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409, 412, 414, June to September, 1894. But the fact that a corporation has not adopted a corporate seal will not affect the validity of its execution of a bond in which it is principal or surety, provided some form of seal be added to its signature. A corporation may make and use any seal in its discretion in the same manner as a private individual. L, 525, July, 1886.

545. Where all the subscribing witnesses have not witnessed all the signatures, it should be indicated on the bond by what witnesses the several signatures were witnessed. 37, 146, December, 1889.

546. Where a corporation is principal in a bond given to the United States, its full legal corporate name should be expressed. Thus where the laws of the State in which such a corporation was created required that the name of a corporation should always include the name of the city or county in which it was formed, and a corporation obligor had been incorporated as "The *** Company of Baltimore City," held that the bond was incomplete unless this addition was set forth, and the instrument executed accordingly. 58, 147, February, 1893.

547. Where a corporation is named as principal in a bond, its corporate name and seal (if it has one) should be affixed by the officer having authority to do so. LV, 686, June, 1888.

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548. Obligations incurred by sureties are usually considered debts of law merely, and, as a rule, are paid only when enforced by law. bond, therefore, should not be accepted where suit cannot be successfully brought upon it against the sureties, whose contract, on the face of the instrument, must thus be clearly valid and binding. 56, 412, November, 1892.

549. A bond cannot be extended beyond the period of the original obligation so as to continue to bind the sureties, without their consent. XXX, 270, April, 1870. Nor can an expired bond be revived so as to bind the sureties without their consent. XXXI, 135, January, 1871. The Secretary of War (or President) has no power to release the sureties in an official bond from their liability to the United States." XLI, 169, April, 1878; Card 1999, January, 1896. A neglect by the Government to institute suit on a bond does not discharge the sureties; laches not being in such cases imputable to the United States. XXX, 270, supra.

550. The law of the place at which a contract is made governs as to its interpretation, except where the contract is to be performed elsewhere, in which case the law that governs in this respect is the law of the place of performance. An official bond, made to the United

Murfree on Official Bonds, § 253.

27 Opins. At. Gen., 62.

U. S. v. Kirkpatrick, 9 Wheaton, 720.

States, wherever actually signed, is-as has been held by the Supreme Court-a contract made and to be performed at Washington; and by the laws of the District of Columbia the contract of a married woman as surety is not binding. LII, 662, October, 1887. Moreover, it is not the practice of the War Department to accept a feme corert as a surety, and before a female surety will be accepted she is required to make oath that she is single in addition to justifying as required of other sureties. 64, 335, April, 1894; Cards 1019, February, 1895; 1262, April, 1895; 2204, April, 1896; 2360, June, 1896; 2990, March, 1897; 4623, July, 1898.

551. The affidavit of justification of a surety should be dated, so that it may appear when he was worth the amount specified. 30, 233, February, 1889. The names of the sureties in the justifications should be identical with those inserted in the body of the bond. Their names should not be omitted to be recited in the bond with the name of the principal. 64, 327, April, 1894.

552. A captain of the Commissary Department having given bond in a penalty of $12,000, one of his sureties deceased. Par. 678, A. R. (572 of 1895; 651 of 1901), prescribes that the sureties to bonds given by disbursing officers shall be bound jointly and severally. The officer offered a new bond with one surety in a penalty of $6,000. Held that such security would not be legally sufficient, but that a new joint and several bond in the penalty of $12,000 would be required. 62, 351, November, 1893.

553. The affidavit of justification should be taken before some officer, like a notary public, having authority to administer oaths for general purposes and whose official character is authenticated by his seal. 38, 412, February, 1890; 61, 395, September, 1893; 63, 117, January, 1894; 64, 157, 223, March, 1894; 65, 192, June, 1894. But as the justification is no part of the bond, and the administration of the oath by an official not competent to administer it does not affect the validity of the bond, the irregularity of the justification, where there is nothing to show that the oath was not taken in good faith by the surety, may be waived by the Secretary of War, and in practice it is now (May, 1893) waived, and the bond accepted if otherwise valid. 59, 498, May, 1893; 62, 367, November, 1893; Cards 28. February, 1895; 78, July, 1894; 372, September, 1894.

