dissenting: The destruction of the vessel offered to be proved in this case-svas 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.
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.