Bonds were, however, and still are given to secure performance of a
variety of matters other than the payment of a sum of money at a fixed
date. They may be given and are given, for instance, to guarantee the
fidelity of a clerk, of a rent collector, or of a person in an office of
public trust, or to secure that an intended husband will settle a sum on
his wife in the event of her surviving him, or that a building contract
shall be carried out, or that a rival business shall not be carried on
by the obligor except within certain limits of time and space. The same
object can often be attained--and more conveniently attained--by a
covenant than by bond, and covenants have in the practice of
conveyancers largely superseded bonds, but there are cases where
security by bond is still preferable to security by covenant. Thus under
a bond to secure an annuity, if the obligor makes default, judgment may
be entered for the penalty and stand as security for the future payments
without the necessity of bringing a fresh action for each payment. In
cases of bonds with special conditions, such as those instanced above,
the remedy of the obligee for breach of the condition is prescribed by
an act of 1696, the procedure under which is preserved by the Judicature
Act (O. xxii. R. 1, O. xiii. R. 14). The obligee assigns the particular
breaches of which he complains, damages in respect of such breaches are
assessed, and, on payment into court by the obligor of the amount of
such damages, the court enters a stay of execution. A difficulty which
has much exercised and still exercises the courts is to determine, in
these cases of special conditions, whether the sum for which the bond is
given is a true penalty or only liquidated damages. There is nothing to
prevent the parties to a bond from agreeing the damages for a breach,
and if they have done so, the court will not interfere, as it will in
the case of a penalty. The leading case on the subject is _Kemble_ v.
_Farren_ (1829; 6 Bing. 148).
Bonds given to secure the doing of anything which is contrary to the
policy of the law are void. Such, for instance, is a bond given to a
woman for future cohabitation (as distinguished from past cohabitation),
or a marriage brocage bond, that is, a bond given to procure a marriage
between parties. (See the matrimonial agency case, _Hermann_ v.
_Charlesworth_, 1905, 2 K.B. 123). It was not without design that
Shakespeare laid the scene of Shylock's suit on Antonio's bond in a
Venetian court; the bond would have had short shrift in an English
court.
_Post Obit Bonds._--A post obit bond is one given by an expectant heir
or legatee, payable on or after the death of the person from whom the
obligor has expectations. Such a bond, if the obligee has exacted
unconscionable terms, may be set aside.
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