Briggs v. Hobson , 3 Ala. 404 ( 1842 )

ORMOND, J.

The question, whether the bond was forfeited, depends on the sufficiency of the notice. The supposed fault of the notice is, that in one of the insertions in the newspaper, the time of rendering the schedule is stated to be Saturday, the 28th of July, when in fact the 28th of July, the time appointed, was Friday. We are of opinion that the notice was sufficient. Saturday, the 28th of July of that year, was an impossible date, and could not therefore, mislead any one. The true date was given, and although it is added, that that day will be Saturday, no one could be thereby deceived, as the day of the month, and not the day of the week, was the time which regulated the proceeding.

The notice being sufficient, and the principal obligor offering to perform the condition of the bond, was in law a performance. It was not in the power of the debtor to compel the justices to act, to administer the oath and receive his schedule.— This is not like the case of one who covenants, that another shall do a particular act; in that case, he cannot say that he had no control over the action of such person, as an excuse for its nonperformance, but is bound to procure the act to be done.

In this case, a benefit is by law conferred on the debtor, provided he does certain acts, the performance of which cannot be effectual without the concurrence of a justice of the peace.— Now, as it is not in his power to control the action of the magistrate, an offer to perform, must, in law, be a performance, at least, so far as to prevent a breach of the condition of his bond.

Let the judgment of the Court below, be affirmed.