#### Mitchell & Co. and Anderson, Adm’r, v. Patillo & Alston.

From Warren.

Executions having' issued against A. were levied on a horse in the possession of If, and \i. with the Defendants gave bond to the Sheriff for the production of the horse to the Sheriff, at a certain time. In this bond the Plainti^s, in the executions, were the obligees ; and on the failure of H. to der«'?r the horse to the Sheriff, notwithstanding the Sheriff did not attend to receive him, the Plaintiffs brought suit, and it was held, that as the obligors had undertaken to do an acx, to a stranger over whom die obfgees had no control, the obligors were not excused by the refusal or neglect of the stranger.

This was an action of debt, brought by the Plaintiffs, obligees, upon the bond of the Defendants, executed on the 22d of September, 1820, and was tried below before Norwood, Judge.

The condition of the instrument recited that writs of f. fa. had issued from Warren County Court, at the instance of the Plaintiffs, against the goods and chattels of one Powell; that these writs had been levied on a certain horse, as the property of Powell; that the horse was in the possession of one Harrison ; and provided, that “ if the said Harrison should produce and deliver the said horse to the Sheriff of Warren county, in the town of Warrenton, on or before the 24th day of November, 1820» then the obligation to be void &c.”

The subscribing witness to the bond proved that, in the evening of the 22d of September, 1820, he was in War-renton, in company with the Sheriff, Hawkins; that Hawkins said he believed he should have to carry home with him the horse, but hoped Harrison would be able to give security for his forthcoming. Shortly afterwards the ■witness was called into a room in which he found the Sheriff, Harrison and the defendants; the bond was then executed by Harrison and the Defendants, and attested by the witness.

*41A witness, on the part of the Defendants, proved that Harrison arrived with the horse, at Warrentou, on the evening’ of the 23d of November, 1820, and declared that be had brought the horse for the porpes?, of surrendering him to the Sheriff j about sunset, on the succeeding day, Harrison caused the horse to be c;r. r’od to the door of the Court-House lo Warreníun. and 1 bote'publicly declared his readiness to deliver the animal to the CíforilF, and that, he then and there tendkvid him pursuant t> the condition of the bonds but neither the Sheriff, or any personen his behalf, vv as there to receive the horse. The Sheriff had advertised the sale of the horse to take place in Warren-ton, oil the 24th day of November, 1820, but had not been seen in town during the day, nor had any of his deputies.

Any evidence dehors the bond to shew that it was taken by the Sheriff, and not by the obligees therein named, was objected to by the Plaintiffs, but the Court received such evidence, it was then contended by Plaintiffs that, to exonerate the Defendants, it was incumbent on them to shew a notice to the Sheriff to be at Warrcuion, on the 24tii, to receive the bor ic. The Court instructed the July that if such notice were necessary, they were at liberty to presume the Sheriff had it, from the facts staled in the condition of the bond, and from the evidence j and further, that if the bond were taken by the Sheriff without the agency and conn-act of the Plaintiffs, it was void j if taken by the Plaintiffs, on their own agreement with the obligors, it was good, and if the facts were as stated by tiie witnesses, Defendants were entitled to a verdict. A verdict was rendered for the Defendants ; a new trial having been refused, and judgment rendered, Plaintiffs appealed.

Henderson, Judge.

An obligation to perform an act is complied with by a performance only. The omission *42to perform it may be excused by the act of God, the act of the law, or the act of the obligee.

The Defendants rest their exou.se on the spirit of the third ground, that is, by making the omission of the Sheriff, the omission of the obligees, and if they succeed in this, certainly will prevail; otherwise, not. This case was not argued, and we are left to our own researches.

