
    Nelson v. Anderson.
    [April Term, 1800.]
    Appeal Bond — Security — Exoneration. —M. appeals from a judgment obtained against him by A. m the county court; N. joins M. in the appeal bond: Then M. dies and the appeal abates, without being revived. N. is exonerated.
    Anderson brought actions of debt in the District Court against Nelson as security to Maury upon two appeal bonds dated December 1st 1786. The conditions of which, after reciting the judgments appealed from, proceeded thus. “Now if the said Walker Maury shall effectually prosecute the said appeal, perform the judgment of the General Court, and pay all costs and damages which shall be awarded by the said General Court, in case the judgment aforesaid shall be affirmed, then the above obligation to be void otherwise to remain in full force and virtue.” The plaintiff assigned for breaches of the conditions, “That Walker Maury named in the said condition did not effectually prosecute the appeal mentioned in the said condition according to the form and effect thereof.”
    The defendant took oyer of the bond and condition; and plead, “That the said Walker Maury departed this life before the trial of the appeal, for the effectual prosecution of which, this defendant is charged by the plaintiffs declaration to have bound himself, and the failure in the *same, on the part of the said Walker Maury is assigned as the breach of the condition of the writing obligatory in the plaintiffs declaration mentioned, whereby an abatement of the said appeal was adjudged by the court, before whom the said appeal was depending on the fifth day of May 1790, at which time and at all times since, no revival of the said appeal has been adjudged or effected. Wherefore he says that he ought not to be charged &c. All which he is readj' to verify; wherefore he prays judgment &c.” General demurrer thereto by the plaintiff; and joinder.
    The second bond, the pleadings, demurrer and joinder are in all respects the same as the first, except that in the plea the words “and the failure in the same, on the part of the said Walker Maury is assigned as the breach of the condition of the writing obligatory in the plaintiffs declaration mentioned,” are omitted.
    The District Court gave judgment for the plaintiff; and Nelson appealed to this court.
    Call for the appellant.
    It is generally true that the act of God excuses the performance of a condition; and there is the same reason for it in this as in other cases; because it was no more practicable for the obligor to have done the act in this than in any other case. If a bond be given to appear and defend a suit, and the defendant dies before the appearance day the securities are discharged; and the reason is the same here, for the undertaking is personal, that he will prosecute the appeal, and not suffer a voluntary nonsuit. The appellees should have sued a scire facias, to revive the appeal, and, not having done so, they waived the benefit of the security. For in principle it stands upon the same ground, as an appeal not brought up in two terms; in which case the appellee, who might have brought it up and had damages, cannot afterwards pray them; because said the court he has his advantages in not doing *so, as the delay has prevented a supersedeas or writ of error; and similar motives might have actuated the appellee in this case. If the appellee meant to insist on his security, it was his duty to have sued out a scire facias; because the executor might not have known of the judgment. The case resembles that of bail in error, who are not liable if the principal dies before the decision in the court of error. 5 Vin. ab. 528; Roll, rep. 329. The like principle was asserted in this court in Keel v. Herberts ex’rs, 1 Wash. 138. Which expressly decides, that the non continuance of the suit after the death of one of the parties does not forfeit the bond. For if so, the executors might have brought suit upon the bond in that case. The same idea is pursued by the court in 12 Mod. 380; where it is said, that nothing but an actual determination of the cause by the voluntary act of the part}', or the judgment of the court will render the securities liable.
    Wickham contra.
    The rule that the act of God shall excuse the performance of the condition, only applies in those cases, where the executors cannot do the act which is stipulated for, as in the case of the bond for appearance; but wherever the act may be performed by the executor, it is necessary that he do it, or the bond is forfeited. Now here the executor might have prosecuted the appeal; and having failed to do so, the condition of the bond is broken. The case of the appeal, which has not been brought up within two terms, does not apply; because the appellee could have no such advantages here as in that case, inasmuch as the executors, if there was any error, might, notwithstanding the abatement, have obtained a supersedeas or writ of error. Nor was it necessary for the appellee to have sued a scire facias in order to have apprized them of the appeal, for the law does not admit them to have been ignorant of it. And if the debtor had died insolvent so that no body would administer on his estate, then the appeal could not have been renewed. *The case of Keel v. Herberts ex’rs, was decided without argument; but, in addition to that, the first supersedeas was not served, and so no hindrance to the execution. Two objections appear to have been taken in the case in Roll, one was decided against the security, and the other merely given up by the court. The case in 12 Mod. does not apply; because, there, the suit died with the party, and could not be revived, in the name of the executors.
    Call in reply.
    It was expressly decided in the case in Roll, that the death of the principal was a discharge of the security; but the cause went off, upon the point of prior delay, which was disclosed by the plea.
    Cur. adv. vult.
   LYONS, Judge.

Delivered the resolution of the Court, That conditions of this kind, where the act was to be performed personalty by one of the parties, were for the benefit of the obligors; who stood excused, when the act of God or of the law prevented the performance. Laughters case, 5 Co. That it rested on the same footing as costs; which are not recoverable, where the party dies and the suit abates, unless it be revived. That the party here, who was to perform, being dead, it was impossible, that the stipulated act could be done by him, which therefore excused the security. But as the condition of the bond, also, was, that he should pay the debt, in case the judgment should be affirmed, if an affirmance had taken place after the death of the principal, the securities would have been liable; and it was in the power of the ap-pellee to have sued a scire facias and obtained a judgment of affirmance, if there was no error: whereas, it was not in the power of the security to have done this; neither could he have compelled the executor to have sued a scire facias and revived the appeal. That consequently, as *the appellee might have done it, and the security could not, it was more reasonable, that the appellee should suffer for the neglect, than that the security should: Especially when it was considered, that if he had actually sued a scire facias, the judgment might, perhaps, have been reversed. So that although the security was not in danger, if the cause had been brought to a hearing in the Appellate Court, he might be rendered liable in consequence of the neglect to obtain the scire facias. Which never could be right. That the Court was therefore of opinion, that the judgment should be reversed, and judgment entered for the appellant upon the demurrer.

Judgment Reversed.  