*38The opinion of the court was delivered by
Peck, J.
The question' arises upon special demurrer to the replication.
The declaration counts specially upon a town order for $300 dated January 16,1864, drawn by the selectmen on the treasurer of the town, and by him accepted. No question is made as to the sufficiency of the declaration.
The plea alleges that the promises mentioned in the declaration, wore made upon consideration that the plaintiff would enlist into the military service of the United States for the term of three years from the 2d day of January, 1864, or during the war for the suppression of the rebellion (unless sooner lawfully discharged), as a volunteer from this state to the credit of the defendant town on its quota, for which the town promised to pay the plaintiff $500, of which the defendant town has paid $200 ; and that the plaintiff did so enlist on the 21st day of December, 1863, and was mustered into service January 2, 1864. Thus far the plea shows that the plaintiff has performed all which is alleged as the consideration of the defendants’ promise. The plea is, therefore, bad, unless it is helped out by the subsequent averments. 'Immediately after the allegation that the plaintiff enlisted and was mustered in, the plea avers that the plaintiff thereby promised the town to serve as aforesaid, unless sooner discharged, and that the selectmen drew the order for the balance of the $500 upon the consideration of the plaintiff’s promise as aforesaid, and that be-foi’e the plaintiff’s term of service expired, and before the close of the war, he willfully deserted the service, to wit, August 2, 1865, and never afterward returned thereto, whereby the consideration of the order wholly failed. These allegations add no new fact to what was previously alleged, so far as the contract and consideration are concerned. It is only an attempt to draw a legal conclusion from what was previously alleged, and still leaves the plea in this respect to stand, so far as the facts are concerned, upon the previous allegations of the agreement of thei plaintiff to enlist and be mustered in, and the fact that he did so enlist and was so mustered in. The question, then, is whether, by legal construction , the contract to enlist for three years and be mustered in, *39is a contract with the town to perform the entire service, and whether deserting the service before the end of the term, is such failure of consideration as forfeits or defeats his right of action. The contrae^ of enlistment and the being mustered into service, is certainly not in terms a contract with the town. It is a contract between the soldier and the United States. The consideration of the contract between the plaintiff and the town, was not that the plaintiff should perform three years’ service as a soldier in the United States army, but that he should enter into a contract with the United States to perform that service, and be mustered in, under that contract, to the credit of the town. The detrime'nt to the plaintiff, if any, in performing his part of such contract with the town, is that by enlisting he binds himself, by a contract with the United States, to perform the service, and to endure the hardships and incur the perils of the service for the term of his enlistment. The benefit the town is to receive, is to have the plaintiff applied on the quota of the town, and thus to be relieved so far from the obligation of the town to furnish men under the call. This obligation of the plaintiff to the United States was fully assumed, and this benefit to the town was fully accomplished, when the plaintiff was mustered into service. It is said the town has an interest in the full performance of the three years’ service, because the desertion of soldiers may lead to the necessity of a call for more men, under which call the town may have to bear its proportion. But the town has no more interest in having the plaintiff servo his full time, than it has in any soldier who enlisted to the credit of any other town or to the credit of any other state, performing his full term of service. It is only an interest common to the people of the whole country. The breach of the plaintiff’s contract with the United States, by desertion, is no more detriment to the town than the desertion of any other soldier in the United States army. We think, as the plaintiff performed his contract with the. town, the town can not avail itself of a breach of .the contract with the United States, to defeat the plaintiff’s right of action. That is. a matter between the .plaintiff -and the United States. For the breach of that contract the plaintiff must answer to the United -States. government. The government may inflict *40sucb pains and penalties as it sees fit, for sucb breach, and it rests entirely with the government, to inflict, or remit and pardon sucb offenses. We can not say that, in addition to answering to the United States for sucb offenses, the plaintiff shall forfeit all benefit under bis contract with the town, which be has fully performed. But if the town could on equitable grounds set up such defense at all, as the desertion is not a breach of the contract with the town, the town could avail itself of it only to the extent of the failure to-perform the service. So that, in any view, the plea is bad ; for, béing pleaded to the whole declaration, it must be a complete answer to the whole action, or it is a bad plea. The performance of the entire service can not have been intended as a condition precedent to the right of action, as the order is payable on demand. The statute of 1864 (p. 26, § 3) does not aid the defendants, as that can not be construed as intending to cut off a right of action already perfect when the act was passed, even if the legislature had power to do so. The plea being bad, this is sufficient to reverse the judgment and warrant judgment for the plaintiff.
But it may not bo improper to dispose of some of the questions made upon the replication. It is insisted, that the replication, which sets out the votes of the town to pay a bounty to soldiers, in pursuance of which the order was given, is a departure from the declaration. But the votes are not set forth as a new cause of action, but to fortify the declaration against the attack made upon it by the plea, by showing that the order was drawn in pursuance of,the votes. It is insisted, that the plea sets up a different contract from that indicated by the votes, that is, an agreement with the town to perform the three years’ service in consideration of the bounty, and that the plaintiff ought to have traversed the plea, and not replied a different agreement from that set out in the plea.
But it has already been said, that the facts set forth in the plea, do not amount to an agreement with the town to perform the three years’ service. The replication is not a departure from the declaration. The plaintiff had a right to admit the facts set forth in the plea and reply new matter. It is claimed that the replica*41tion is double, as it sets forth the votes entitling the plaintiff to the bounty, and also alleges an assignment of the order for a valuable consideration, and that the suit is prosecuted for the benefit of the assignee. As this order is not negotiable, probably the assignee takes it subject to the defenses that the defendants rely on in the plea, and is in no better condition than the payee. The rule of pleading is, as the defendants claim, that two distinct answers can not be set forth in one replication. But a series of propositions, all necessary to constitute an answer to avoid a plea, may be so set forth. It is a rule, that in pleading surplusage does not vitiate. It is sometimes difficult to distinguish between duplicity and surplusage. In such cases, whether pleading is obnoxious to the objection of duplicity, depends much on the construction of the pleadings and the obvious purpose for which the allegations are inserted. If the defendants’ plea were held to be a good defense as against the nominal plaintiff, if he still owned the order, and not good as against the bona fide assignee, then the replication clearly would not be double. As we hold, the plea not good as against the original payee, the allegation of the assignment may be treated as surplusage.
In the view already taken of the plea and the replication, it is unnecessary to decide whether the allegation in the replication that the order was delivered and accepted in full payment and satisfaction of the bounty, and a receipt executed to that effect, would be an answer to the defense set up in the plea, if that defense would otherwise prevail.
Judgment reversed, and judgment that the replication is sufficient, and judgment for the plaintiff for the amount of the order and interest.