172 2. of a band (566, (5, Obligation is a word of his own cature of a large extent; but it is commonly taken, in the common law. ginal Semen taken a new ; and to give to earizma, 'esserts the same (5) Before we consider the oneration of a bood, it will be proper to advert to the two remaining species of derivative convegacices, namely, an arignment and a deleazance. As asizament is properly a transfer, or making over to another, the whole interest or estate which the assignor has in lands or tenements; but it is usually a, plied to the transfer of a term for years. As angoment of a term 1.ffers from a lease only in this, that by a lease, the lessor conveys an interest less than his own, reserving to himself a reversion whereas by an assignment, the assignee parts with his whole interest and property in the thing asegued, and hats the seignee in his place. 2 BL Com. 326,327. 4 Cru Dig. 160, 161. Although an instrument purports to be a lease, yet if it does, in effect, comprise all the estate of the grantor, it amounts to an assignment, and is not an under-lease; and a night of entry, or reservation of rent will not change the nature of the estate. Palmer v. Edwards, Dongi. 187. And, on the other hand, if it leaves any portion of the estate in the lessor, even a day, or an hour, or a minute, as a reversion, it is an under-lease; and therefore an instrement purporting to be an assignment for the reade of a term, reserving the last day or hour, wil operate as a lease of this description 3 Prest. Conv. 124, 125. The operative works of an assigament are, assign, transfer, and set over; but any other work which show the intention of the parties to make a complete transfer. will amount to an assignment. And there needs no consideration to support an assignment by a tenant for years, for the tenure and attendance, and the being subject to ferfeiture, as also the payment of rent, if there is any, are sufficient to vest the term in the assignee. 1 Mod. 263. But since the Statute of Frauds, an assignment must be by deed Every estate and interest in lands and tenements, and every present and certain estate or int rest in incorporeal hereditaments, as rents, alvowsons, &c. may be assigned: and even though the interest be future, as a term for years, to commence at a subsequent period, it may be assigned, for it is vested in presents, though it is only to take effect in futuro. Perk. sect. 91. But no right of entry, or re-entry, can be assigned, so that if a person be disseised, and assigns over his right to another, before he has entered on the disseisor, such assignment is void. Ante, 214 a. p. 85. With respect to the assignment of choses in action, see ante, p. 113, n. (K 3). Delaney v. Stoddart, 1 T. R. 26. Winch v. Kealey, I T. R. 619. 3T R. 340 Innes v. Dunlop, 8 T. R. 595. And note, that an assignment of a chose in action may be by parol as well as by deed. Howell v. Mac Ivers, 4 T. R. 690. Heath v. Hall, 4 Taunt. 326. With respect to the distinctions as to when the assignee is bound by the covenants of the assignor, and when not, see ante, p. 330, 331, n. (G 3). That an assignee is liable for rent only, wale he continues in possession under the assignment see Staines v. for a bond containing a penalty, with condition for pay-. ment of money, or to do or suffer some act or thimg, &c Morris, 1 Ves. & B. 11; and that he is not guilty of a fraud, if he assigns over his interest to whom he pleases, with a view to get rid of a lease, although such person neither takes actual possession, or receives the lease, see Taylor v. Shum, 1 Bos. & P 21. As to the nature and operation of a defeazance, see ante, 236 b. 237 a. p. 122, 123, and the notes there. Et vid. 2 Prest. Conv. 166, 167 139. 203. A bond or obligation is a deed whereby the obliger binds or obliges himself, his heirs, executors, and administrators, to pay a certain sum of money to the obligee, at a particular day. If this be all, the bond is called a simple one, simplex obligatio. But there is generally a condition added, that if the obligor does some act, the obligation shall be veid, or else shall remain in full foree; as payment of rent, performance of covenants in a deed, or repayment of a principal sum of money, borrowed of the obligee, with interest; which principal sum is usually one half of the penal sum specified in the bond. 2 Bl. Com. 340. There are no technical words necessary to a bond, Cro. Eliz. 561. 729, 886; and if there be an evident mistake in the word expressing the sum in which the party is intended to be bound; as if it be for threty pounds, instead of thirty pounds; it will be so construed as to answer the intention of the parties. Cro. Jac. 203. 208. 607. Cromwell v. Grumsden, I Ld Raym. 325. Et vid. Waugh v. Bussell, 1 Marsh. 311. So any words by which the intention of the parties can be discovered, are sufficient to make a condition of a bond: for if the words, though improper, should be construed void, and not a condition, then the obligation would be single, and of force against the grantor, although he had performed the condition of it according to the intention of the parties: and the condition being for the benefit of the obligor, shall be construed favourably. Butler v. Wigge, 1 Saund. 