Coke, in his Commentary on Littleton, 208 b, — says, eíIf a man be bound to A. in an obligation, with condition to enfeoff E. (who is a mere stranger) before a day, the obligor doth offer to enfeoff B. who refuseth, the obligation is forfeit j for the obligor hath taken upon him to enfeoff him, and ins refusal cannot satisfy the condition, because ho leofment is made, but if the feofment had been made by the condition, to the obligee, or to any other, for his benefit or behoof, a tender and refusal shall save the bond, because he himself, upon the matter, is the cause wherefore the condition of the bond could not be performed, and therefore shall not give himself cause of action.” 1 am rather inclined to think that the case under consideration does not come within the latter branch of this rule ; it is quite evident it docs not within the first. To make the whole rule stand together, I must consider the stranger in the latter branch, as the agent or servant of the obligee, not barely one who was to do some ulterior act which might be for bis benefit; or, that the act when .done, was beneficial tb the obligee; for, in the case where the act was to be done to a mere stranger, the obligor might always get relief in equity by paying the damages which the obligee has sustained by the breach, and if not interested in the act, he could sustain none; at most, only nominal. Why, then, not excuse him, where the stranger refuses to receive the act ? There can be no other rational ground than, that the obligee is interested in having it done, and the obligor having undertaken to do it to a person over whom the obligee has no control, the obli-gor is not excused by the refusal or neglect of the stran*43ger} but where the obligee is the person to whom the act in to be done, or where it is to be done to his servant or , . „ , . , , „ , . Ins agent, a refusal, m such case, shall not gsve an action, because no man can give himself a cause of action by his own wrongful act, and the act of the servant or agent is the act of the principal. Nor does the case put immediately after the above quotation hear upon the present. The case is, if A. be hound to U. that C. shall en-feoff !); in this ease, if C. tender, and D. refuse, the obligation is saved, for the obligor himself undertakes to do no act, hut that a stranger .shall enfeoff a stranger: for in this case, one of the obligors, Harrison, is to do the act: he is no stranger to his co-obligors, and it is difficult to conceive a case where the principal is bound to do an act and the securities not, when the same obligatory words are used as applicable to both. The principle, I believe, is plain enough, and it is not disputed} it, is to he found in all the hooks — -the difficulty lies in its application. There is a case in 10 John. 27, Maunty vs. Drake and Goff, very much like this j indeed, in the view taken by the Court, (although the facts do not entirely warrant it, for, according to them, there was neither a surrender or or offer to do so, but only some talk about it,) it is impossible to distinguish it from this} and there, the opinion of the Court was, that the Defendants were not excused. I, therefore, think that the judgment should be reversed, and a new trial granted.

Ham, Judge, concurred.

Taylor, Chief-Justice,

dissetstiente. — Where tiie Defendant undertakes to do an act at a certain time and place, to which the concurrence of the obligee is necessary, and the latter does not attend, the condition is considered as performed, because the other party hindered it. The law is the same where the act is to be done to the agent of the obligee, or to another for his benefit, for it *44is the duty of tbe principal to take care that his agent is at the place ready to receive a performance.

A condition to be performed to a stranger, must be strictly and exactly performed, because the obligee has no control over him, and no man should rashly undertake to do an act, to the completion of which, the wish of another must unite with his own. The distinction seems to be plainly drawn between the obligee, and a stranger, and there is no middle term. If Hawkins was a stranger, the conclusion inevitably follows, that the Defendant has not done what the law, applied to his contract, demands from him. That he was not a stranger in contemplation of law, 1 infer from these circumstances. The Jury have affirmed the fact, that the. bond was taken by the agreement and contract of the Plaintiffs, and as the record shews that the bond was taken by Hawkins and made payable to the Plaintiffs, the substance of the finding is, that the Plaintiffs authorised Hawkins, as their agent in tins respect, to deliver the horse to Harrison, upon his entering into bond, to deliver him to the sheriff by a certain time.

The record furl her shews, that the horse was levied upon under the Plaintiffs executions, and therefore, the delivery to the sheriff must have been for their benefit, and this alone would distinguish the sheriff from a stranger, since he is agreed upon by the parties as the person to whom an act is to be done, which, when performed, is to enure to the benefit of the obligee. It may be said, that the Plaintiffs were already secure in their remedy against the sheriff, if he surrendered the property to Harrison. But they may have desired to accommodate Harrison; and they may have been willing to strengthen their security against the sheriff. For these reasons, I think the verdict is right.