Opinion of the Court.

performance of their respective obligations. Mr. Justice BLACKBURN, in delivering the judgment of the court, said: "There seems to be no doubt that, where there is a positive contract to do a thing, not in itself unlawful, the contractor must perform it or pay damages for not doing it, although, in consequence of unforeseen accidents, the performance of his contract has become unexpectedly burdensome, or even impossible;" but takes the case out of the general rule on the ground that the parties in that case must have contracted with reference to the continued existence of the thing which formed the basis of the contract, on the principle of the civil law that such an exception is implied in every obligation of that char

acter.

The brig Casco, Davies' R. 184, illustrates no principle involved in the decision of this case.

Ames v. Belden, 17 Barb. 513, may be distinguished from the case at bar. There the action was on the charter-party containing equivalent words to those of the charter-party in this case, and it was held that a covenant to insure should never be implied; a covenant of that nature not appertaining to contracts of bailment.

Here the action is not on the charter-party, but upon a bond expressly conditioned for the performance of the covenants of the charter-party.

The case of Bacon et al. v. Cobb et al. 45 Ill. 47, is an authority against the position assumed by the appellant.

The court cites the case of School Trustees v. Bennett, 3 Dutch.. 513, which announces the well recognized principle that, where one of two innocent persons must sustain a loss, the law casts the burden upon the party who agreed to sustain it, or rather leaves it where the parties, by their agreement, placed it.

Such is the character of this transaction. Vogell and Crandall, by the terms of the charter-party, agreed to return the propeller at the end of the navigation season, and the appellant Steele, as their surety, expressly agreed, by the terms of

Dissenting opinion of JUSTICE SHELDON.

the bond, which is the subject of this action, that they should perform that covenant in the charter-party. The parties did not provide, by their contract, for any excuse in case of the destruction of the propeller by reason of any accident arising from inevitable necessity, and the law will not supply the omission for the contracting party. Having failed to make provision for their protection in case of disaster, the parties can not now set up, as an excuse for the non-compliance with the express terms of the bond, that the propeller was destroyed by the perils of the sea, and the evidence as to its destruction was properly rejected.

The mere fact that the vessel was insured for the benefit of the appellee, would constitute no defense to the action. Had the appellant offered to prove that the appellee had received the insurance money, it is conceded that no valid objection could have been interposed. He could have but one satisfaction for the loss of his property. This they did not offer to do. excluding the evidence ten

The court ruled correctly in dered, and the judgment must be affirmed.

Judgment affirmed.

Mr. JUSTICE SHELDON, dissenting: The destruction of the vessel offered to be proved in this case was by what may be properly termed, the act of God.

It seems to me to be a principle sustained by the authorities, that the obligor in a bond, in order to avoid the forfeiture of his obligation, is not bound at all events to perform the condition of the bond, but is excused from the performance where it has been rendered impossible by the act of God, or of the law. United States v. Thomas, 15 Wall. 337; Carpenter v. Stevens, 12 Wend. 589; The People v. Manning, 8 Cow. 296; The People v. Bartlett, 3 Hill, 570; Co. Litt. 206 (a).

No case which has come under my observation, limits the principle to any particular class of bonds, but it is laid down as a general principle applicable to bonds.

Syllabus.

The same doctrine has been applied to absolute express contracts by bailees and common carriers for the delivery of the thing bailed, or to be carried. Hyland v. Paul, 33 Barb. 241; Price v. Hartshorn, 44 N. Y. 95.

This bond was but to secure

the performance of such a contract by bailees.

In Taylor v. Caldwell, 113 E. C. L. R. 113 (3 Best & Smith, Q. B. 826), upon an elaborate consideration of the subject and review of the authorities, the principle is deduced that, in contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance.

Besides, the charter-party in this case contained a provision that the charterers should cause the vessel to be insured in the name of Buck, the owner, and that they, the charterers, should pay 85 per cent of the premium for insurance. This was done, or proof that it was, was offered.

Taking all the writings together, in order to ascertain the nature of the contract and the intention of the parties, this policy of insurance, and not the bond, would seem to be the kind of indemnity which the parties intended to provide against such a casualty to the vessel as the one that occurred.

AMANDA F. ARMSTRONG, Adm'x, etc.

V.

THE CITY OF CHICAGO.

1. SPECIAL ASSESSMENTS in the city of Chicago-publication of notice, by whom to be certified. The fact whether the publication of notice of an application for judgment upon a special assessment warrant was or was not certified by the printer or publisher of the newspaper in which it is claimed the publication was made, is open to proof.

Opinion of the Court.

2. So, where a certificate of that character purported upon its face to have been given by the publisher of the newspaper, but it was shown by proof that the person certifying was not the publisher until after the time of the publication, it was held, the certificate was insufficient to give the court jurisdiction.

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Mr. W. E. FURNESS, for the appellant.

Mr. M. F. TULEY, Corporation Counsel, for the appellee.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This is an appeal from the judgment of the Superior Court, rendered at the March term, 1871, upon a special assessment warrant for opening a street to be called Campbell avenue.

The collector's report, upon which judgment was sought, contained the certificate of publication of the notice of application for judgment, bearing date the 4th day of March, 1871, purporting to be signed by Henry C. Cook, publisher of the "Chicago Republican" newspaper, certifying that the notice was published in that paper ten times consecutively; that the date of the first paper containing the same was the 27th day of September, 1870, and the date of the last paper containing it was the 7th day of October, 1870.

The objection having been duly made in the court below, the appellant's counsel introduced evidence which stands uncontradicted, showing that Cook was not the publisher of this newspaper during the time of the publication of the notice in question, and did not become such until two months after the date of the first paper containing the notice.

The certificate of publication, and such notice, are required by the 13th section of chapter 9 of city charter (Gary's Laws 88) to be filed by the collector, with his report, in the court to which application for judgment is to be made. It is as essential to the jurisdiction of the court that the certificate of 23-61ST ILL.

Syllabus.

the printer or publisher of the newspaper be filed as that the collector's report should be. The fact whether the person certifying was or was not the printer or publisher at the time of publication, must be open to proof. If he was neither, the certificate is no better than if made by a person who never saw the newspaper in which the notice is alleged to have been published.

For this reason, and because the collector was not authorized to make application for judgment since the new constitution, the judgment must be reversed and the cause remanded. Judgment reversed.

LAWRENCE S. BEARDSLEY

v.

MARK W. HILL.

1. APPEAL-county court-how taken. Where the county court rendered a judgment, and the defendant filed in that court an appeal bond which was approved by the county judge before the expiration of twenty days: Held, the appeal was perfected, although the bond was not sent to the court to which the appeal was taken until after that time. An appeal taken from the probate court may be perfected in the same manner that appeals may be from justices of the peace.

2. Where an administrator appeals, and the condition of the bond recites that he is administrator, and at the end of his signature to the bond he adds "Adm'r," the court will not hold this is an individual bond of the administrator. A defect in the condition of such a bond must be objected to in the court to which the appeal is taken, to be availing. Such objection comes too late when made for the first time in this court.

3. COSTS-claim against an estate. Where the record fails to show when the administrator was appointed, the date of his letters, or that a term of court had been fixed for the adjustment of claims, or any evidence that defendant was administrator until the allowance of the claim, it will not be presumed that the claim was irregularly filed or that the costs were improperly awarded against the defendant.