Moore et al. v. Allen et al. payment well and truly to be made, we bind ourselves, our heirs, etc., jointly and severally, firmly, by these presents. Sealed with our seals, and dated this the 18th day of March, A. D. 1846. "The condition of the above obligation is such, that whereas the said Richard M. Moore, sheriff as aforesaid, has levied a writ of alias pluries fieri facias, issued upon a judgment of the Claiborne circuit court, in favor of Lawrence, Reese, & Co. against Josiah Rundell and Sylvester C. Keyes, for the sum of $1,532.24, upon the following property, to wit, upon a stock of jewelry and other articles, a schedule of which is attached to said writ, as the property of the defendant, Sylvester C. Keyes; and upon lots, Nos. 4, 5, 6, and 7, in square No. 2, upper division of the town of Grand Gulf, and on negro slaves Harrison and Missouri, as the property of defendant, Josiah Rundell. And whereas, a doubt has arisen whether the right of said property is in the said defendants, Keyes and Rundell, or not. Now, if the said Allen and Thrasher shall indemnify the said Richard M. Moore, sheriff as aforesaid, against all damages which he may sustain in consequence of the seizure or sale of said property; and, moreover, shall pay and satisfy to any person or persons, claiming title to said property, all damages which such person or persons may sustain in consequence of such seizure or sale; then this obligation to be void, else to remain in full force and virtue. H. W. ALLen. [seal]. The declaration alleged that the judgment of Lawrence, Reese, & Co. was obtained in the Claiborne circuit court, June 4, 1841. That on March 24, 1842, said Keyes filed his petition in bankruptcy; and on December 12, 1842, he was discharged from all his debts. That after the discharge in bankruptcy, to wit, on February 3, 1844, he purchased said jewelry; that the same was not subject to said execution of Lawrence, Reese, & Co; and that by virtue of said seizure, he has sustained damage, and sues, etc. To the declaration of averments on said bond, the defendants demurred, and the court sustained the demurrer, but gave leave to plaintiff to amend his declaration; whereby the plaintiff Moore et al. v. Allen et al. amended his declaration at April term, 1848, by adding the following additional averments, to wit: To the amended declaration by additional averments, the defendants demurred; which demurrer is as follows, to wit, 1st. Because the bond does not sufficiently specify the jewelry, &c. levied on. 2d. It does not aver upon what property the levy was made. 3d. It does not show in what court the judgment was rendered. 4th. It is nudum pactum. 5th. That the bond is not sigued by plaintiff in execution. 6th. It does not show a sufficient cause. At the April term, 1849, of the Claiborne circuit court, the cause was argued on the foregoing demurrer; and the court sustained the demurrer, and gave judgment in favor of the defendants for their costs expended, &c. The plaintiff has prosecuted a writ of error to this court; and the correctness of the judgment of the circuit court, in sustaining the demurrer to the declaration, constitutes the only question for the consideration of this court. A. T. Ellett, for appellant. The bond, on which this action was founded, was taken under the statute which authorizes the sheriff, when he shall levy an execution on property, and a doubt shall arise whether the right of such property is in the defendant or not, to apply to the plaintiff, his attorney, or agent, for his bond, with good security, payable to the sheriff, conditioned to indemnify the sheriff, and also to pay and satisfy to any person claiming title to such property, all damages, &c., which bond is to be returned with the execution, and bars all right of action, by the person claiming such property against the sheriff, unless the obligors shall become insolvent. How. & Hutch. 631, 632; Ib. 900, 901. The plaintiff in error contends, that the present is a good bond under the statute. The first objection taken to the bond on the demurrer is, that it does not contain a list, or specification of the property levied on. This objection goes only to the want of certainty. But id certum est quod certum reddi potest, and the bond refers to a Moore et al. v. Allen et al. schedule of the property attached to the execution, and is thus rendered certain by a reference to another paper, which is definitely ascertained. A bond is not void, merely because it does not conform in all respects to the statute. It is absolutely void, only when the statute declares it void. Van Deusen v. Hayward, 17 Wend. 67; Ring v. Gibbs, 26 Ib. 502; United States v. Brown, Gilpin, 155; Morse v. Hodsdon, 5 Mass. 314; 2 Green, N. J. 486. Where the substance of the bond is prescribed by the statute, if it be so drawn as to include all the obligations imposed by the statute, and to allow every defence given by law, it will be valid, though slightly variant from the form prescribed. 3 Ham. 103; 2 Hawks, 167; 3 Monroe, 391; 1 Ham. 170; 2 Har. & Gill, 305; 2 Hawks, 93; 2 Bailey, 362; 2 Hall's Am. Law J. 456. Even under the statute, 23 Hen. 6, which declares that all bonds taken in any other form than that prescribed, shall be void, it is held, that such obligations as differ and vary from the form in words and circumstances only, are good, notwithstanding the statute. 