66. And the extent of the condition of an indemnity bond may be restrained by the recitals, though the words of the condition import a larger liability than the recitals contemplate. Pearsall v. Summerset, 4 Taunt. 593. With respect to impossible or void conditions, the following distinction has been taken : that where the condition is underwritten or indorsed, that is only void, and the obligation is single; but where the condition is part of the lien itself, and incorporated there with (as in a recognizance by bail), if the condition be impossible, the obliga. tion is void. 1 Saund. 66 n. Pullerton v. Agnus, 1 Salk. 172. Ante, 206 a. b. p. 21, 22. Where the condition of a bond is entire, and the whole is against law, it is void. But when the condition consists of several different parts, and some of them are lawful, and the others not, it is good for so much as is lawful, and void for the rest. Ibid. Et vid. ante, p. 24, 25, n. (P), and the cases there cited. When the condition of a bond is not performed, it becomes forfeited, or absolute at law; and is a charge on the personal estate and chattels real of the obligor, but not on his freehold lands; and therefore any settlement or disposition, which he makes in his life-time, of his lands, whether voluntary or not, will be good against bond creditors. For a bond being no lien on lands in the hands of the obligor, much less can it be so, when they are given away to a stranger. Parflow v. Weedon, 1 Ab. Eq. 149. 4 Cru. Dig. 168. If the obligor in a bond binds himself, without his heirs, executors, and administrators, the executors and administrators are bound, but not the heir Shep. T. 369. But if he binds himself and his heirs, it will be alien on his heir, who, in default of personal assets, will be bound to discharge it, provided he has real assets of the obligor by descent: so that a bond is said to be a collateral, though not a direct charge on lands. But, properly speaking, it is not an in and a bill is most commonly taken for a single bond without condition. cumbrance upon land; for it does not follow the land like a recogni zance and a judgment; and even if the heir at law aliens the land, the obligee in the bond, by which the heir is bound, can have his remedy only against the person of the heir, to the a nount of the value of the land, stat. 3 W. & M. c. 14 9 5; but he cannot follow the land when it is in the possession of a bona fide purchaser. Bull. N. P. 175. By stat. 3 W. & M. c. 14. s. 2. ail devises of lands are fraudulent and void, as against bond creditors, who may sue the heirs of the obligor, and alse bis devisees jointly. An estate in reversion is within this act; and so is a devise of the reversion by the heir of the obligor; and in such case the land: devised are liable. Kinaston v. Clarke, 2 Atk. 204. With respect to what shall be assets for payment of bord debts, see ante, p. 152. n. (R). On the forfeiture of a bond, or its becoming single, the whole penalty was formerly recoverable at law; but here the courts of equity interposed, and would not permit a man to take more than in conscience he ought; viz. his principal, interest, and expenses, in case the forfeiture accrued by nonpayment of money borrowed; the damages sustained upon non-performance of covenants; and the like. And a similar practice having gained some footing in the courts of law, the stat. 4 & 5 And. c. 16, enacted, that, in case of a bond, conditioned for the payment of money, the payment or tender of the principal sum due, with interest and costs, even though the bond be forfeited, and a suit commenced thereon, shall be a full satisfaction and discharge. In general there can be no remedy at law beyond the penalty, for a man can have no more than his debt; and the penalty is the utmost of his debt. Wilde v. Clarkson, 6 T. R. 303. Shutt v. Proctor, 2 Marsh. 226. Et vid MClure v. Dunkin, 1 East. 136, in which it was determined, that in an action on a judgment recovered on a bond, interest might be recovered in damages beyond the penalty; but Lord Kenyon admitted, that if the action had been upon the bond, it would have been otherwise. And where the obligee is plaintiff, equity in general will not carry the debt beyond the penalty; he having made himself the judge of his own recompense. See Hale v. Thomas, 1 Vern. 360, Anon. 1 Salk. 154. Steward v. Rumball, 2 Vern. 509. Galway Corporation v. Russell, 2 Bro. P. C. 275. Bromley v. Goodere, 1 Atk. 75-80. Tew v. Earl of Winterton, 8 Bro. C. C. 489. Knight v. Maclean, 3 Bro. C. C. 496. Grosvenor v. Cook, Dick. 305. Gibson v. Egerton, Dick. 408. Kettleby v. Kettleby. Dick. 514. Lloyd v. Hatchet, 2 Anstr. 525. Sharp v. Earl of Scarborough, 3 Ves. 557. Mackworth v. Thomas, 4 Ves. 329. But it is otherwise where the obligee is defendant; for then the maxim applies, that he who will have equity must do equity. 