What Choke was talking about was a bond with a condition. This appears from the case itself where his remark was made as an illustration, and so it was understood.79 At the present day a bond with a condition to convey before a certain day would be regarded as in substance the equivalent of a covenant to pay on or after the day the penal sum of the bond (for which the law would substitute appropriate damages) if a conveyance was not made before the day. That does not represent the early understanding of such an instrument. The words of a bond, which are still used, acknowledging an immediate indebtedness, and adding a proviso in which case the instrument is to become void, had a literal meaning for our ancestors. "A specialty debt was the grant by deed of an immediate right, which must subsist until either the deed was cancelled or there was a reconveyance by a deed of release." 80 It has been frequently pointed out that a debt was not regarded in our early law as a contractual right but a property right, and a deed creating debt was not looked upon, as it is to-day, as a promise to pay money, but as a grant or conveyance of a sum of the grantor's money to the grantee.81 Accordingly a bond was closely analogous to a mortgage, - a conveyance with a provision of defeasance attached. If the condition was or became impossible there remained an absolute debt created by the bond.82
77 In Mayne's Case, 5 Coke, 20 b, 21 a, this passage is literally translated from the Year Book, and it is to Coke, probably, that the later currency of the citation is due.
78In 1 Rolle's Ab. 447, 448, under the title "Condition," this and several other similar cases are put. See also 5 Vino's Ab. 224.
79 This is evident, e. g.t from Rolle's classification of the authority under "Condition." See also, infra, Sec. 1310, n. 84.
80 9 Harv. L. Rev. 66, by Professor Ames.
81 Supra, Sec. 11, 1820. See also Parol Contracts prior to Assumpsit, by Professor Ames, 8 Harv. L. Rev. 252; Pollock & Maitland, Hist. Eng. Law (2d ed.), ii. 205; Langdell, Summary of Contracts, Sec. 100.
82 2 Vynior's Case, 8 Coke, 81 b, Choke's idea seems to have been that when the obligor of the bond sold the property, the condition became at that moment impossible of performance. There was, therefore, at that moment, by virtue of the bond itself, an absolute indebtedness, and this indebtedness, having once become absolute, could not subsequently be qualified. The condition could not be temporarily in abeyance.