Cobb v. Harmon.

plaintiff's testator, having an unsatisfied judgment against Herrick, instituted proceedings before the County Judge of Ontario, which resulted in the judge's deciding that Herrick had unjustly refused to apply to the payment of such judg ment property and rights in action, under his control. To avoid a commitment of Herrick, the defendants executed the bond above mentioned. More than fourteen days previous to October 11, 1856, Herrick verified his petition in due form before the County Judge, and served on the plaintiff a copy thereof with an account of his creditors, an inventory of his estate, and a notice that such petition would be presented to the County Judge of Ontario on the 11th day of October, 1856. On that day the parties with their counsel appeared at the office of the County Judge, and Herrick was ready to prosecute the proceedings upon his petition in good faith. The judge was not in the county but was absent, and in a state of physical and mental disability from intoxication, so as to be unfit to discharge the duties of his office. No justice of the Supreme Court then resided in Ontario county. The proceedings were not further prosecuted. The plaintiff's testator, who was the sole prosecuting creditor, died October 4, 1856, after the service upon him of Herrick's petition and notice, and before the time for prosecuting it had arrived. The defendants insisted that by his death all the proceedings abated, as well those on the original warrant, under which Herrick was brought before the County Judge for examination, as those on his petition for a discharge, which resulted from the decision made upon his examination. The referee reported in favor of the plaintiffs, and the judgment thereupon entered having been affirmed at general term in the seventh district, the defendants appealed to this court. The cause was submitted upon printed arguments.

Smith & Lapham, for the appellants.

Woods & Murray, for the respondent.

LOTT, J. If it be conceded that the performance of the condition of the defendants' bond became impossible by the

Cobb v. Harmon.

non-attendance of the County Judge at the time and place appointed for making the application therein mentioned, and thereby agreed to be made, they are nevertheless liable.

It is a settled rule of law that where a party by his own. contract absolutely engages to do an act, or creates a duty or charge upon himself, he is bound to make it good notwithstanding any accident or other contingency not foreseen by or within the control of the party, unless its performance is rendered impossible by the act of God, or of the law, or the obligee; but where the law creates a duty or charge and a party is disabled from performing it without any default in himself and has no remedy over, then the law will excuse him.

This principle is fully sustained by the leading case of Paradine v. Jane (Aleyn, 26), and also in our own courts by the cases of Harmony v. Bingham (2 Kern., 99); Beebee v. Johnson (19 Wend., 500); and The People v. Bartlett (3 Hill, 571, and the authorities therein cited).

The defendants, in the case under consideration, entered into the bond of their own volition, and as their voluntary act. The law did not impose any obligation on them to execute it.

It is true that it was entered into to relieve the defendant Herrick from the consequence of an adjudication made by the County Judge, before whom the proceeding under the act to abolish imprisonment for debt, and to punish fraudulent debtors, passed April 26, 1831, had been instituted by Cobb, the obligee therein. That adjudication had declared him to be guilty of a refusal to apply property and rights of action which he had, to the payment of a judgment recovered by Cobb against him; and subjected him to imprisonment in consequence thereof. It then became the duty of the judge to commit him to the county jail, but he had the right to prevent such commitment by doing either of the following acts:

1st. By payment of the debt or demand claimed, with the costs of the suit, and of the proceedings against him.

2d. By giving security, satisfactory to the officer, that the debt or demand, with the said costs, should be paid within sixty days, with interest.

Cobb v. Harmon.

3d. By delivering to the officer an inventory of his estate and an account of his creditors, and executing an assignment of his property for the purpose specified in the act; and,

4th. By giving the bond now in question.

The proceeding was instituted for the enforcement of a private right by the judgment creditor, and resulted in securing to him a remedy which he did not previously possess.

It was optional with the debtor, thus proceeded against, to permit the creditor to pursue that remedy, or at his election to deprive him of it, by either of the modes above mentioned. He elected to give the bond in question, and the appellants, who had previously no connection or interest in the transaction, became his sureties. It was an act which they were under no legal duty to perform. They thereby voluntarily assumed an obligation which they bound themselves to the creditor to discharge, as a substitute for the remedy which, in consequence thereof, was taken away from him.

