all or any of the purposes aforesaid, to make, and at pleasure to revoke, giving and hereby granting to my said attorney, full power and authority to execute and perform all and singular the matters aforesaid, as fully and amply in every respect as I myself could do if personally present; hereby ratifying and confirming all and whatsoever my said attorney shall lawfully do, or cause to be done, in and about the said premises by virtue hereof. IN WITNESS, &C.

A BOND OF OBLIGATION]-Is a deed in writing whereby one man doth bind himself to another to pay a sum of money or do some other thing; and the man making this deed is called the obligor, and he to whom it is made is called the obligee. Shep. Pr. 70. Touch. 367.

And it is sometimes simple, or single:-that is, when it is to pay a sum of money, or do some other thing, and when it is without any defeazance or condition annexed to it, or in it. And this also is sometimes with a penalty called a penal bill: and sometimes without a penalty, and this without a penalty is most properly called an obligation, and sometimes a single bill, or bond. Shep. Prec.71. Touch. 367.

And sometimes it is double or conditional; which is when it is attended upon and accompanied with a condition; and then it is said to be a bond containing a penalty with condition to pay money, or do or suffer some act or thing. Shep. Prec. 71. Touch. 367.

And this condition is sometimes called a defeazance, and particularly so, when it is (as sometimes it is) contained in another separate deed or instrument; but most commonly, it is inserted in the same deed wherein the obligation, being the other part of it, is contained. And then also it is either written under the obligation or included in the body of it, or indorsed upon the back of it. And, quacunque via data, if the condition be performed, the penalty is saved; if not, the penalty is forfeit, or absolute at law. Shep. Prec. 71. Touch. 367, 371.

And it is usually thus:-" the condition of this obligation is such, that if, &c. then this obligation shall be void, &c." Shep. Prec. 72.

For the further understanding of this kind of instrument, these things are to be known. Shep. Prec. 72.

1. All that which is required to the well making of every deed, is required also to the making of this deed. Shep. Prec. 72.

2. An obligation must be made upon parchment or paper; but if it be made on a tally, piece of wood, or any other thing but paper or parchment, although it be sealed and delivered, yet it is void. Shep. Prec. 72. Shep. Prec. 72. Touch. 367.

3. It may be made in the first or in the third person; as, "I, A. B. of, &c., am held, &c. ;" or, "A. B. of, &c., is held, &c." Shep. Prec. 72. Touch. 367.

4. Any words in a writing, sealed and delivered, whereby a man doth prove and declare that he is indebted to another, will make a good obligation; as,—“I, A. B., owe to C. D. £20, to be paid at Easter next;" or, "I, A. B. have had of C. D. £20, of which there are 10 behind," or, "I owe him £10" or, "I, A. B. have had of C. D. £20,” or, “I, A. B. have borrowed of C. D. £20, to be paid, &c." or the like. Shep. Prec. 72. Touch. 368.

So, if one make a writing in the form of a statute,* which the party doth seal, and afterwards legally deliver, but it is not sealed by the king's and the mayor's seal according to the statute, although this be not a good statute, yet it may be a good obligation. Shep. Touch. 368.

If the obligation be made without the words heirs, executors, and administrators, this is a good obligation, and the executors and administrators, but not the heir, are bound by it. Shep. Touch. 369.

*The statute Merchant was a bond of record; acknowledged under the statute Acton Burnel, 11 Edw. I. and statute de mercatoribus, 13 Edw.I. stat. 3. before the clerk of the statutes merchant, and Lord Mayor of London, or chief magistrate of other cities and towns or boroughs, sealed with the seal of the debtor and the King. But these recognizances both of the statute merchant and of the statute staple under 27 Edw. III. c. 9. have long since fallen into total disuse, and the security by warrant of attorney is now taken in preference thereto.

And an obligation, sealed and delivered, is good, though it hath no date, or hath a false or impossible date; for the date is not of the substance of the deed; and the day of the delivery of a deed or obligation is the true day of the date, though there is no day set forth. Shep. Touch. 370. 2 Cr. 5. Noy 21, 85, 86. Hob. 249. Stiles 97. Cro. Jac. 136, 254. Yelv. 193. 1 Salk. 76.

5.—A single obligation may be to pay money, or to do any other thing that is lawful and possible, and such obligations are good; but if the obligation be to bind a man to do a thing unlawful or impossible, as to rob another, or go to Rome in three days, under a certain penalty, or the like, it is void. Shep. Pr. 72. Touch. 370, 372.

