of making it, and afterwards becomes impoſſible by the act of God, the act of law, or the act of the obligee himſelf, there the penalty of the obligation is ſaved: for no prudence or foreſight of the obligor could guard againſt ſuch a contingency[1]. On the forfeiture of a bond, or it's becoming ſingle, the whole penalty was recoverable at law: but here the courts of equity interpoſed, and would not permit a man to take more than in conſcience he ought; viz. his principal, intereſt, and expenſes, in caſe the forfeiture accrued by non-payment of money borrowed; the damages ſuſtained, upon non performance of covenants: and the like. And the ſtatute 4 & 5 Ann. c. 16. hath alſo enacted, in the ſame ſpirit of equity, that in caſe of a bond, conditioned for the payment of money, the payment or tender of the principal ſum due, with intereſt, and coſts, even though the bond be forfeited and a ſuit commenced thereon, ſhall be a full ſatisfaction and diſcharge.
2. A recognizance is an obligation of record, which a man enters into before ſome court of record or magiſtrate duly authorized[2], with condition to do ſome particular act; as to appear at the aſſiſes, to keep the peace, to pay a debt, or the like. It is in moſt reſpects like another bond; the difference being chiefly this; that the bond is the creation of a freſh debt or obligation de novo, the recognizance is an acknowlegement of a former debt, upon record; the form, whereof is, "that A. B. doth acknowlege to owe to our lord the king, to the plaintiff, to C. D. or the like, the ſum of ten pounds," with condition to be void on performance of the thing ſtipulated: in which caſe the king, the plaintiff, C. D. &c, is called the cognizee, "is cui cognoſcitur;" as he that enters into the recognizance is called the cognizor, "is qui cognoſcit." This, being either certified to, or taken, by the officer of ſome court, is witneſſed only by the record of that court, and not by the party's ſeal: ſo that it is not in ſtrict propriety a deed, though the effects of it are greater than a common obligation; being allowed a priority in point of payment,
