8 Cow. 297 | N.Y. Sup. Ct. | 1828
The only question is, whether the sickness and death of the principal constitute a defence to this action.
The plaintiffs contend that this recognizance is analogous to that of bail in a civil suit, where the death of the principal after the bail are fixed, cannot be pleaded. I apprehend, however, that the cases are not analogous. Here the bail are not fixed. There the undertaking is, that the defendant shall pay, or surrender his body in execution, or that the bail will pay for him. Here the undertaking is simply to appear and answer. There is no certain liability upon the sheriff, merely because he was arrested upon an attachment. This attachment does not appear to be in the nature of a civil execution. The sheriff, on being brought into court, might have purged himself of the contempt, and had costs awarded to him. No such thing could happen to a defendant arrested on a ca. sa.
*xThe recognizance in this case, is more like a bond with a condition; a compliance with which has become impossible by the act of God. In such case, the non-performance is excused. No action lies.
This view of the case is supported by express authority. It is said, (in Co. Lit. 206, a.,) “ If a man be bound by recognizance or bond, with a condition that he shall appear 'the next term in such a court; and before the day the cognizes or obligor dieth, the recognizance or obligation is saved.” And the reason assigned is, that the bond or recognizance is a thing in action and executory, whereof no advantage can be taken until there be a default in the obligor ; and therefore, in all cases where the condition of a bond or recognizance is possible at the time of making the condition, and before the same can be performed, the con
It is said relief should be sought by motion. Perhaps might be obtained in that way;-but this is no. reason against pleading the defence, if it be a bar to the action, as I think it is.
The defendants are entitled to judgment
Judgment for the defendants.
This rule seems to prevail in case of special bail. (Bradford v. Earle, 4 Pickering, 120.)