in part and the illegal part can be eliminated from the rest. leaving a sufficient consideration, the bond may be enforced." 78 § 3501. Duress, fraud and mistake.-Like all other contracts bonds executed under duress are void or voidable." However, if several persons unite in the execution of a bond and a part sign under duress the bond will be binding upon those who did not execute under duress.8° Fraud affecting the execution of a bond usually renders it void.81 Any wilful misrepresentation of circumstances or concealment of material facts at the time a bond is executed, so that the surety is induced to enter into an agreement which he otherwise would not do, is such a fraud as will discharge him from liability thereon.82 But at law mere fraudulent representations affecting only the consideration whereby one is induced to execute a bond has been held insufficient as a defense, though relief might be obtained in a court of equity.83 A bond is not vitiated by a mere technical defect or clerical error such as the omission of a necessary word where such word may be understood from the context, or a mistake in the name of a party where it can be shown who was the party intended.84 § 3502. Statutory bonds and their validity.—Statutory bonds are bonds given pursuant to some statute. As a rule, such bonds to be good should conform to all the requirements of the statute under which given; but in many cases, it is held that although the form or language prescribed by the statute is not 80 Tucker v. State, 72 Ind. 242; Spaulding v. Crawford, 27 Tex. 155. 81Watriss v. Pierce. 32 N. H. 560; McHugh v. Schuylkill, 67 Pa. St. 391, 5 Am. Rep. 445; Tatum v. Tatum's Admr., 101 Va. 77, 43 S. E. 184. In Hyman v. Moore, 48 N. Car. 416, it was held that where a person is induced to sign a bond while in such an intoxicated condition that he did not know what he was about, the 87 strictly followed the bond is, nevertheless, a binding obligation.85 But if the statute expressly declares all bonds void which do not comply with its requirements, the bond will be void in case the statute has not been substantially or, perhaps, strictly followed.86 If all the conditions required by the statute are complied with together with conditions in excess of those so required, the bond is valid so far as it imposes obligations authorized by the statute, and the excessive stipulations may be rejected as surplusage. But where authority to take a bond is wholly derived from a statute, and is taken on conditions. other than those required by the statute or for a larger sum than so required it is void, provided the obligors have not voluntarily given the bond.ss Where a bond is given in conformity to an act that is unconstitutional, and the bond is without consideration it is consequently invalid. But a bond executed in pursuance of a statute is not necessarily void because the statute is afterward declared unconstitutional, as there may be a consideration therefor independent of the statute.00 While the requirements of the statute must be followed, a variance, to be fatal, must be material.91 88 89 § 3503. Common-law bonds and their validity.—Bonds. that are valid under the rules of the common law are called common-law bonds, and include such bonds as are sometimes voluntarily given when not required by law, or where they so far deviate from the requirements of a statute that they cannot be deemed to be statutory bonds. Thus a voluntary bond, 85 92 Whitsett v. Womack, 8 Ala. 466; Shuttleworth v. Levi, 76 Ky. 195; Power v. Graydon, 53 Pa. St. 198; James v. Langham, 29 Tex. 413. Byers v. State, 20 Ind. 47. 88 Stephens v. Crawford, 3 Ga. 499; Scotten v. State, 51 Ind. 52; State v. Wiley, 15 Iowa 155; People v. Johr, 22 Mich. 461; Matthews v. Lee, 25 Miss. 417; Boykin v. State, 50 Miss. 375; Riggs v. Miller, 34 Nebr. 666, 52 N. W. 567. 86 'Whitsett v. Womack, 8 Ala. 466; Ward V. Hubbard, 62 Tex. 559; United States v. Brown, Gilp. (U. S.) 155. Fed. Cas. No. 14663. Walker v. Chapman, 22 Ala. 116; Union Wharf v. Mussey, 48 Maine 307; Hall v. Cushing, 9 Pick. (Mass.) 395; Lowe v. Guthrie, 4 Okla. 287, 44 Pac 198. 89 90 Stevenson v. Morgan, 67 Nebr.. 207, 93 N. W. 180, 108 Am. St. 629. "Waterous Engine Works Co. v. Clinton, 110 Minn. 267, 125 N. W.. 269. 92 Williamson v. Woolf, 37 Ala. 298; Sheppard v. Collins, 12 Iowa 570; Johnson v. Weatherwax, 9 Kans. 75; Thompson v. Buckhannon, 2 J.. J. Marsh (Ky.) 416; State v. Har ney, 57 Miss. 863; Ordinary v. executed by competent parties and for a lawful purpose, not prohibited by law, and founded upon a sufficient consideration, is valid as a common-law bond.93 The same rules as to bonds which may be enforced as common-law bonds between individuals. do not fully apply to bonds executed to the state for the appearance of persons charged with crime, for bonds in criminal cases are purely statutory, while as between individuals they are not.** 3504. Construction-General rules.-The true rule for construction of contracts is to give effect to the intention of the parties, and, in arriving at such intention, all parts of the contract must be considered. The above rule of construction applies to bonds, and its application is most frequently made in the case of penal bonds which are entered into to secure the proper performance of some act. Such a bond, as has been seen, consists of three parts, the obligatory part, the recital, and the condition, and in construing such bond, all the parts must be considered together.95 Also where a bond is given to secure the performance of an agreement, and the bond recites a part, but not all, of the obligations of the agreement, it has been held that the liability on the bond will be limited to the recitals contained therein, the instrument not being incorporated in the bond by reference thereto.96 Where the provisions of a bond are not clear, the obligation should be construed in the light of all the circumstances surrounding the transaction, the object to be accomplished, the situation of the parties, the relations existing, and the evident intention of the parties in the execution of the bond. Statutory V. 97 "State v. Fraser, 165 Mo. 242, 65 95 People v. Morrison, 75 Mich. 30. 