6.—The best form of the condition of an obligation will be hereafter shewn, but it may be in any other form and good enough; as if an obligation be made from A to B. of £20, and these words are subscribed, -now therefore, if the obligor pay £5 quarterly for four years, then it is agreed that the obligation shall be void, this is a good condition; and so in like cases. Shep. Pr. 73. Shep. Touch. 370.

7. The condition of an obligation may be to do any lawful or possible thing; as to pay money, deliver goods or cattle, acknowledge a statute, enter into an obligation, make a release, make an estate, surrender an estate, make reparations, for quiet enjoying, to save harmless, to defend a title, to perform covenants, to abide an award, to perform a will, to give so much land or money in legacy, to purchase lands, to appear in a court, to marry another, not to sue, not to meddle with an executorship, not to revoke a letter of attorney, not to be surety, not to play at cards or dice, or any such like thing, and such conditions are good. Shep. Pr. 73. Touch. 371.

So, a condition restraining a man from exercising a particular trade, or selling his goods, in a certain place, or within certain limits, if done fairly, and upon a good and lawful consideration, is good. 1 Bac. Abr. ti. Ob. (K.)

But if the condition be to restrain a man generally from

the exercise of his trade, this is against the public good, and therefore unlawful and void. Ibid.

So also when any other matter or thing to be done by the condition is unlawful, the condition is void, and in some cases the obligation also. Shep. Pr. 73. Shep. Touch. 371.

And all the instances of conditions against law in a proper sense, are reducible under one of these three heads:-1st. Either to do something that is malum in se, or malum prohibitum. Co. Lit. 206. 2dly. To omit the doing of something that is a duty. Palm. 172. Hob. 12. 3dly. To encourage such crimes and omissions. Fitz. Ob. 13. Bro. Ob. 34. Dyer 118. 1 Perc. Wms. 181.

Therefore, if one bind himself in an obligation to kill a man, burn a house, maintain a riot, or the like, this is malum in se, and void. Shep. Touch. 370.

Bonds entered into for any particular purposes, restrained or prohibited by the Statute Law, are void, as mala prohibita.

Thus all bonds with conditions for the enjoying spiritual livings contrary to the statute of 13 Eliz. c. 20, are void by the statute of 14 Eliz. c. 10. Shep. Pr. 73. Shep. Touch.

374.

So, if an obligation be made against the statute 23 Hen. VI. c. 10, "a statute against sheriffs letting their Bailiwick to farm," and which enacts that no sheriff or his officers shall take any obligation, by colour of their offices, of any person in their ward, but only to themselves, and in the name of their office, with condition with sureties sufficient, that the prisoner shall appear on the day in the writ; and all others taken in any other form shall be void. Shep. Pr. 73, 74. Shep. Touch. 374.

Also amongst many other bonds declared to be void by the Statute Law, are the following:

By statute 5 & 6 Ed. VI. c. 16, bonds which concern the buying and selling offices which relate to the administration of justice, the King's revenue, &c. are made void. By statute

13 Eliz. c. 5, bonds made to avoid the debt or duties of others are void. Bonds given for money lost by gaming are declared void by 16 Car. I. c. 7, 9 Ann c. 14. By statute 7 & 8 Will. III. c. 5, bonds given to procure any return of any member of Parliament, or any thing relating thereto. Likewise, by statute 12 Ann, sess. 2. c. 16., bonds upon usurious contracts are made void.

And such conditions as are unlawful, the law will always, and without any regard to circumstances, defeat; and therefore, as in Co. Lit. 206. a feoffment shall be absolute for an unlawful condition, but a bond void. Shep. Touch. 372. n. (5).

But where the matter or thing to be done by the condition is such a thing as in its nature is impossible to be done at the time of the making of the obligation, there the obligation shall nevertheless be good, and the condition only is void: as if the condition be to go to Rome in three days, or to be nonsuit in an action, or assure a piece of ground, when in truth there is no such action, or piece of ground; and the like. Shep. Pr. 73. Shep. Touch. 372.

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However, when the thing to be done by the condition is a thing possible at the time of the making the obligation, and after by matter ex post facto, by the act of God, the act of the law, or the act of the obligee, it is become impossible; in this case the obligation and the condition both are become void and therefore, if a man be bound with a condition that he shall appear the next term in such a court, and before the return-day the obligor dieth; hereby the obligation is saved.— So, if A. be bound to B. that J. S. shall marry Jane G. by such a day; and before that day the obligee marry with her, thus by his own act rendering it impossible for the other to marry her; hereby the obligation is discharged, and the obligee shall never take advantage of it. Shep. Touch. 373.

So also, when the matter or thing to be done by the condition is such a thing as in its nature is REPUGNANT to the estate; as that a feoffee of land shall not alien it; or that a tenant in tail shall not suffer a recovery of his land, or that