Glover v. Taylor & Co.

A. J. WALKER, C. J. The surety on a replevin bond, in an attachment suit, was excluded as a witness on the trial of the cause, upon the ground of interest. The bond, which was for the delivery of slaves, was executed in 1859 ; and the trial was had in 1866. At the time of the execution of the bond, the negroes, which the defendant and his surety contracted to deliver, were slaves. We judicially know, that before the trial, the bond being unforfeited, slavery ceased to exist in the State of Alabama, and that a compliance with the bond had become, by the law of the land, alike impossible and illegal. This being the case, we decide, that the non-performance of the covenants of the bond became legally excusable, and that the surety could [129] not be liable for a failure to deliver the property, and was, therefore, not incompetent from interest. Upon the question, whether the death, before forfeiture, of property included in a replevin bond, without fault on the part of the parties, would excuse the non-delivery, the decisions of this court seem conclusive. In Burgess v. Sugg, (2 Stew. & P. 341,) a plea to a declaration on delivery bonds was held bad, because it only averred the death of the slaves levied on before suit, and did not show that the death occurred before forfeiture; the court expressing no opinion as to the effect of the death before the day specified in the bonds. Next, the case of Perry v. Hewlett, (5 Porter, 318,) presenting an analogous question, arose. The question was, whether the hirer of a slave, who had covenanted to return it at the expiration of the term, was excused for non-compliance by the death of the slave. The question was decided in the affirmative, upon a full examination of authorities. In the case of Morrow v. Campbell, (7 Porter, 41,) a failure to deliver a deed was attempted to be excused, upon the ground of its loss. The court, in holding the excuse insufficient, said: “ To excuse the performance of an express covenant, it must be shown, either that it is prohibited by law, or that its performance has become impossible, by the intervention of causes which human agency could not prevent. To illustrate the latter excuse: If one rents a house, which he stipulates to repair; if it be destroyed by lightning, he shall notwithstanding rebuild it, because this is possible. But, if one rent land, and covenant to redeliver it to the landlord, in as good condition as when he received it; yet, if the timber is prostrated by a tempest, he shall not be held to a performance, because the injury was a result beyond human prevention, and reparation impracticable.” The decision in Givhan v. Dailey, (4 Ala. 336,) holding that death excuses the non-performance of a contract of service for one year, seems to recognize the principle, “that if a party is disabled by an act of God, before breach of his contract, he shall be excused from the performance.” Eor illustration, the court puts this example: “ If one man [130] lend his horse to another, who promises to return him by a day certain; if the horse die before the day, without the borrower’s fault, the re-delivery will be excused.” In the case of Falls v. Weisinger, (11 Ala. 801,) a bond was executed for the delivery of property seized by virtue of process issued from the chancery court. All the property, except one slave, was delivered as required by the decree, and that slave died before the decree was rendered. The question thus arose directly, whether the death of the slave, without fault, and before forfeiture, excused the failure to deliver according to the condition of the bond. The question was decided in the affirmative. The conclusion of the argument upon the point is as follows: “ 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 the slaves will thus far excuse a non-performance, in the same manner as if the case were an ordinary bailment with or without hire.” Addison, in his work on Contracts, states the doctrine of the inexcusableness of non-performance of contracts very strongly (pp. 1123, 1130); yet he says : “ This rule of law is subject to certain qualifications, for we have seen, that if a person receives a bag of money, or a specific chattel, upon a contract to deliver it to any particular party, or at any particular place, a loss by robbery with irresistible violence is an excuse for non-performance of the contract to deliver.” Another writer on contracts says : “ If the performance of a contract becomes impossible by the act of God — that is, by a cause which could not possibly be attributable to a promisor — and this impossibility was not among the probable contingencies which a prudent man should have foreseen and provided for, it should seem that this would be a sufficient defense.” The same author says, that illegality of performance, arising after the contract, is an “ impossibility by act of law; and it is put on the same footing as an impossibility by act of God, because it would be absurd for the law to punish a man for not doing, or in [131] other words require him to do, that which it forbids his doing.”—2 Parsons on Contracts, 672-674. In this case, we have a bond for the delivery of property, which was held under a bailment, as defined in our own decision of Falls v. Weisinger, supra. The delivery of this property is impossible, because emancipation has destroyed the quality of property in the subjects of the bailment, and illegal, because to deliver would violate the law; and this is the result of the vis major of political events, which no human sagacity could anticipate. In holding that the performance of such a contract is excused, we are within the principle announced by the decisions and authors which we have quoted. We are not called upon, and therefore do not attempt, to harmonize them, or to determine whether some may not go too far in one direction, and some too far in the other. By the Code, (§§ 2470, 2539,) a special provision is made for the case of the death of replevied property; but this regulation does not extend to the cases of the destruction of property by emancipation. The cases which we have collated show that, at common law, as understood hi this State, and declared by decisions which we should not disregard, a destruction of property by death, or by the law, without fault, would excuse its non-delivery. The provisions of the Code to which we refer, may be regarded as an exception from the general principle of the cases where death intervenes. The inclusion within the exception of the single case, is an exclusion of others. “ Indusio unius est exdusio alterius.” There is no room for an application of the doctrine, frequently asserted, but sometimes questioned, that a statutory revision of an entire legal subject is a repeal of the preexisting law. There has not been by the Code a revision of the pre-existing law on the subject of excuses for the non-delivery of replevied property. So far from being a revision of the entire subject, the Code singles out one branch of the general subject, for special regulation, and thus opens the door for an application of the maxim, which we have quoted above. The contract of a replevin bond is not for the delivery of [132] tbe property, or tbe payment of tbe judgment, in tbe alternative. It is simply for tbe delivery of tbe property; and tbe authorities cited in reference to contracts in tbe alternative, one alternative being legal, are not pertinent. A performance of tbe contract is, as we bave already seen, illegal. Becoming illegal, no action could be maintained on it. It stands now in tbe same category, as if it bad been illegal in its inception. No action can be maintained against a man for not doing wbat it would be illegal for bim to do. His ability to do tbe thing has nothing to do with tbe question. Tbe witness was competent; and for tbe error of bis exclusion, tbe judgment is reversed, and tbe cause remanded. We refer to Haralson v. Walker, (23 Arkansas, 415,) as an authority supporting the main propositions of this opinion. Judge, J., not sitting.