554. One of two (or several) sureties cannot withdraw independently from his obligation; and if allowed to do so by the obligee, the other surety (or sureties) will be released as to him 37, 267, December, 1889.

1Cox and Dick v. U. S., 6 Peters, 172; Duncan v. U. S., 7 Peters, 435.

2 Under section 19 of act of Congress of May 28, 1896 (29 Stats., 184), United States commissioners and ail clerks of United States courts are authorized to administer oaths generally. (3 Comp. Dec., 65.)

But the Secretary of War is not empowered to release the sureties on a disbursing officer's bond. Card 667, November, 1894.

555. If after the execution of a bond a material change be made in the name or description of the principal, by erasure, interlineation, or otherwise, without the assent of the sureties or a surety, even though such change be made to correct a mistake, the surety or sureties not consenting will be released. In a case of such an alteration, recommended that a new bond be required. 35, 283, September, 1889; 57, 41, December, 1892; 58, 400, March, 1893. Similarly held, where the name of one of two sureties was erased and a new surety was substituted without the consent of the remaining surety, and recommended that the written assent of the latter to the erasure and substitution be obtained. Card 1262, May, 1895.

556. The giving of a new bond by a disbursing officer--both the old and the new bonds being conditioned to become void if he should henceforth during his holding and remaining in said office carefully discharge the duties" of said office, . ., the office of commissary of subsistence with the rank of Major-would operate to divide the responsibility as to future transactions between the old and the new sureties but it would not release the old sureties. Cards 667 and 674, November, 1894; 733, December, 1894.

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557. The official bond of a disbursing officer being in terms limited to the office he held at the time he gave it, becomes inoperative upon the promotion of such officer to a higher grade. He thus enters upon a new office and a new bond is required. The old bond remains, however, a valid obligation to cover any defaults which may subsequently be found to have occurred between the dates of its execution and the date of the officer's promotion. Card 1999, June, 1896.

558. Where certain disbursing officers-commissaries of subsistence—were promoted during a recess of the Senate, received their letters of appointment, accepted and qualified thereunder, held, that by so doing they ceased to hold their old offices and became invested with the new offices (the terms of which were limited to the end of the next session of Congress), and that therefore under Sec. 1191, Rev. Sts., and A. R. 571 (650 of 1901), new bonds should be given. And further

Brandt on Suretyship and Guaranty, second edition, §§ 380, 381, 385.

2 See Digest Dec. Second Comp., Vol. 3, § 1356; American and English Ency. of Law, Vol. 24, p. 877; 5 Comp. Dec., 918.

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The form of official bond authorized by the Secretary of War, Dec. 14, 1895, was conditioned that the officer should at all times henceforth during his holding and remaining in said office, until a new official bond in his case shall be approved by the Secretary of War, carefully," &c. (Card 1769); and the form authorized Dec. 31, 1900, is conditioned that if the officer "shall and do at all times during his holding and remaining in said office, from and including the date of approval of this bond by the Secretary of War thenceforth until the date of approval by the Secretary of War of a new official bond in his case, carefully," &c. (Card 9482.)

held, that after the appointment, confirmation and commission of these officers new bonds would again be necessary. Card 3689, November, 1897.

559. Where an officer of the line was appointed captain and commissary of subsistence during a recess of the Senate, held, that in view of the provisions of Sec. 1191, Rev. Sts., and A. R. 571, he should furnish the bond required before entering upon his duties under such appointment whether or not he had resigned his line commission. Card 2775, November, 1896.

560. An officer of the subsistence department (regular establishment) was appointed chief commissary with rank of lieutenant colonel in the volunteer army and gave the prescribed bond. While serving in the latter capacity he was promoted in the subsistence department of the regular establishment. Id, that it was not necessary to require of him a bond on account of such promotion until it was proposed to place him on duty in the office resulting therefrom. Card 4341, July, 1898.

