Falls v. Weissinger

COLLIER, C. J. The filing of the amended and supplemental bill, by which other parties were associated with the complainant, the obligee, did not, so far as the pleadings inform us, vary the frame of the bill or ask other and different relief from that sought in the first instance. It did not in any manner extend or limit the liability of the obligors; nor does it appear to have restricted or impaired the rights of the obligee. The declaration then could not have been adjudged bad on demurrer merely because new parties were introduced upon .the record after the execution of the replevy bond. There was no necessity for the sheriff to have returned the bond forfeited to authorize the obligee to maintain an action against the obligors for a failure to perform its condition. We have no statute which makes such a requirement in re [804] spect to a bond like that declared on; and such a return, or the want of it, can avail nothing. To entitle the plaintiff to a summary remedy on a forthcoming bond, and perhaps in other cases, the statute directs that the bond shall be returned “forfeited.” But if there was an omission thus to return it, we apprehend that the plaintiif would not be foreclosed of a remedy at common law. It is-insisted that the plea which sets up the death of the slave as an excuse for the performance of the condition of the bond pro tanto, cannot be supported; that the decisions of this and other courts which maintain that if the chattel perish pending an action of detinue, and in analogous cases, the plaintiff’s right to recover will not be affected, are opposed to such a defence. If a party is in default for not performing a duty, as for the non-delivery of a chattel, he cannot absolve himself from a liability which has already accrued, by proof that the thing has been lost, or destroyed by the act of God, without his fault; more especially, if before the happening of the event, an action has been instituted upon the liability. The principle upon which this rale rests is well supported both by reason and authority, though in some cases it may have been pressed too far. It supposes that if the right of action becomes perfect by the failure to deliver an article of personal property to the person entitled to it, the party in default shall not relieve himself from the consequences by proving that a delivery afterwards became impracticable by something occurring post factum, which the person entitled had no agency in producing. In Burgess and Davis v. Sugg, 2 Stewt. & P. Rep. 341, which was an action on certain forthcoming bonds, the plea alledged that the slave for the delivery of which the obligors had stipulated, died previous to the commencement of the suit. The court said, “ the right of action on the bond refers to, and accrued at the time of the forfeiture; and if the death of the slave occurred subsequently thereto, it afforded no bar to the plaintiff’s right of action, and was correctly ruled to be bad on demurrer.” This remark of the court, if it can be regarded as settling any principle beyond the precise point then in judgment, rather intimates that if the slave had died before the bonds were forfeited and the liability fixed, the [805] obligors would have been relie red from a performánce of their undertakings. In the case at bar it cannot be inferred that the defendant in the suit in chancery was in default for not delivering the propérty seized by the sheriff, or that the order contemplated its delivery to the complainant, if the replevy bond had not been executed. The declaration alledges that the purpose of the bill was the foreclosure of a mortgage. We must then intend that the object of the order and consequent seizure was to secure the slaves, so that they should be forthcoming to answer the decree of foreclosure and sale. In this view the bond, so far as it respects the present case, was in legal effect nothing more than a forthcoming bond; the breach of which depended upon the decree in favor of the complainant. The question then is, did the death of the slave previous to a breach, relieve the obligors from a compliance with their engagement as it respects him. In Perry v. Hewlett, et al. 5 Porter’s Rep. 318, which was an action upon a covenant by which the defendants undertook to pay the plaintiff the sum of $150 for the hire of two negroes, and to return them on the tioenty-fifth day of December, eighteen hundred and thii'ty-four — This court said, “the defendants in fhis case were prevented by the death of the slave Fanny, without their default, from returning her according to their covenant, and they are entitled to a discharge from so much .of their contract, as the act of God disabled them from performing.” So in Givhan v. Dailey’s adm’r, 4 Ala. Rep. 336, it is said, “ the principle has been repeatedly acknowledged, that if a party is disabled by an act of God, before breach of his contract, he shall be excused from the performance. Thus, if one man lend his horse to another, who promises to return-him by a day certain, or on request, if the horse die before the day or request, without the borrower’s fault, the re-delivery will be excused.” The party to whom the slaves were delivered by the sheriff upon the execution of the bond, may be regarded as a bailee and the obligors as stipulators, for their delivery upon the condition provided for; and the effect of the death of one ,of the slaves will thus far excuse a non-performance in the [806] same manner as if the case were an ordinary bailment, with or without hire. The cases cited are then, in principle analogous to the present, and show that the death of the slave John before the condition of the bond became absolute, thus far relieved the obligors from a performance of their obligation. It is however contended for the defendant in error, that although the demurrer to the pleas should not have been sustained, yet as the defendant below might have proved the same fact which they set up under the other pleas, he has not been prejudiced by the judgment on demurrer; and therefore cannot complain of the decision against him. All the pleas were affirmative, and it devolved upon the defendant after the plaintiff had produced the bond and shown a breach, to sustain a defence by proof. Now, although it may be that the plea of performance would have tolerated the admission of all the facts alledged in the several pleas; yet we must intend under the circumstances of the case that the demurrer was sustained, because it was supposed that the pleas adjudged bad, did not present an available defence; and that the court would not have admitted evidence of the fact they alledge. Where a demurrer to a plea has been improperly sustained, if it appears that the defendant has had the benefit he could have derived from it, upon the trial of issues on other equivalent pleas, he cannot insist upon the error; as no real injury was done him. [See 4 Ala. Rep. 230; 8 Id. 161; 3 Id. 942.] It remains but to add, that the judgment is reversed and the cause remanded.