Viewing this as a question between the Plaintiff and the Defendant as an individual, and not as Sheriff, I think the Law is on the side of the Plaintiff i and I think it was correctly stated by the Judge to the Jury, in his charge, when he stated, “That if they should believe from the evidence, that the Plaintiff, then a prisoner, by Arrington acting for him and on his behalf, offered to give security for the bounds, and to have a bond written and executed, and had at the time the ability of giving sufficient security, and that Ricks, the officer, then declared that he would not admit the Plaintiff to the privilege of the bounds, and would not take any bond, this was, on the part of the officer, a waiver of any further act to be done by the Plaintiff, and rendered it unnecessary for the Plaintiff to have a bond wi’itten and executed, in order to maintain his action,” and I think Jones v. Barclay, (Doug. 684,) an authority in point.
I think the first part of the Judge’s charge more questionable : when he says it was the duty of the Plaintiff to furnish a bond to be executed for the prison bounds. It is certainly correct when applied to dealings between private citizens; but custom and the fitness of things require, that public officers, who are paid for their services, should furnish blanks to be executed by individuals who have business to transact with them in that character. Much and serious injury and inconvenience would he the consequence of a different practice : few men are acquainted with the forms necessary to be observed in drawing bonds which it is their duty to execute. The general, and, I had thought, the universal practice was, that Clerks, Sheriffs, and others, furnished the necessary papers appertaining to their official duties. From thi§ *430consideration, as well as from the ground first taken, as to the charge, of the Judge, 1 think the rule for a new trial should be discharged.
In transactions between individuals, it certainly is necessary that he who is bound by his contract, or even by law, to give a bond, make an assurance (such as he by his sole act can make,) an acquittance, or release, must make such bond, assurance, &c. j and it is not sufficient for him to shew that he was ready and willing to do so ; and if he does not do it in stating his excuse, he must, in general, shew that the Defendant either prevented the performance, or rendered it unnecessary to do the prior act by his neglect, or by Ills discharging the Defendant from his performance : these arc the words of Chitty, 317, 318, in his treatise on pleading, and which are extracted from the best authors, and are consonant to tiie rules of common sense. His ability to perform must also be shewn, otherwise the non-performance could not arise from the prevention, neglect, or discharge of the Defendant, but from his inability to perform. What amounts to a discharge, is matter of law $ but the fact from which the legal inference is drawn, is matter of fact. To constitute the discharge, it is not necessary that the word discharge should be used; any other word, or act, which goes to shew that the Plaintiff docs not require the act to be done, as that it is unnecessary, or unavailing, or that the Plaintiff would not accept of it, if done, is the same thing, and has the same operation, and the meaning of it is, I will not accept of it; it will profit you nothing: it will not be the basis of any act of mine, nor will you, by my act, obtain what you are seeking therefrom; it is perfectly useless and unnecessary for you to do it. The Law, which requires nothing to be done in vain, dispenses with the performance of the act: it amounts, therefore, to a tender and refusal. Notwithstanding the construction given to the case of *431 Jones v. Barclay, (Doug. 684,) I consider it an authority for the Plaintiff, except upon the point of an independent ability, of which, hereafter. The declaration states, that the Plaintiff offered to assign the equity of redemption and a release, and tendered to the Defendant a draft of the assignment and release for his approbation, and then and there offered to execute and deliver, and would have executed and delivered the said assignment and release to the Defendant, but that the Defendant absolutely discharged the Plaintiff from executing the same. The Defendant pleaded that the Plaintiff never did execute air assignment of the said equity of redemption, &c. to which plea the Plaintiff demurred. This demurrer of the Plaintiff put, not only the validity of the Defendant’s plea, but the goodness of his own declaration, to the test3 and if the facts set forth in it were not sufficient to support his legal inference, to-wit, that the Defendant discharged him from the execution and delivery of the assignment and release, the declaration is bad 5 for a declaration is a compound of facts and legal inferences : it is the province of the Jury to pass upon the facts, and of the Court upon the legal inferences. The decision of the Court upon the demurrer was, that the declaration was good, thereby affirming that there was no necessity of making and sealing the assignment and release, but that an offer was sufficient, if the Defendant refused to take any assignment or release 3 that is, that the refusal to take any assignment or release, dispensed with the necessity of making one3 for why should one be made which is to enable the Court to see that it is a good one, when none would do: but the counsel says, this was on a demurrer where the facts are admitted — .What facts ? Only those set forth 3 and the demurrer varies it from an issue in this only, that the Court at once judges upon the cor rectness of the legal inference made by the declaration, the facts being admitted: on an issue, the facts are denied 3 but when on an examination found to be true, the *432Court must see, when passing judgment, that the legal inferences are correct; and in the case in Douglas, the same question would have arisen, if the Defendant’s plea had been found by the Jury to be true; for by the judgment given to the Plaintiff, the Court thought it no answer to the Plaintiff’s declaration, for its truth was omitted by the Plaintiff’s demurrer. So far as regards this part pf the case, the facts stated in the record amount to a discharge if true, provided it appears that the Plaintiff shews that he had the ability to perform, which the counsel for the Defendant contends, means the independent power to perform the act; and this is true where the act to be performed is one capable of being reduced under his absolute control, as in a tender of money, or a horse. It is not sufficient to shew that his friend was standing by, ready to lend the one or the other, if the Defendant would agree to receive it: the things are in their nature capable of being placed entirely within the control of the person making the offer, and his being in that state, with regard to them, shews his inability to go farther, for the things are capable of being more within his control; but when he is to bind himself, with security, as a free agent is to be bound with him, and he has that security present, and willing to become bound, a moral certainty would seem to be sufficient; and if he is prevented by the discharge of the Defendant, I think it would seem to follow, that the non-performance arises from the discharge of the Defendant, and not from the Plaintiff’s inability to perform the act. I repeat it again, a moral certainty bf being able to perform is sufficient. It is said, this mighfbncourage spurious offers ; that men would agree to be security merely to entrap another : the Defendant may avoid all harm by being merely passive,- or by agreeing to receive the thing which he was bound to receive. There is no necessity of refusing, or discharging the Plaintiff from the tender ; and whether this was a delusive tender, was properly left to the Jury; and also, *433whether Arrington acted as the friend or agent of the Plaintiff, or merely as the enemy of the Defendant, Vick. I am also induced .to believe, that however the law may be between individuals, that whenever an officer is required to make his official conduct depend on his taking or receiving a bond from a person, that it is his business to prepare one : custom and convenience require this; he is presumed to know the laws and the forms peculiar to his office, better than a mere individual: a contrary practice would lead to oppression; and although in this case no fee is fixed, from which it may be inferred that it was not his duty, it is either, I think, a casus omissus, or it is included in his extra allowance: nor need we apprehend vexatious applications any more than in cases of bail, where it cannot be controverted that he is bound to furnish the bail bond, for he has a fee for it5 for it is on his taking bond, and not for furnishing the bond, that the fee is due; and the Sheriff might be equally vexed by the applicant’s omitting to sign the bail bond, for no fee would then be due. To avoid these inconveniences and oppressions, I think, on sound principles, it is the officer’s duty to furnish all official bonds, and that the Sheriff now alleges, with a very bad grace, as an. excuse for not giving the bonds, that it was not his business to prepare the bond, when he at the time declared that he would not take any bond. We should be well satisfied that this after-thought of the Sheriff furnished a good defence; and if it was not an after-thought, he is guilty of a foul fraud in misleading the Plaintiff.
Per CuRiAM„- — Let the rule for a new trial be discharged.