#### JOHN ASHCRAFT *vs.*YOUNG H. ALLEN.

A Sheriff, from whose custody a prisoner confined for debt had escaped, a-with B. that if he would rctake'the prisoner and deliver him at the county town within a certain time, he would pay him $400 — B. took the prisoner and had him under his care, within the time specified, at his own house- some miles from the County town, intending to deliver him to the sheriff, when the sheriff went to thehouse of B. and seized the prisoner himself. In an action by B. against the sheriff, *Held, first*that the contract was not illegal; *secondly,*that the sheriff having prevented the plaintiff from literally performing his contract, while he was in the progress of doing *so,*was-answerable to him for the stipulated sum.

Appeal from the Superior Court of Law of Anson County at Pall Term 4843, his Honor Judge Battle presiding.

This was an action of assumpsist, in which the plaintiff’s counsel, in opening the case, stated that he declared on a special contract in writing, of which the following is a copy, viz.

*ss.*“ *State of North Carolinaf*Anson County,

This is to certify that I am to pay John Ashcraft four hundred dollars for the delivery of his brother James Ash-craft to me, in Wadesboro’ between this and September next, this 1st May 1838. (Signed bythe defendant) T. II. Allen.”'

The plaintiff then called as a witness one *Redfearn,*who testified that the defendant was sheriff of the County of An-son during the- year 1838, and, as such, had one'James Ashcraft, a brother of the plaintiff, in his custody in the public jail of his county — that the witness was then a deputy of the defendant, and heard him say that James Ashcraft had broken jail and made his escape — and the witness- saw him at his, James’, house, and the plaintiff his brother with him, but he could not state at what time this took place;

*James Ashcraft*was then called for the plaintiff, andstat-edlhathe was confined in the jail of Anson County for debts-*97amounting in the whole to ten or twelve thousand dollars — that he made his escape therefrom by breaking the jail without the knowledge, contrivance or assistance of any other person — that after escaping he resolved upon going to Alabama, and with that purpose went to take leave of his father and mother and his own family — -that he first met his brother, the plaintiff, at his father’s, and informed him of his intention of going to the South West — that in a few days afterwards his brother came to him in the woods, near his, the witness’, house,, and shewed him the written contract above recited, and told him the defendant would be bound for his debts, unless he was re-taken — that he then refused to surrender himself, but after some further conversation, told his brother that he intended to go on through Camden and Columbia in South Carolina, and that, if his brother would meet him the next day at a place he designated in South Carolina, he would tell him his final determination with regard to the surrender of himself — that his brother did meet him at the time and place appointed, and he at last agreed to surrender himself to his brother, upon condition that he should be permitted to go home and see' his family, before being delivered up to the sheriff — that he arid his brother, then, after remaining in the woods alt night, went together to the house of the witness, where they arrived the next morning — that, finding one of his children very sick, he requested his brother to permit him to remain at home until the next morning, which his brother consented to do, and remained with him — that,' during this time, he considered himself the prisoner of his brother, though he was not confined in any way — that eáii'y the next morning, before the witness had got up, the defendant Came in company with three o:r four other persons,some of whom were armed, to the house of the witness-, and, as soon as he had dressed himself, entered the room Where he was and said “I am glad to see you, you must go with me to Wadesborough” — that the plaintiff then stepped into the room and said, “no, he is my pris'oner, and I am going to take him to Wadesborough” — that the witness requested them to wait until he could have breakfast, but the defeiv *98dant insisted upon setting off immediately, and they all went Wadesborough — that the plaintiff went in company with the defendant and his attendants, and, after entering the town, said to the defendant, *“l*now surrender you my brother” ; to which the defendant replied, “I have had him all along”, but the witness said he had been his brother’s prisoner. This witness stated further, that the plaintiff persuaded the witness to surrender, and,overcome by his persuasion, he consented to surrender himself as the prisoner ot the plaintiff, to be by him delivered in Wadesborough to the defendant, provided the plaintiff would permit the witness first to go home and visit his family — that this was in the spring of 183S — that the witness was returned to the jail in about a fortnight after he had escaped. This witness also stated that the contract above recited is the same, which the plaintiff exhibited to the witness in the woods — that he had no knowledge oft his contract until it was exhibited to him in the woods, nor had he any reason to expect that any such contract: would have been made by the plaintiff.

The plaintiff here closed his case, when the Court intimated an opinion, that the action could not be sustained ; in submission to which the plaintiff submitted to a judgment of nonsuit.

A motion was subsequently made to have the nonsuit set aside and a new trial granted, the plaintiff’s counsel alleging that he was entitled to recover,either upon the ground that he had performed his part of the contract, or that, if he had not done so, he was prevented by the act of the defendant himself, and' that at all events he was entitled to recover upon a count for a *quantum meruit.*The Court held that *if the*action could not be sustained upon the special contract, it could'not be sustained at all, and that a count upon a *quantum mreuit*would not now be allowed without the defendant’s eonsent, which was not *given*— that the plaintiff had not proved'a compliance with his part of the contract, which was essential to the maintenance of his action — that his permitting his brother to go home and remain there a day justified the defendant'in taking him himself, and, having done so, *99the plaintiff had no longer any claim to compensation under the contract. The court held further, that, if it were contended for the plaintiff, that under the contract he had a right to give his brother ease, then the contract was against the policy of the law and void. The motion for a new trial being over-ruled, the plaintiff appealed.

