
    Taylor & Otis against Bullen.
    ALBANY,
    Feb. 1827.
    On error from the C. P. of Madison county. In that court, Bullen declared against Oiis, impleaded with Taylor 1 that on the 4£A of December, 1817, Stroud made his note t°r $67,50, at two years, payable to Taylor or bearer; that on the 6th of May, 1819, the defendants below, for a valuable consideration, assigned the note to the plaintiff be-^ow 5 an<t for value received, promised him to warrant the collection of the note, and to pay him all costs on all suits legally commenced ior its recovery. The 1st count then charged, that on the 20th of September, 181®, Stroud died intestate, insolvent, and no letters of administration of his estate had ever been granted. The 2d count was, that Stroud died intestate, and no letters of administration had ever been taken out, whereby it was impossible to com- . r menee any suit. To these were added the money counts.
    
      Plea. 1st. the general issue; 2nd. to the 1st count, that Stroud died seised and possessed of a large real and per- * 0 r sonal estate, more than sufficient to pay the note, subject to, and chargeable with his debts; 3. to the 1st count, the 9ame as the 2d plea, with the addition that the plaintiff * r had never commenced any suit or suits, or other proceed-fog3 against Stroud, or. his heirs, devisees, or personal representatives, for the collection of the note ; nor had the r % m ⅞ % 7 7 plaintiff applied to the surrogate of Madison county, or any other proper officer, for grant of administration of Stroud's es^a^e> nor fo anJ waJ or manner attempted to collect the note, 4 and 5. To the 2d count, the pleas were substantially the same as those to the 1st.
    Demurrer and joinder to the 2d, 3d, 4th, and 5th pleas, The suit was commenced in the court below, in February . r. • , , , „ ,, . ° term, 1824. It was continued to June term following, when Ae court below gave judgment on the demurrers thus : It appears to the said court here, that the said first and , . „ . . , , second counts of the said declaration, and the matters therein contained, &c. are sufficient in law, &c. Therefore, it is considered that the said plaintiff do recover,” &c. And in February term, 1823, the damages of the plaintiff were assessed on a venire tamquam at $96,64, on the two first counts, for which the court rendered judgment with costs.
    
      lection of a thepromLetfiiU legally1 ^ conf menced for its not be enforc-be commenced* or a legal excuse for not doing so is shewn. A promise to warrant the col-
    mencemenT'of a suit is a condition precedent.
    Whether the aneé'orhappén-ing of a condi-pon precedent to a right of accused^o^as *to give the right, by any thing short of the act iwty r°Querete
    On a promise to warrant the collection of a maker^and pay aii costs of ail suits legally commenced for fee attémpt^to con&tiorf^pre-cedent;itisno the "at-maker’ St testate before the note fell due: and that cn out let tos Of administration unon his estate. '
    
      At the trial, the plaintiff proved the note, warranty, death of Stroud intestate, and that no letters of administration of his estate had been taken out, as mentioned in the declaration. The defendants offered to show that he left real and personal estate sufficient to satisfy the note ; but the evidence was rejected by the court, and the defendants excepted.
    
      G. C. Bronson, for the plaintiffs in error.
    The two first counts are bad in substance, (the second especially so,) in not averring an attempt to collect of Stroud, his heirs, or devisees. The pleas demurred to were good. The court also rejected proper evidence. The attempt to collect, was a condition precedent; and Stroud’s death was no excuse. If he had made no will, appointed no executor, and no letters of administration were taken out, still their was a remedy against the heir, or some one as executor de son tort. The plaintiff might also have applied to the surrogate, and himself taken out letters, and retained for his debt
    If the attempt to collect be a condition precedent, nothing will excuse its omission ; not even the act of God. (19 John. 71, 2. 6 T. R. 210, 710. 2 H. Bl. 574 to 582. 1 id, 254. 2 H. Bl. 577, note. 3 Mass. Rep. 443. 7 T. R. 377. 6 id. 320. 1 John. 267.) The act of the defendants below could alone furnish such an excuse as would maintain the action. Though a defendant, sued for not doing an act, may excuse himself in many cases, yet the only excuse for.not performing a condition precedent, which is to give a right of action, must arise from the act of the party sued. Beside, here was, in fact, very great delay and neg^ ligence.
    
