44 Barb. 118 | N.Y. Sup. Ct. | 1865
The second answer of the defendant, 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 defendant was surety, as a duly enlisted soldier, under the call of the president of the United States for 500,000 volunteers, by his proclamation made July 18, 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 performance of the obligation of the recognizance was prevented and rendered impossible by the act of the obligees, and the s.urety was consequently released from all liability. (The People v. Bartlett, 3 Hill, 570. Coke on Litt. 206 a. 8 Cowen, 297.) The performance of the obligation of the recognizance was also, according to the allegations of the answer, prevented by the act of the laxo, and the surety thereby discharged, (Co. Litt. 206 a.) The call of the president for the volunteers was authorized by the act of congress. (Chap. 227, acts of 38th Cong.) This 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 forth 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
Bocees, J. concurred.
James, J. dissented.
Judgment reversed.
jBodies, Bosehrans and James, Justices.]