1 Shep. Touch, 373, 374; Beawfage's case, 10 Coke, R. 99. Our statute (code 910, art. 6,) authorizes a forthcoming bond to be given by the person whose property is levied on. Yet in Coffee v. Planters Bank, 11 S. & M. 458, it was held, that a bond given by a different party from the one whose property was seized, was a good bond, the plaintiff not having moved to quash it. The court say, 66 we see no reason which will authorize us to say, that it was not binding on the signers." So, in Mc Comb v. Ellett, 8 S. & M. 518, an instrument without seals, and, therefore, not a bond at all, was held a good forthcoming bond under the statute, the plaintiff not having moved to quash it at the return term. A statute bond, which superadds conditions not authorized by the act, is only void for the surplus. 1 Brockenb. 177–195; 1 W. & S. 261; 3 Ib. 324; Dudley (Geo.), 66; 9 Pick. 504; Peters' C. C. R. 47; Ordinary v. Smith, 2 Green's N. J. R. 479. But if the recitals of the bond are insufficient, the amended declaration avers that it was given by the attorney of the plaintiffs in execution, with security. Moore et al. v. Allen et al. These averments are competent, and there is no rule of law excluding proof of them. The rule that excludes parol evidence to explain written instruments, is only directed against the admission of any other evidence of the language of the parties. The writing may be read by the light of surrounding circumstances. 1 Greenl. Evid. 399, ch. 15, §§ 277, 282. The circumstances in which the party is placed, or any collateral facts necessary to show the validity of the writing, or explain its operation, inay be proved. Ib. § 297. And recitals of facts may be contradicted or explained, unless they are of a nature to estop the party on other principles. § 285. So, the "reason and occasion" of signing a note may be shown by parol, though not admissible to explain the agreement. Tyrrell v. Hope, 2 Atk. 560. Patent ambiguities, it is true, cannot "be holpen by averment;" but this is not a case of patent ambiguity. There is nothing ambiguous, that is, of uncertain meaning, on the face of the bond. That it is competent to aver in the declaration, and show by proof the circumstances under which the bond was given, in order to establish the consideration, is held in Sewell v. Franklin, 2 Porter, 505. And in Willis & Conley v. Ives, 1 S. & M. 318, it is said, "it is a general rule, that wherever a contract or instrument does not of itself import a consideration, then the consideration on which it was founded must be averred in pleading." Where a deed expresses no consideration, the true consideration may be averred and proved. Cromwell's case, 2 Co. 70; Peacock v. Monk, 1'Ves., sen., 128; Shep. Touch. 222, 510; 8 Johus. 30; 15 Mass. 85; 1 Dev. & Bat. 466; Roberts on Frauds, 117, note 58. In fact, every sealed instrument imports a consideration, which, except under our statute, could not be impeached at law. 2 Kent, 464; 2 Black. Com. 446; 1 Bac. Ab. 111, 112; 7 T. R. 476; 10 Peters, 267. And if the consideration be assailed, it may be supported by parol proof. Hinde's Lessee v. Longworth, 11 Wheat. 199. Moore et al. v. Allen et al. It may be argued, that it appears by the face of the bond that both obligors signed as principals, and that it is not competent for the plaintiff to show that one signed as surety for the other, and that without a surety the bond is void. It is held in the case of Willis & Conley v. Ives, that where both obligors signed as principals, each was estopped from showing that he signed as surety. That is upon the principle, that what a man has admitted by writing under seal, he shall not be allowed to deny. But does that rule apply to the obligec? Is he estopped from showing that one was principal, and the other surety? There is no such principle of estoppel that can apply to him, and he is not forbidden to contradict the express recitals of the instrument, unless bound by a technical estoppel. 1 Greenl. Evid. § 285. But whether this bond was a good statutory bond or not, it is clear that it is perfectly good as a common law obligation. Bonds given to public officers for ease and favor, or extorted unlawfully colore officii, or conditioned to indemnify against a violation or neglect of duty, or upon any other unlawful consideration, are void. But that voluntary bonds, void under the statute on account of non-compliance with its provisions, are good as common law obligations, unless founded on some illegal consideration, or prohibited by some positive rule of law, is a well settled proposition. Sewall v. Franklin, 2 Porter, 493; Hooe v. Tebbs, 1 Munf. 500; Morse v. Hodsdon, 5 Mass. 314; Clap v. Cofran, 7 Ib. 98; 1 Saund. R. 161, note 1; Lampton v. Taylor, Litt. Sel. Cas. 273; Stratton v. Rowan, 2 Bibb, 199; Cobb v. Curtis, 4 Litt. R. 235; Stephenson v. Miller, 2 Litt. 206; Fant v. Wilson, 3 Monroe, 342; Hoy v. Rogers, 4 Ib. 225; Thompson v. Buckhannon, 2 J. J. Marsh. 418; Justices v. Smith, Ib. 473; Mc Cormick v. Young, 3 Ib. 182; Brown v. Miller, Ib. 437; 1 Gallison, 145-476; 5 Peters, 115; 10 Ib. 343; Mc Comb v. Ellett, 8 S. & M. 518. Although a bond, intended as a statute bond, is not good as such, it may be good at common law. Gathwright v. Callaway County, 10 Missouri, 663-666; Stephens v. Crawford, 3 Kelly, (Geo.) 499. |