No counsel for the plaintiff in this court.

*Strange*and *Mendenhall*for the defendant,

cited Platt on Gov’ts. 137. Powell on Con, 370. Hurleston on bonds, 31. Shep. Touch. 375.

EuffíN, C. J.

It is needless to enquire,, whether there was evidence fo sustain a count for a *quantum*meruit, since there was no such count in the declaration, and the Court had, undoubtedly, the power to refuse permission to add it.

It is likewise true, that, as the action is founded on a special agreement, whereby the defendant bound himself to pay a stipulated sum of money on the performance of a precedent act by the plaintiff, the latter cannot recover without shewing a performance of that act, or a sufficient excuse for its non-performance. His Honor was correct in holding, that the plaintiff had not shewn a compliance with his part of the contract, by performing the precise act to be done by him ; for he did not deliver John Ashcraft to the defendant in Wadesborough, and the sheriff, no doubt, had the right to retake his prisoner, and did retake him, before he was brought to him “in Wadesborough.”

But the Court is, nevertheless, of opinion, that it was -not correct to nonsuit the plaintiff. Of the credibility of the testimony the jury are the judges ; and there was evidence tending to shew, and, if believed, showing that that the plaintiff was in the course and progress towards the performance of the condition on his part, and would have performed it literally according to its terms, if he had not been prevented by the act of the defendant himself. That is always sufficient; for he, who prevents the performance of a thing, of whieh he-is to have-the-benefit,-cannot insist on any ad*100vantage from its non-performance. In such a case the act cons’dered as done, as far as respects the rights to arise' upon its performance to him who was to perform it. An a-verment) therefore, in the declaration, that the plaintiff had retaken the prisoner and had him in his power and custody, with the intention to carry him to Wadesborough and there to deliver him to the defendant, and that he could have so carried and delivered him and would have done so, but that the defendant took the prisoner from the power and custody of the plaintiff, snd thereby hindered and prevented him from making the delivery, supported by due proof, would, in our opinion, entitle the plaintiff to recover. To hold otherwise is merely sticking to the letter, without regard to the substance, of the agreement, and would occasion the evasion of the clearest stipulation by tricks and subterfuge. The real object of this contract was to enable a sheriff to retake ar debtor who had escaped, and thus save himself from heavy liabilities; and he supposed that the plaintiff, either by his influence with his brother,-who was the debtor, orby other means, could bring about thatend — for which, if he could and would, the sheriff agreed to pay him a reward. But, in the agreement, a time and place of performance are specified, on which, indeed, the defendant has a right to insist, as a condition ¡but not so to insist on it, as to defeat the rights of the other party, notwithstanding the agreement has been substantially performed by the other party, and the defendant has had the same benefit from it, as if it had been a literal performance. Suppose the defendant had accepted his prisoner from the plaintiff at his home in the country, it cannot be disputed but that would be the same as a delivery in Wadesborough. Suppose that, learningthattheplaintiffwas bringing his broth-to town for the purpose of delivering him, the defendant had met them just out of town, and, as he had a right to do, had then taken the debtor into *his*own custody, the same .consequence must follow. It is the same thing in the events that happened, except that the evidence is not so plain and convincing, that the plaintiff had, in fact, the power over debtor, and, with the power, the will tp restore him to the *101imprisonment from which he had escaped. But as to the credit due to the evidence, or the inference from it as to the" purposes of the plaintiff — they fall to the province of the jury to be decided. We apprehend also, that there is nothing in the policy of the law, to forbid such a contract as this ; nor to impeach the right of the plaintiff under it, on the score, that he gave ease to the debtor. That is a question between the creditors and the sheriff; and the acts of the plaintiff would not have affected it at all. The plaintiff was not the defendant’s deputy, nor had from him any authority whatever; and, therefore, his acts did not induce any responsibility on the sheriff. The rights of these parties grow out of the stipulations of the agreement between them ; whereby the plaintiff undertakes, if he can, by his own authority or influence, to place his brother again in the power of the sheriff: and, upon his doing so within a time specified, the sheriff engages to pay him so much money. As between them, the law enforces no’diligence more speedy than that for which they contracted. If, indeed, the plaintiff would not deliver the prisoner before the sheriff was able, of himself, to take him, he would lose his bargain; because the sheriff does, certainly, not depart from his own right to retake him, and he might exercise it for his own security, provided only, that he did not thereby stop the plaintiff from fulfilling literally his part of the agreement, which he had fulfilled substantially.

Per Curiam, Judgment reversed and *venire de novo.*