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1833.

INGLEBY

V.

SWIFT.

Goulburn Serjt., on the ground that from the agreement recited, it appeared to be the intention of the parties to limit the responsibility of each surety to 500l., obtained a rule nisi to reduce the verdict to that sum, contending that the case fell within the purview of the statute 8 & 9 W. 3. c. 11., and referring to Lord Arlington v. Mericke (a), Payler v. Homersham (b), Pearsall v. Summerset (c), and Sansom v. Bell (d).

Taddy Serjt. shewed cause.

This is not a case within

8 & 9 W. 3. That statute gives no authority for altering the penalty of a bond, or the verdict, but merely enacts that the judgment for the penalty shall stand as a security for the sum actually due. Now, the sum actually due in the present case, is the sum found by the verdict. And it could never have been the intention of the parties to limit the liability of each surety to 500l; for if so, the binding part of the instrument would not have specified 1000l., or it would have been expressly stipulated that the liability should be restricted to 500l. At all events, if such was the intention, it cannot be effected, for want of apt words to express it. In the cases referred to, general words in the condition of a bond were held to be restrained by particular limitations in the same condition; but no case can be found in which the courts have limited or altered the penalty or the binding part of the instrument.

Goulburn. The object of the statute 8 & 9 W. 3., as stated by Serjt. Williams in Gainsford v. Griffith (e), was, that the parties should, without recourse to a court of equity, pay the sum in conscience due, whatever may be the nominal amount of the penalty; otherwise, if the

(a) 2 Wms. Saund. 4th ed.

411.

(b) 4 M. S. 423.

(c) 4 Taunt. 593.

(d) 2 Campb. 39.
(e) 1 Wms. Saund. 51.

penalty

penalty were 20,000l., payment of the whole might be enforced at law, though the intention of the parties might not extend beyond 500l. Still, therefore, as in cases on contracts for liquidated damages, the question is, what was the intention. It is true, that the cases have, in general, turned on the language of the condition of the bond; but the construction, as to the amount of penalty, must depend on the same principles. Here, the parties must have contemplated a liability for something less than 1000/., otherwise the condition of the bond would have been altogether superfluous; and the recital of the agreement, that the sureties were to be liable to the extent of 500l., is conclusive to shew the intention of the parties. The argument on the part of the Plaintiff proves too much, and if acted on, would authorize the Plaintiff on a money bond to levy the penalty, instead of the sum actually due, as prescribed by the statute of Ann.

TINDAL C.J. The only question for us to determine is, What is the meaning of the condition of the bond? The bond is taken in the penal sum of 1000l., and the condition, after reciting a lease to Swift, is for the payment by Swift, of the rent reserved, and the performance of the covenants in that lease. It is obvious that the general intention of the obligee, in taking the bond, was to secure the payment of the rent, and the performance of the covenants contained in the indenture referred to; and it should be remembered, that conditions are attached to bonds for the benefit of obligors, the penalty being the sum which, by the bond, becomes due to the obligee. In some of the older cases it appears, that where a condition is impossible or contrary to law, an obligor can derive no benefit from it: it is for the obligor, therefore, so to word the condition as to exclude the possibility of any doubt arising upon it.

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1833.

INGLEBY

V.

SWIFT.

1833.

INGLEBY

V.

SWIFT.

The Defendant contends, that the agreement recited for Swift's providing sureties in the penalty of 500l., is virtually, an agreement that the sureties shall not be liable for more than 500l. each: but for aught that appears to the contrary, that might have been an agreement relating to some other transaction, for this bond is taken in the sum of 1000l., and if there is a mistake any where, why are we to say that it is in the penalty and not in the recital? Or even if it related to the same transaction, when we see that the agreement recited mentions a security for 500l., and the bond is taken for 1000l., how are we to say, that subsequently to the agreement the parties have not altered their mind? It seems, therefore, that the general purport of the instrument being to secure the rent and covenants in the indenture, the condition is not satisfied by payment of rent to the amount of 500l., where more is in arrear. Nothing would have been more easy than for the Defendants to have stipulated expressly, that they should not be liable for more than 500l. I am unable so to construe the condition as to say, that the Defendant, after entering into a bond for 1000l., is to cut it down to 500%. by the recital of a former agreement.

