Definition
A counter bond is a bond of indemnity given by one party to protect another against loss or liability arising from a prior bond or surety obligation. In practical terms, when a principal has already provided a bond — typically to secure a court proceeding, a debt, or a contractual obligation — a counter bond is the instrument by which that principal, or a third party, undertakes to hold the original surety harmless. It runs against the surety, not in favor of the obligee, and its essential purpose is to shift the risk of loss back to the party who created the underlying liability in the first place.
The term appears most frequently in two contexts:
1. Suretyship and indemnity: A counter bond accompanies or follows a primary bond, indemnifying the surety who issued that bond against claims made upon it. If the surety is compelled to pay, the counter bond obligates the principal to reimburse.
2. Old procedural practice: In early common law courts, a counter bond was used to discharge attachments or injunctions by substituting security. A defendant, for example, might offer a counter bond to obtain release of attached property, undertaking to satisfy any judgment that might follow.
Why It Matters in Research
Researchers working in historical sources will encounter "counter bond" most often in equity and common law procedural contexts where it functioned as a mechanism to dissolve provisional remedies — attachments, sequestrations, or injunctions — by substituting security. The term is sparse in modern American legal usage; contemporary practice has largely absorbed its function into the language of indemnity agreements, surety bonds, and bonds to dissolve attachment. Do not assume that a modern bond described as an "indemnity bond" or a "release bond" is the same instrument, though the functional overlap is significant.
The procedural context matters for corpus research. In older reporters and equity records, a counter bond appears in the machinery of provisional relief, not in the substantive law of contracts or suretyship. Searching only treatises on suretyship may miss the richest historical sources, which are found in procedure manuals, chancery records, and early American practice guides.
The term also appears in admiralty and maritime contexts — particularly in proceedings in rem — where a claimant might post a counter bond or counter security to obtain release of a vessel from arrest. Researchers tracing maritime sources should note this use separately from the general indemnity meaning.
Because Burrill's entry is brief and cites only 2 Leon. 90 (a reference to Leonard's Reports, an Elizabethan-era English reporter), the documented pedigree of the term runs deep into English common law practice. Do not expect modern American treatises to carry a detailed entry.
Historical Dictionary Support
Burrill's Law Dictionary defines counter bond tersely: "In old practice. A bond of indemnity." The supporting citation to 2 Leonard 90 places the term squarely in Elizabethan English common law. Burrill's framing as "old practice" is itself a research signal — by the mid-nineteenth century, when Burrill was writing, the term had already begun receding from active American legal vocabulary.
No other source dictionaries in the Law Mind shelf provide an independent entry for counter bond. This gap is informative: the term's decline in usage meant it received less treatment in the American law dictionary tradition that developed through the nineteenth and twentieth centuries. Researchers should treat Burrill's entry as the primary anchor and supplement it by tracing the English procedural sources from which the instrument derived.
What the historical dictionaries do not address is the modern surety industry context, where counter indemnity agreements — functionally equivalent instruments — are extensively documented in treatises and bond forms. The conceptual continuity is strong even where the label has changed.
Jurisdictional Note
The term has no consistent modern jurisdictional definition in American state or federal law. Its operative function — indemnifying a surety or substituting security to obtain release of property — survives in modern practice under different labels. Admiralty courts have historically used the concept with greater terminological consistency than common law courts.
Encyclopedia Cross-Reference
Surety Bonds — Performance, Payment, and Bid Bonds (Cross-Reference to Construction) (The Law Mind Insurance Law Encyclopedia)
Suretyship — Performance Bonds and Payment Bonds (Construction Context) (The Law Mind Contracts & Commercial Law Encyclopedia)
Bond Hearings — Danger and Flight Risk, Bond Amounts, and Redetermination (The Law Mind Immigration Law Encyclopedia) [for bond substitution mechanics in a modern procedural context]