"When the sureties in a recognizance, without their fault, are prevented from surrendering their principal by the act of God, or of the government of the state or of the United States, or by sentence of law, the supreme court, on petition and notice thereof to the county commissioners and state's counsel,
may discharge them on such terms as may be deemed just." P.S., c. 252, s. 30. Upon petition under this section by the sureties in a recognizance, the superior court found that the sureties. without their fault were prevented from surrendering their principal, and ordered their discharge. The order was not warranted by the facts found. To bring the case within the statute, the sureties must have made it appear, not only that they were prevented from surrendering their principal without their fault, but also that they were prevented by the act of God, or of the government of the United States or of this state, or by sentence of law. Neither fact is found, or could be found from the evidence. The principal was not impressed as a seaman or drafted by the government, but voluntarily enlisted. If by such voluntary act he has been enabled to depart from the state so that the sureties cannot reach him, his absence is due to his voluntary act, and not, as far as appears, to any act of the government of the United States. His absence is purely voluntary and affords the sureties no justification or excuse. "It was against that they they guaranteed the government; to prevent that they became responsible." State v. McAllister, 54 N.H. 156" court="N.H." date_filed="1873-12-15" href="https://app.midpage.ai/document/state-v-mcallister-8047857?utm_source=webapp" opinion_id="8047857">54 N.H. 156, 158. The causes named in the would be a good defence at common law to an action against the sureties. Goodwin v. Smith, 4 N.H. 29" court="None" date_filed="1827-02-15" href="https://app.midpage.ai/document/goodwin-v-smith-8503554?utm_source=webapp" opinion_id="8503554">4 N.H. 29, 30; Harrington v. Dennie,13 Mass. 93" court="Mass." date_filed="1816-03-15" href="https://app.midpage.ai/document/harrington-v-dennie-6404420?utm_source=webapp" opinion_id="6404420">13 Mass. 93; Belding v. State, 25 Ark. 315" court="Ark." date_filed="1869-06-15" href="https://app.midpage.ai/document/belding-v-state-6539618?utm_source=webapp" opinion_id="6539618">25 Ark. 315, — 99 Am. Dec. 214, note 216-218. The purpose of the statute does not appear to be to introduce a new ground for releasing the sureties, but merely to provide a convenient method of determining their liability. But whatever its purpose, it does not make the voluntary absence of the principal, without fault of the sureties, alone sufficient ground for their discharge. The recognizance was a contract between the sureties and the state for the production of the principal at the required time. The sureties upon an action for breach of this contract are not accused of crime. The proceeding is civil, and the state is entitled to its exception: State v. Kinne, 39 N.H. 129" court="N.H." date_filed="1859-07-15" href="https://app.midpage.ai/document/state-v-kinne-8046483?utm_source=webapp" opinion_id="8046483">39 N.H. 129, 137; S.C.,41 N.H. 238" court="N.H." date_filed="1860-07-15" href="https://app.midpage.ai/document/state-v-kinne-8046654?utm_source=webapp" opinion_id="8046654">41 N.H. 238. As no facts are found which, as matter of law, authorize the order of discharge, and no evidence was before the court upon which the facts necessary authorize the order could be found, the order made was erroneous and must be set aside.
Exception sustained.
All concurred.