Majority
p. 27Mounsey against Drake and Goff. ALBANY, Jan. 1813.
Headnote
A. gave a bond tinned ¿“"be ™'^st A.hadbrought. should/on or ply damages and costs recovered in that suit, °Ld'™hhn/eif sheriff of L. 11 or* before that day, &c. ; and it was P,rov?.(* thafc C# did not pay the mo-that he ’ aptimelndpllce mentioned in the condition, of the bond, himse^to the anTto theattorney of the plaintiff, for the purpose of ¡jeved, accord-™j?fo bond; but ma surrender the custody* that the^con-bond was bro-pilmtiff^nti*?,. rej°~ ver; the de« fendant being bound to procure a strict performance of the specific act' of surrender by C. into the custody of the sheriff; and a mere offer to surrender by C, would not excuse the non-performance..THIS was an action, of debt, on a bond, dated 17 th January, 1811, executed by the defendants to the plaintiff, for 160 dollars: conditioned, “ that if the defendants should pay to the plaintiff the sum of 80 dollars and 79 cents, together with the costs of a suit, then pending in the court of common pleas of St. Lawrence county, in favour of the plaintiff against Levi Tuttle, (who had given a cognovit therein for that sum,) on or before the first Thursday of June next ensuing the date of the said bond; or if ^ the said Levi Tuttle should pay the said sum, or surrender himself into the custody of the sheriff of the said county of St. Lawrence, in the said suit, on or before the said first Thursday in June next; or it should so happen, that the said Levi Tuttle should die on or before the said first Thursday in June, then the obligation to bp void ” &r DC V01C1, etc.
The cause was tried at the St. Lawrence circuit, the 24th June, 1812, before Mr. Justice Thompson. The plaintiff produced and proved the bond, and also a record of a judgment in the suit referred to in the condition, in which the costs were assessed to 28 dollars and 10 cents, and claimed damages on the breaches . ~Z assigned under the statute, to 115 dollars and 2 cents.
The defendants, under a notice subjoined to the general issue, offered to prove, by Levi Tuttle, that he, Tuttle, was at the courthouse in St. Lawrence county, on the first Thursday in June, , , „ , , , 1813, and appeared before the sheriff ot the county, and offered to surrender himself up into the custody of the sheriff agreeably to the condition of the bond, and was in the presence of the sheriff and the plaintiff’s attorney, ready to surrender himself, &c.
The plaintiff’s counsel objected to the admission of the testimany; 3. Because it went to prove only an offer to surrender,, and not an actual surrender; 2. Because Tuttle was an incompetent witness, on the ground of interest.
The defendants then produced the discharge of Tultle under the late insolvent act, and he tras admitted as a witness. He testified that he was at the court-house in Oswegatchie, in St. o 7 reme county, before and on the first Thursday of June, 1811,
p. 28
having gone there for the purpose of exonerating his sureties, and continued there during the June term of the court of common pleas of the county; that during the time he was there, he had repeated conversations with the sheriff of the county, and mentioned to him the reason of his coming there, and talked about surrendering himself; and he also told the attorney of the plaintiff that he had .come there to surrender himself up in exoneration of his bail.
Both the sheriff and the attorney of the' plaintiff testified, that . they had no recollection of seeing, Tuttle at the June term of the court of common pleas, &c- or that any conversation passed between them as stated by Tuttle. The attorney stated that he was anxious to have Tuttle taken, and had actually filled up a ca. sa. for that purpose; but ho execution at that time was actually issued against him.
The jury, under the direction of the judge, found a verdict for the plaintiff subject to the opinion of the court.
A motion was made to set aside the verdict, and for a new trial.
Henry, for the plaintiff.
Foot, contra.
One of the conditions of the bond was, that Tuttle should, on or before a given day, “ surrender himself into the custody of the sheriff of. St. Lawrence, in the suit” therein mentioned. It is not pretended that the other disjunctive condition has been performed, by the payment of the money, and the question then recurs, is here the requisite evidence of the performance of this condition ? Tuttle himself says, that he appeared at the court-house on the day, (which was the day of holding the court of common pleas,) and talked repeatedly with the sheriff as to his errand, and about, surrendering himself, and that he also mentioned his business to the plaintiff’s attorney. But neither the sheriff nor the attorney recollect- any such conversation, and if they had, the conversation cannot be considered as amounting to a surrender, within the meaning of the condition. He was to surrender himself into custody. He was to perform this specific act, and the defendants were bound to see it performed, or pay the money. The loose conversation which Tuttle might have had with the sheriff and attorney, was no surrender. That conversation was liable to be misunderstood; and to place reliance upon it
p. 29
might be productive of uncertainty, mistake, or fraud. The condition of the bond required the performance of an act not to be mistaken or misunderstood, and the. defendants were bound, at their peril, to see that the sheriff took or received Tuttle into custody, as a prisoner in the suit. The plaintiff was not to do any act to facilitate the surrender. No precedent act was required on his part, and it is no excuse for the non-performance of the condition, that the plaintiff might, and did not, issue an execution to the sheriff, or that the sheriff might, and did not, or would not, take or receive Tuttle into custody. It is not sufficient for the defendants to show that Tuttle had even done all in his power. A performance must be shown, unless prevented by the act of God, or by the act of the law, or by the act of the obligee himself. Lord Coke says that if A. undertake to enfeoff B., he is bound to prevail on B. to accept livery of seisin- So if A. covenant that B. shall resign his living at a particular time, the covenant is forfeited, though the bishop will not accept the resignation. Thus in the case of Hesketh v. Gray (Sayer, 185.) the condition of the bond was, that the obligor should deliver up a vicarage into the hands of the proper ordinary, and it was held to be no excuse for the non-performance of the condition, that the obligor had offered to resign and deliver up the vicarage, and that the bishop had refused to accept the resignation. The bishop was a stranger to the obligee, and, therefore, as Sir Dudley Ryder- observed, it was incumbent upon the obligor to procure bis acceptance; for if an obligor undertake for the act of a third person who is a stranger to the obligee, it is incumbent upon the obligor to. procure the act to be done, unless at the time of entering into the bond there was an impossibility of doing the act, or the doing of it had since become impossible, by the act' of God, or of the law. There are many other cases, and through every period of the law, in which the same principle is laid down, and with equal strictness. (Lamb’s Case, 5 Co. 23. Doughty v. Neal, 1 Saund. 215. Studholme v. Mandell, 1 Ld. Raym. 279. 1 Roll. Abr. 452.1. and several cases there quoted from the Year Books.) The bond in this case was, therefore, forfeited, and the plaintiff is entitled to judgment.
Judgment for the plaintiff.