The engagement was absolute and unqualified, and has not been performed. The question is then presented, whether the non-performance is excused. It is conceded that at the time of the execution of the bond, there was a County Judge residing in the county in which the defendant resided, and that his residence therein continued till after the expiration of the time within which the application referred to in the condition was to be made, and that such initiatory proceedings had been taken and notice given as was requisite for making such application; but the County Judge, on the day designated for that purpose as stated in the finding of the referee, "was not in the county but was absent, and in fact in a state of physical and mental incapacity, so as to be unfit to discharge the duties of his office."

The application consequently could not be made to him at that time, and the result was, that it was never made. Do these facts constitute a legal excuse? They certainly do not bring the case within the exceptions above stated. The non-performance was not caused by the act of God, nor of the law, nor of the obligee. It was attributable solely to the default of

Cobb v. Harmon.

the judge, resulting from acts within his own control. His absence was voluntary, and his inability or unfitness to discharge the duties of his office, was in consequence of the free indulgence of a depraved appetite. All was the result of his own agency, and although the defendants themselves had done nothing to contribute to that result, and may not have been able in fact to prevent it, they nevertheless, by obligating themselves absolutely that the application should be made, became bound, not only that the petition and notices necessary to that end should be served, but also that the requisite means to make those steps effectual should be secured through the officer of the law appointed for that purpose. As a part of those means they undertook to secure the attendance of the judge, and so far to rule and govern him as that he should not by his own acts and conduct disqualify himself from the discharge of his official duty. Their obligation was in this respect the same in principle as that assumed by a party for the faithful discharge of an official or other duty by a third party, and the performance thereof was no more impossible. It is said by BRIAN, Ch. J., that "there is a diversity where a condition becomes impossible by the act of God, as death, and where by a third person (or stranger), and where by the obligor, and where by the obligees; the first and last are sufficient excuses of forfeiture, but the second is not, for in such case the obligor has undertaken that he can rule and govern the stranger, and in the third case it is his own act." (Viner's Abt., tit. Conditions (G.), pl. 19, citing Br. Conditions, pl. 127.)

It was competent, as has already been stated, for Herrick in the proceeding against him in order to avoid his commitment to have given security to the satisfaction of the officer, before whom it was pending, that the debt or demand of the creditor, with his costs, should be paid within sixty days, with interest. Suppose the defendants, instead of giving the bond they did, had covenanted that such debt, or demand with the costs, should be paid by Herrick within the time specified, and that at the expiration thereof he had been unable to make such payment, would such inability operate as an excuse for the non-perform

Cobb. Harmon.

ance of the covenant? That would not be pretended; yet the compliance in the last case may have been more difficult and more impracticable than in the case under consideration. The County Judge might have been brought back to the county, and assuming that he was unfit to discharge the general duties of his office, it may not be unreasonable to presume, from the cause of such unfitness, that he might nevertheless have been able to adjourn the proceedings; indeed, his absence from the county, and his disability too, might possibly have been prevented by proper precautionary measures or otherwise. At all events, there is nothing to show that it was absolutely or physically impossible to have secured his attendance and action.

It has already been remarked that the bond in question was executed to relieve Herrick from commitment to prison, and that the creditor was thereby deprived of a valuable remedy then available to him, and which he did not previously pos sess; and I will here add, that the same law which authorized the execution of such bond for the attainment of the object, also provided that whenever it became forfeited by the nonperformance of the condition thereof, the plaintiff should be entitled to recover thereon the amount due to him on the judg ment in the original suit, instituted against the defendant giving such bond. (§ 18.)

Its effect was therefore, as stated by the referee, an agreement to pay the debt, with a provision that payment might be avoided or rather that the bond should be deemed satisfied, if the judgment debtor did certain things. He failed to do them. There was no contingency provided for, and although it is true that the obligors could not qualify their obligation, for the reason that it was prescribed by the law, yet they did the same thing in substance as if they had entered into any other absolute engagement without any qualification, because the execution of it in the form so prescribed was an act entirely voluntary on their part, and not in discharge of any legal duty or obligation imposed or charged on them. There is, therefore, no reason why the obligors should not be held liable to the same extent as if the bond had been made on terms and condiSMITH.-VOL. IX.

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