People v. Bartlett — 3 Hill & Den. 570

Majority

p. 570

The People vs. Bartlett.

Headnote

Where the performance of the condition of a bond or recognizance has been ren. dered impossible by the act of God,] of the law, or of the obligee, the default is excused.

Accordingly, in debt on a recognizance conditioned that R. should personally appear at the next court of. general sessions of the county of L. to answer to an indictment &c.; held, a good answer to the action, that, intermediate the date ofj the recognizance and the term of the court therein mentioned, R. was arrested and committed to jail in another county, where he was kept in confinement till after the day of appearance, &c.

Demurrer to plea. The declaration was in debt upon a recognizance dated November 17th, 1840, in the penal sum of $1000, conditioned that one Rowley should personally appear at the then next court of general sessions of Livingston county to be held in January, 1841, to answer to an indictment for grand larceny. The defendant pleaded, in substance, that, after the making of the recognizance and before the day of appearance therein mentioned, Rowley was arrested and commit

p. 571

ted to jail in the county of Allegany on a charge of grand larceny, and was there kept in confinement till June, 1841, when he was convicted and sent to the state prison at Auburn where he had ever since remained. Demurrer and joinder.

G. P. Barker, (attorney general) for the people.

W. H. Shankland, for the defendant.

I am of opinion that the plea is a good answer to the action. It is a general principle of law that where the performance of the condition of a bond or recognizance has been rendered impossible by the act of God, or of the law, or of the obligee, the default is excused. (Co. Lit. 206, a. ; Bac. Abr. tit. Conditions, (Q.) ; Vin. Abr. tit. Condition, (G. c.) pl. 18, 19, and (I. c.) pl. 16 ; Hurlst, on Bonds, 48 ; The People v. Manning, 8 Cowen, 297.) Where a man is bound for the appearance of W. N. in banco, if he die before the day, the bond is saved. ( Vin. Abr. tit. Condition, (G. c.) pi. 18, citing Br. Conditions, pi. 150, per Littleton.') There is a diversity, says Brian, Ch. J., where a condition becomes impossible by the act of God, as death, and where by a third person (or stranger) and where by the obligor, and where by the obligee ; the first and last are sufficient excuses of forfeiture, but the second is not; for in such case the obligor has undertaken that he can rule and govern the stranger, and in the third case it is his own act. (Id. pl. 19, citing Br. Conditions, pi. 127.) Baron Comyn lays down the rule, that the performance of a condition shall be excused by an obstruction of the obligee, or by an interruption of the performance by him. He adds : “ So, if there be a recognizance to the king for appearance, and the party is imprisoned by A. and B. who act by lawful authority of the king.” (Com. Dig. tit. Condition, (L. 6.))

Judgment for the defendant.