Olive v. Alter

Napton, J., delivered the opinion of the court. This case turns altogether upon the action of the court in sustaining the defendant’s demurrer to the plaintiff’s replication to the 8th 9th and. 10th pleas. This involves the question whether the delivery of the boat into the custody of the sheriff and the taking of the new bond by the court, either singly or together, discharged the defendants; the action of the court having been at the instance of the defendants themselves and without the consent or knowledge of the plaintiffs^ A'hondmay be discharged, when performance is prevented by an act of God, or of the obligees or of the law. Here there has been an act of a court, which prevented the defendants from availing themselves of one of the conditions of their bond, and the question is, whether this action of the court is to be regarded as one of those acts of the law which, it is agreed by all authorities, will discharge a contract. That the court had the power to order a new bond, and to cause the boat to be delivered upon such bond, can certainly not be questioned by the defendants, at whose instance this power was exercised. But if the effect of such a proceeding is to deprive the plaintiffs of their prior security, it must result from a power in the court to deprive a party of his rights without notice, against his consent and at the instance ofhis adversary. The action of the court seems rather to-be the act of the parties themselves, and not an act of law which operates without respect to the assent or dissent of the party affected-. [190] Where bonds are taken in conformity to some statute, the statute may also give the courts a power to institute new ones and relieve the security upon the old bonds. But the bond in this case was a voluntary one, and derived its efficacy from no statute. We cannot construe the action of the court in allowing a record bond to be given as designed to affect the rights of the obligees in the first, since they had no opportunity of being heard upon the motion, and never assented to the proceedings. Judgment reversed and cause remanded.