      
      J. A. Spencer, contra.
    The death and intestacy of Stroud, were a sufficient excuse for not attempting to collect the note by a legal proceeding. The warranty was, that the note should be paid, if not collected in the ordinary course of legal proceedings. This became impossible by Stroud’s dying intestate, and no letters of administration being taken out. That Stroud should be where he could be sued when the note fell due, was a condition precedent to be performed by Taylor and Otis, before Bullen was obliged to prosecute. He was under no obligation to prosecute any one as executor de son tort, or any supposed heir or devisee. A proceeding against these, must have been very hazardous and uncertain. It was not offered to be shown that any such persons resided within the jurisdiction of any court in this state, and no such facts were alleged in the pleas. If the prosecution be a condition precedent, it may certainly be excused, short of any act of ours ; and this is agreed by the cases. (19 John. 71, 2.)
    He referred to 2 Cotoen, 786, and the cases there cited, as to the construction of contracts.
   Curia, per

Savage, Ch. J.

The question is, whether the plaintiff below was not bound to prosecute those who were in possession of Stroud’s property ; and endeavor to collect the money by suit at law-

It is admitted, that the plaintiff below was bound to sue Stroud, or shew a legal excuse for omitting to do so. And it is contended that the death of Stroud intestate, and no administration granted, constitute a legal excuse.

The pleas state that Stroud left property enough, subject to the payment of his debts, and that the plaintiff below never took any legal measures to collect the money.

The guaranty supposes, that a resort to legal measures might become necessary; and the defendants below engage to pay costs on any suits legally commenced. My construction of the guaranty is, that Bullen was to take the trouble of the collection, and Taylor and Otis the responsibility.

It seems to be conceded by the declaration, that if Stroud had left executors, or administrators had been appointed, the plaintiff must hare sued them before he could resort to his guaranty.

But if there is property enough, the law points out sufficient remedies. The plaintiff was surely bound to pursue such legal remedies as he was entitled to, before he could prosecute the defendants. Suppose Stroud had not died, but had gone to some other place, without this state, and had left property sufficient to pay the debt; must not the holder of the note use the remedy applicable to such a state of facts ? The contract is not that Stroud shall remain, and be served with a capias in an action of assumpsit; but any suit legally commenced, was contemplated. If there was property, as is represented by the pleas, some suit orpro-ceeding might have been instituted. Here was a condition precedent; that condition was not confined to a prosecution of Stroud himself. Had it been so, then indeed the plaintiff would possibly have been excused, as that was rendered impossible by the act of God, the death of Stroud. Even this, however, may be doubted. In Moakley v. Riggs, (19 John. 69,) Spencer Ch. Justice, says, “though the act of God, or the act of the law which renders the performance of an act stipulated to be done, unlawful, may excuse a party from a strict compliance with his contract as matter of defence, it may well be doubted whether an engagement by one to perform an act on the previous performance of another act by the other, can be enforced without shewing the previous act done, or that its performance was dispensed with, or prevented by him who was to perform the subsequent act.” This is in accordance with the settled law in relation to conditions precedent. In Wood v. Worsley, (2 H. Bl. 574,) which was an action on a policy against fire, the condition was to produce a certificate of the minister and church wardens, of certain facts. The certificate was not procured ; though other evidence of the facts was ; and that the minister, &e. refused withoutcause, to give the certificate. The common pleas held this tantamount toa production of the certificate. But the judgment was reversed in the king’s bench, (7 T. R. 710;) tlia.t court holding the production of the certificate, a condition precedent, and that it was immaterial that the minister wrongfully refused. In Routledge v. Burrell, (1 H Bl. 258,) the court upon a similar point, said the matter was too clear to admit of a doubt. In Campbell v. French, (6 T. R. 200,) a bond was conditioned to pay certain bills of exchange, if returned from India, protested for non-payment. The bills were returned protested for non-accept-ünce; and the court held the obligors discharged, the condition not being performed, though it might have been. So here, a suit or suits, at law, might have been prosecuted, and the money collected, as is inferrible from the pleas. The plaintiff has not made any effort to collect the money; and, in my judgment, his suit on the guaranty was premature. The judgment of the common pleas must be reversed.

Judgment reversed.  