
    Luckett vs. Moore.
    
      October 14.
    A obligated himfeifto pay “o*e compeiipi to *Re(oIyed>tfcit pajment ««- tdkd h !u”> c/wls' ^ot ™ neceflity pre-«quifite to en-
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   OPINION of the Court, by

Ch. J. Boyie.

This was an action upon an obligation whereby the defendant bound himself to pay to the plaintiff a sum of money therein specified, whenever the plaintiff should he compelled to pay a note givon by her to Thomas Crawford. The defendant by his plea alleged that the plaintiff had not been compelled to pay the note given by her to Thomas Crawford, and issue was thereupon joined to the country. On the trial it was proved that the note from the plaintiff to Crawford had become due, but that it had not been in fact paid. The defendant then mov■ed the court to instruct the jury to find as in case of a ponsuit; but the court refused to give the instruction, and the defendant excepted.

According to the plain and unambiguous import of the language used in the obligation upon which the suit is brought, it is evident that the action could not have accrued to the plaintiff until the-payment of the note given by her to Crawford. To entitle her to an action upon the obligation given by the defendant, it was not indeed, as we apprehend, necessary that she should have been coerced to make payment of her note by Segal process. If she had made payment from a sense of moral duty, or from her legal obligation to do so, though without suit, she might at least figuratively, if not literally, be said to have been compelled to pay $ but in no sense of the term can she be said to have been compelled to do that which in fact she had not done. We are of opinion, therefore, that the court below erred in not instructing the jury as required by the defendant.

Judgment reversed with costs, and the cause remanded for new proceedings to be had not inconsistent with the foregoing opinion.  