1 Eq. Ab. 92, pl, 7. Hale v. Thomas, supra. And equity will, under special circumstances, carry a debt beyond the penalty, as where a man is kept out of his money y an injunction, or is prevented from going on at law, Dural v. Terry, Show. P. C. 15. Hale v. Thomas, supra; er where an advantage is made of money, Lord Dunsany v. Plunkett, 2 Bro. P. C. 251; or where a bond is only taken as a collateral security, Kirtane v. Blake, 2 Bro. P. C. 333; or where the recovery of the debt is delayed by the obligor, Pulteney v. Warren, 6 Ves. 192; or there are some other special circumstances. Clarke v. Seaton, 6 Ves 416. Bonds being choses in action, are assignable in equity But the assignee takes them, subject to all the obligee's equity. Coles v. Jones, 2 Vern. 692. Tarton v. Benson, 2 Vern 765. But time and circumstances may strengthen the case of an assignee. Hill v. Caillovel, 1 Ves. 122. As to the presumption of satisfaction of a bond from length of time, see ante, vol. 1. p. 13. n. (E). A recognizance is an obligation of record, which a man enters info, before some court of record, or magistrate duly authorized, (Bro. Abr. tit. Recognizance, 24), with condition to do some particular act; as to appear at the next assizes, to keep the peace, to pay a sum of money, or the like. It is in most respects similar to a bond, the difference being chiefly, that the bond is the creation of a new debt or obligation: whereas a recognizance is the acknowledgment upon record of a former debt: the form whereof is." that A. B. doth acknowledge to owe to our lord the king, or to C. D the sum of ten pounds," with condition to be void on performance of the thing stipulated. This being either certified to, or taken by the officer of some court, it is witnessed only by the officer of that court, and not by the party's seal, so that it is not in strict propriety, a deed, though the effects of it are greater than those of a bond, being allowed a priority in payment. 2 Bl. Com. 341. A recognizance is a lien upon all the lands which the cognizor has at the time he acknowledges it, and also upon all those which he atterwards acquires; so that no alienation by the cognizor will prevent the cognizee from extending the land. And where a reversion expectant on an estate tail falls into possession, it then becomes liable to the recognizances, not only of the original donor, but also of all the intermediate heirs who were entitled to such reversion, because it is a direct lien on lands, and differs in that respect from a bond. Ante, p. 152. n. (R). But by the statute 29 Cha. 2. c. 3, it is enacted, that no recognizance shall bind lands in the hands of bona fide purchasers, but from the time of the inrollment. Et vid. 8 Geo. 1. c. 25 There are two other kinds of recognizances of a private sort, which are said to be in the nature of a statute merchant and statute staple, as to which, see post, Book 111. Chap. XI. Of Execution.-Ed.] (570) * CHAP. XLIII.* SAME SUBJECT. OF CONVEYANCES UNDER THE STATUTE OF USES, &e. 272 b. NOPA, an use is a trust or confidence reposed in some Definition of an use other, which is not issuing out of the land, but as a thing collateral, annexed in privity to the estate of the laud, at common law. Pl. Com 352 b. in 349 b. Lib. 1. fol. 121, Lib. 2. fol. 8. 78. Delamere's case, and and to the person touching the land, scilicet, that cesty que use shall take the profit, and that the terre-tenant shall make an estate according to his direction. So as cesty que use nad neither jus in re, nor jus ad rem, but Lib. 7. fol. 13. & 34. only a confidence and trust, for which he had no remedy by the common law, but for breach of trust his remedy was only by subpoena in Chancery (A). (A) We purpose, in this note, to consider the doctrine of uses under three general heads, viz. 1st. With respect to the origin and nature. of uses before the stat 27 H. 8. c. 10.; 2dly. Of uses since that statute; and, 3dly. Of the rules applicable to limitations of uses since the statute. The different kinds of conveyances derived from the statute of uses, and the doctrine relating to uses which are not executed by the statute, and to trusts, will be explained in the subsequent notes to this chapter. 1st. With respect to the origin and nature of uses before the stat. 27 H. 8. c. 10. The original simplicity of the common law admitted of no immediate estate in lands, which was not elothed with the legal seisin and possession thereof. But, in process of time, a right to the rents and profits of lands, whereof another person had the legal seisin and possession, was introduced; and, though not recognized for a long time by the courts of common law, war, notwithstanding, supported by the court of The introducchancery, and became well known by the name of a use. tion of this novelty, though, at first, it appears to have been but a trivial innovation, has, in its progress, produced a revolution in the system of real property, and given rise to a mode of transferring land very different from that which the old law had established. A use was created in this |