Alford v. Irwin ( 1864 )

Lyon, J.

Is the fact, that one is charged with a felony, or other crime, to answer which, he has given bond with security for his appearance at Court, a protection to such person or his bail, against the demands of the Government upon him to perform military service? We hold that it is not. It is a question, alone, for the Government to determine, whether it is most important to the public interest that such- person should go into the seivice for the defence of the country, or remain at home to answer the charge. The Government having determined to put him into the service in performance of a duty that he, in common with other citizens, owes to the country, it does not lie in his mouth to say that by reason of his being charged with a crime, to answer which he has given his bond, he is not liable. Heither has his bail the fight to his custody against the claims of the Government for the performance of military duty, although they do pos^sessthp right to his custody as against himself, for the reason, that if, in consequence of the performance of this military service imposed on the principal by the' Government, he is unable, or should fail to appear at Court in performance of the condition of the bond, that is an ample reply or defence to an attempted forfeiture. It is a legal excuse for the nonappearance.

“ The bail to the action are excused.from the performance of the condition of the recognizance by the act of God, or by act of law, as, by his, (the principal) being under sentence of transportation, or impressed into the King’s service.” — 1 Tidd. Pr. 289. “ If a party contract to do any thing, he shall be bound to the performance of his contract, if from the nature of that contract it is capable of being performed, and legally may be performed; but when the policy of the State intervenes and prevents the performance of the contract, the party will be excused.” — Toutong vs. Hubbard, 3d Bos. and Pul. 301. Brewster vs. Kitchen, 1 Ld. Ray. 321. French vs. Shirley, 1 Doug. 45. Harrington vs. Dennis, 13 Mass. 93. Reed vs. Hoskins, 82 E. C. L. 979. Bayley vs. Fettiplace, 7 Mass. 325. Melville vs. De Wolf, 82 E. C. L. 842.