of the United States, to be paid to the said C. D., his executors, administrators, or assigns; for which payment, well and truly to be made, I bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal. Dated the thousand eight hundred and

day of

one

The condition of the above obligation is such, that if the above bounden A. B., his heirs, executors, or administrators, shall well and truly pay, or cause to be paid, unto the above-named C. D., his executors, administrators, or assigns, the just and full sum of five hundred dollars, in five equal annual payments, from the date hereof, with lawful interest, then the above obligation to be void; otherwise to remain in full force and virtue. A. B. [L. S.]

Sealed and delivered,

in presence of

G. H.

1 2 Cal. 520.

Bond to a Corporation.

Know all men by these presents: That I, A. B., of, &c., am held and firmly bound, unto the S. F. Gas Company, in the sum of one thousand dollars, lawful money of the United States, to be paid to the said S. F. Gas Company or assigns; for which payment, well and truly to be made, I bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal. Dated the thousand eight hundred and

day of

one

The condition of the above obligation is such, that if the above bounden A. B., his heirs, executors, or administrators, shall well and truly pay or cause to be paid, unto the above-named S. F. Gas Company, or assigns, the just and full sum of, &c. [as in foregoing].

Bond of two Obligors.

Know all men by these presents: That we, A. B. and E. F., of, &c., are held and firmly bound unto C. D., of, &c., in the sum of one thousand dollars, lawful money of the United States, to be paid to the said C. D., his executors, administrators, or assigns; for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents.

Bond of Indemnity on paying Lost Note.

day of

Know all men, &c. [as above] Whereas the said C. D., on the day of 18 did make, execute, and deliver unto the above bounden Á. B., for a valuable consideration, his promissory note, for the sum of one hundred dollars, written due and payable, on or before the then next, with interest, which said promissory note the said A. B., since the delivery of the same to him, as aforesaid, has in some manner, to him unknown, lost out of his possession; and whereas the said C. D. hath this day paid unto the said A. B. the sum of dollars, the receipt whereof the said A. B. doth hereby acknowledge, in full satisfaction and discharge of the said note, upon the promise of the said A. B. to indemnify and save harmless the said C. D. in the premises, and to deliver up the said note, when found, to the said C. D. to be cancelled: Now, therefore, the condition of this obligation is such, that if the above bounden A. B., his heirs, executors, or administrators, or any of them, do and shall, at all times hereafter, save and keep harmless the said C. D., his heirs, executors, and administrators, of, from, and against the promissory note aforesaid, and of and from all costs, dam