Turner v. Bartlett , 109 Mass. 503 ( 1872 )

Chapmatt, C. J.

George T. Reed had been arrested on an execution and brought before a magistrate. On February 27, 1869, he entered into a recognizance, in the form required by the Gen. Sts. c. 124, with the defendants as his sureties, for his appearance within thirty days for examination, and from time to time till the examination shall be concluded, and to abide the final order of the magistrate. He appeared at the time appointed, and from time to time at several adjournments. The last time fixed for his continued examination was April 24, 1869, when he failed to appear, and he did not appear again, though the plaintiff appeared with his counsel to examine him. The condition of the recognizance was thus broken.

The defendants prove in defence, that a short time prior to April 24, Reed had been arrested on a warrant issued against him on a complaint for adultery and was committed to the jail of the county where he was held in custody till some time in May, when he was discharged. The defendants had knowledge of his default, but took no measures to bring him before the magistrate or to commit him upon his recognizance, so that he would be held in custody and in a condition to give a new notice, nor did they appear for him and move for a continuance as they might have done. Mann v. Mirick, 11 Allen, 29.

In Bigelow v. Johnson, 16 Mass. 218, it was held that the bail performed the condition by committing the principal to jail and notifying the plaintiff. Way v. Wright, 5 Met. 380, was scire facias against bail. It was held that the imprisonment of the principal in the state prison was no defence to the action, but that the bail might be relieved on motion because the principal had been taken from them and was detained by the act of the government. In' Fuller v. Davis, 1 Gray, 612, the court discharged the bail of one who had been committed as a lunatic to an insane hospital. In Hughes v. Wamsutta Mills, 11 Allen, 201, it was held that an arrest, conviction and imprisonment for crime would exonerate a workman from the duty of giving to his employers two weeks’ notice before leaving their service, under a contract by the terms of which he was bound to give such notice or not claim any wages due.

The general principle recognized in these cases is that if the act of the government prevents one from performing his contract, he will be excused or relieved from the performance. But in this case the defendants might have fulfilled their contract by leaving with the jailer who had Reed in custody a copy of the recognizance, and giving notice to the plaintiff, or might have appeared before the magistrate and probably obtained a continuance till Reed should be discharged. But they allowed him to go at large bo far as the plaintiff’s claim was concerned. His subsequent offer to appear before the magistrate and surrender himself was of no avail, for the magistrate then had no jurisdiction over him.

Judgment for the plaintiff.