30 How. Pr. 110 | N.Y. Sup. Ct. | 1865
The second answer of' the defendants which is demurred to, states in substance, that after the recognizance upon which the action is founded was entered into, the people, the obligees in the recognizance, by their legally constituted military officers held the principal in the recognizance, for whom the defendants were sureties, as a duly enlisted soldier under the call of the President of the United States for 500,000 volunteers, by his proclamation made July 18th, 1864, and that the principal was mustered into the service of the United States as such soldier after the recognizance was entered into, and was by such military officers prevented from attending court at the time and place required by the recognizance. These facts are admitted by the demurrer. The case is one, therefore, where the performance of the obligation of the recognizance was prevented and rendered impossible by the act of the obligee, and the sureties were consequently released
The call of the President for volunteers was authorized by act of congress (chap. 227, acts of 38th congress). The act was authorized by article 1, section 8, subdivision 14, of the constitution of the United States, giving power to congress to provide for calling for the militia to suppress insurrection, and subdivision 15, to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States. The state had, and is presumed to have exercised, the reserved right to appoint the officers commanding the militia. The officers of the state acting under its authority, are thus shown by the answer to have detained the principal in the recognizance, and prevented the performance of its conditions by the bail.
The order of the special term sustaining the demurrer should be reversed, and judgment should be ordered in favor of the defendants.