BOND- Of Contractor or Bidder.

561. The general rule that bonds given to the United States should be under formal seal, applies with particular force to contractors` bonds. XXVIII, 680, June, 1869.

562. Where a contractor offered a bond, subscribed, as sureties, by his two daughters, whose ages, as well as pecuniary relations to the obligor, were not known or stated, deised that to accept such a bond would be a bad precedent. XXXIX, 518, April, 1878,

563. A bond for the faithful performance of a contract will not cover material modifications thereof, in the form of a supplemental agreement or otherwise, unless the sureties formally assent to the Card 1244, April, 1895. And recommended that such assent be obtained. Cards 858, January, 1895; 966, Fbruary, 1895; 2093, March, 1896; 2705, October, 1896; 3462, August, 1897.

same.

564. A bond was executed on a certain date, and it was recited therein that the principal had on a subsequent date entered into the contract for the due performance of which the bond was given. The fact that the bond was executed before the contract was, is immaterial, but the recital is a part of the means of identifying the bond and should not be contradictory. Recommended in the particular case that to 1. S. e. Kirkpatrick, 9 Wheat., 720; 2 Opins. At. Gen., 336; 4 id., 30. But see, the new form of bond, the condition of which covers both offices, until the approval of a new bond (Card 10166, April, 1901).

now,

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A regulation to this effect was prescribed in G. O. 10, Hdqrs. of Army, 1879– republished and amended in G. O. 72 of 1879 and 40 of 1880. And see the same orders for general regulations in regard to bonds of contractors and bidders; also paragraphs 515-578, A. R. of 1895 (593-657 of 1901).

avoid in the event of a suit on the bond the necessity of resorting to outside evidence to identify the contract, a new bond be required, the latter to refer to the contract as one which will be entered into. Cards 2765, November, 1896; 3053, April, 1897; 3164, April, 1897; 3640, November, 1897.

565. Where the sureties to the bond of a contractor who had failed to perform his contract applied to be discharged from their obligation on the ground that they had been induced to enter into the bond by false representations made to them by the contractor, held that the Secretary of War had no authority, upon such or other ground, to release sureties who had become legally liable to the United States.1 XXXVII, 275, January, 1876.

566. A contractor for "personal services" is not in general required to give a bond. XXXVIII, 238, August, 1876.

567. Held, in view of the provision on the subject of the act of April 10, 1878, it was proper to require that bidders for contracts, from whom bonds were required, should properly bind themselves not to withdraw their bids within sixty days from the date of the opening of the bids. In the great majority of cases, indeed, bids will be required to be kept open but for a brief period, since the contract will generally be awarded at once or in a few days. Cases, however, may occur where, owing to questions raised as to the legality or regularity of bids, the competency of bidders, &c., a considerable delay may be incurred before the decision of the proper superior can be obtained or the difficulty be otherwise removed. It was no doubt for cases of this nature that the provision in regard to time was intended to provide. XXXIX, 628, August, 1878.

568. Under the act of March 3, 1883, c. 120, a bidder whose bid has been accepted, is required, in accordance with the terms of his guaranty, upon notice to him of the acceptance, to enter into contract and furnish bond for the proper fulfillment of its stipulations; but if such bond should not be given, and a contract should be entered into with some other person, such contract is not required, by the statute, to be accompanied by a bond. 60, 285, July, 1893.

569. The purpose of a bidder's guaranty is to furnish sufficient security that the bidder will, if his bid be accepted, enter into contract as prescribed. But the direct object is to enable the government to collect the difference between the bidder's bid and the amount the government would have to pay some one else for the supplies or work in case the bidder should not enter into contract according to his bid. The guaranty cannot be used to force him to enter into his contract:

1See 7 Opins. At. Gen., 62; and compare § 926, post.

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