Ringeman v. State , 136 Ala. 131 ( 1902 )

MeCLELLAN, C. J.

It is settled law in this State as well as many other jurisdictions that sureties on a bail bond can only be discharged from liability by the appearance of their principal according to the condition of the recognizance or by some intervening act of God, or of the law of the State, or of the obligee which renders the performance of that condition impossible. — Cain et al. v. State, 55 Ala. 170; State Crosby, 114 Ala. 11; 2 Am. & Eng. Ency. Law, 717; Tylor v. Taintor, Treasurer, 16 Wall. (U. S.) 366; Piercy et al v. The People, 10 Bradwell (Ill. App.), 219; Devine v. State, 5 Sneed (Tenn.), 623.

No act of the law nor of the obligee is pleaded to the scire facias in this case, nor, indeed, is any act of God pleaded, as we shall see; but it is pleaded that the principal after the bail piece had been entered into was so ill of consumption that it became necessary to the preservation or prolongation of his life for him to go to and remain in the state of 'Colorado, that he went there and remained there upon the advice of skillful and competent physicians under the necessity stated, “that at the time the forfeiture was taken he was still suffering from the aforesaid malady, that a return at that time from the altitude of Colorado to Alabama could not have been made without serious detriment to his health or without imminent danger to his life, and that he was so advised by his physician, that said defendant is jet suffering from the same cause as aforesaid and is still in Colorado being there detained on account of the disease from which he has long been and still is a sufferer.” This plea does not aver impossibility of appearance by the principal resulting from an act of God. His death in such case would have been the act of God in legal contemplation, but illness, however severe and critical, is not, (Taylor v. Taintor, supra; Piercy et al. v. People, supra; Scully v. Kirkpatrick, 21 Am. Rep. 64) ; and surely his going and remaining out of the jurisdiction under the circumstances and for the purpose stated is not only not the act of God, but involved no impossibility of appearance regardless of the cause to which it may be attributed. And apart from the foregoing considerations the plea, even upon the theory of the defendant, is bad for that it does not aver that his condition was such at the time of the return term of the scire facias that he could not then have appeared in Hie Circuit Court without imminent peril to his life. Non constat but that the “permanent improvement” referred to in the plea had by 'that time taken place so that he might have returned with immunity. — Cain v. State, supra. The question is not one of humanitarianism, but one of cold law arising on a demurrer to the plea; nor was it below nor is it here addressed to the discretion of the court. The Circuit Court properly sustained the demurrer.

Affirmed.