42 N. W. 531; Wilson v. Webber, 157 N. Y. 693, 51 N. E. 1094. 96 Heishon, 42 N. J. L. 15; Bank of 93 'Munter v. Rees, 61 Ala. 395; Archer v. Hart, 5 Fla. 234; Barnes v. Brookman, 107 Ill. 317; Duncan v. Pendleton County Court, 4 Ky. L. 829; Rubelman Hardware Co. v. Greve, 18 Mo. App. 6. Oregon R. & Nav. Co. v. Swinburne, 22 Ore. 574, 30 Pac. 322; Singer Mfg. Co. v. Hester, 6 Fed. 804, 2 McCrary (U. S.) 417. 97 Sachs v. Surety Co., 177 N. Y. 551, 69 N. E. 1130; Oregon R. & Nav. Co. v. Swinburne, 22 Ore. 574, 30 Pac. 322; Levy v. Goldsoll (Tex. Civ. App.), 131 S. W. 420; Eitscheid v. Baker, 112 Wis. 129, 88 N. W. 52. 98 bonds executed in the form prescribed by the statute must be construed as though the statute were written in them as respects the rights of principal and surety. And it has also been held that law and usage may be construed into a bond as fully as if it were made expressly a part of it.99 Where the intention of the parties is manifest from the instrument itself, all meaningless and contradictory words should be rejected and such words supplied as will give effect to the real meaning of the parties, but in doing so care should be exercised not to create a different intent from that which is manifest.1 Indorsements or memoranda made upon a bond at the time of its execution may be construed as a part thereof, where it is evident that the parties so intended. But it is held that a note or memorandum, made before signing, of the insertion of certain words is not a part of the bond. Where other papers or written instruments are referred to in a bond, and the language of the bond is such as to show an intention to make such instruments a part of the obligation, the bond and papers referred to should be read together and construed as a whole. It is well settled that sureties on a bond are only chargeable according to the strict terms of the bond, and upon these terms they have a right to stand. Their liability cannot be extended by implication.5 § 3505. Construction with respect to parties.-In order to ascertain the relative situation, rights, duties and liabilities of the 99 Crawford v. Ozark Ins. Co., 97 Ark. 549, 134 S. W. 951; Zellars v. National Surety Co., 210 Mo. 86, 108 S. W. 548; Chambers v. Cline, 60 W. Va. 588, 55 S. E. 999. O'Brien v. Murphy. 175 Mass. 1 Swain v. "Osborne V. Fulton, 1 Blackf. (Ind.) 233; Nichols v. Douglass, 8 Mo. 49. White v. Johns, 24 Minn. 387. 'People v. Clough, 16 Colo. App. 120, 63 Pac. 1066; New Britain v. New Britain Tel. Co., 74 Conn. 326, 50 Atl. 881; McCullough v. Moore, 111 Ill. App. 545; Graham v. Middleby, 185 Mass. 349, 70 N. E. 416; St. Paul Title & Trust Co. v. Sabin, 112 Wis. 105, 87 N. W. 1109. See also, Fidelity Trust Co. v. American Surety Co., 175 Fed. 200; In re Godshalk's Estate, 24 Pa. Super. Ct. 410. Oakland v. Proper, 1 Ont. 330: Bergevin v. Wood, 11 Cal. App. 643. 105 Pac. 935; Field v. Rawlings. 6 Ill. 581; Singer Mfg. Co. v. Allen, 6 parties to a bond, recourse must first be had to the exact language used to evidence the intention of the parties. Thus, if the language used imports a joint liability, it will be deemed a joint obligation, or if a several interest is expressly evidenced by the terms and conditions of the bond it will be deemed a several obligation. Also a bond will often be construed as joint or several, according to the interests of the parties appearing on the face of the instrument, if the words used are capable of such a construction; so intention and interest are of primary importance. Where by the terms of the bond the obligors "bind ourselves, our heirs, executors, and administrators, and each and every one of them," a joint and several obligation is created. An agent may bind his principal on a bond if the language of the bond shows his representative capacity and authority to act in the matter, and the intent to bind the person for whom he acts is manifest." But while the recitals and signature may show the agency, the agent may become personally liable.1o § 3506. Construction with respect to liability. It is a general rule that the obligor in a bond incurs the exact liability defined in the bond, and he will be relieved from such liability by performance of the conditions," nor will the express liability clearly set forth in the body of the bond be restricted by the recitals of an affidavit subsequently made. The meaning of words used will not be enlarged so as to impose a duty other than that which was obviously intended,12 although that which is clearly implied as intended under the law to be done will be 122 Mass. 467; American Trust Co. v. Louderback, 220 Pa. 197, 69 Atl. 673, 16 L. R. A. (N. S.) 775n. St. Louis, Alton & I. R. Co. v. Coultas, 33 Ill. 189; Boyd v. Kienzle, 46 Md. 294; Brinkerhoof v. Doremus. 10 N. J. L. 119; Green v. Banks, 24 Tex. 508. See where it is in singular but signed by more than one, Scheid v. Leibshultz, 51 Ind. 38, 41. 'People v. Breyfogle, 17 Cal. 504; St. Louis, Alton & I. R. Co. v. Coultas, 33 Ill. 189; Boyd v. Kienzle, 46 Md. 294; Lehigh County v. Gossler, 24 Pa. Super. Ct. 406. |