PARK J. There is no reason for saying the parties might not have agreed for a security to the amount of 500l., and, when they came to execute the bond, have consented that it should be increased to 1000l. As no decision has been cited exactly in point, it is more consistent with the justice of the case to give the amount of rent due, not exceeding 1000l.

GASELEE J. I have never entertained a particle of doubt on this case. The construction we put upon the bond is consistent with all the decisions; for in none of them have the courts altered the penalty of the bond.

If the sureties have been imposed upon, a court of equity will afford them relief; but the tenant would obtain none, because the rent is due from him, and this objection is merely formal.

may

be

ALDERSON J. I am of the same opinion. No doubt, general expressions in the condition of a bond restrained by particular recitals, but the Court cannot reduce the penalty by the recital of an agreement to execute a bond in another penalty, which bond does not appear to have been executed.

1833.

INGLEBY

V.

SWIFT.

Rule discharged.

CURLING V. JOHNSON and Another.

June II.

to commis-
sioners of

paving, drew
up a contract
which contract
for paving, of
Defendant, the
contractor,
was, by agree-
ment, to pay
the expense:

THE declaration stated, that Plaintiff, clerk to the Plaintiff, clerk commissioners for putting in execution a certain act of parliament, made and passed in the twenty-fifth year of the reign of George III., intituled "An act for better paving, cleansing, lighting and watching the streets, &c. of that part of the parish of St. Mary Magdalen, Bermondsey, in the county of Surry, called the waterside division," &c., in his, the said John Curling's, own person, complained of Defendants, who had been summoned to answer the said Plaintiff, clerk as aforesaid, of a plea of trespass on the case upon promises; for that whereas ecute the before and at the time of the making of the pro- refused to pay mise of the Defendants, thereinafter in that count men- Plaintiff's tioned, to wit, at, &c., the said commissioners pro- charges, as

Defendant offered to ex

contract, but

unreasonable;

Plaintiff refused to allow the contract to be executed until his charges were paid. Under an act authorising the commissioners to sue by their clerk, Held, that he could not sue as such clerk for these charges.

posed

1833.

CURLING

V.

JOHNSON.

posed and were desirous to cause to be done certain paviors' and masons' works thereinafter next mentioned, within the said division and limits in the said act mentioned, and certain materials to be provided in that behalf, and had published a notice of such their desire, and a certain tender, and certain proposals and conditions respecting such works, as follows; [here the proposed contract was set out, and concluded with the following condition ;]-"The contractor will be required to execute a separate contract and bond to the commissioners in the sum of 300l. for the due performance of the several works, and also to find two respectable persons, to be approved by the commissioners, who will enter into bonds in the sum of 150l. each, by way of security for the due performance of the contract; such contract and bonds to be prepared by the solicitor to the commissioners, at the expense of the contractor :" and thereupon, theretofore, to wit, on, &c. at, &c., in consideration of the premises, it was at the request of the Defendants agreed by and between the commissioners and the Defendants, that the commissioners should employ the Defendants to do and perform, and that the Defendants should do and perform the said works, and find the said materials in that behalf above mentioned, subject to the said terms and conditions, and at certain rates and prices then and there agreed upon between the commissioners and the Defendants; and in consideration thereof, and that the commissioners had then and there undertaken and promised the Defendants to perform the said tender, and proposals, and conditions, in all things on the part of the commissioners to be performed, the Defendants undertook and promised the commissioners to perform the same in all things on the part of the Defendants to be performed: and although the commissioners afterwards, to wit, on, &c. at, &c. for the purpose above mentioned, caused to be prepared

such

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