McCluskey v. Brock

Lyon, J. The discharge of the defendants by the Court below, is in conflict with the decision of this Court in Alford vs. Irwin tried at Millodgeville, November Term, 1861. The identical .question made by this record, was settled in that case; that 'is, one who has given bond and security for his appearance at Court, to answer a charge of felony or other crime, must, nevertheless, perform military service when required. It is true that these defendants were bound for their appearance at Court, and that contract must be performed, if it is capable of being performed and legally may be. But when the policy of the State interferes and prevents the performance, the party will be excused.—Toutong vs. Hubbard ; Bos. & Pul. 301. The general rule by which Courts are governed, in the exercise of an equitable interference in these cases, is said to be this: that wherever, by the act of the law, a total impossibility or temporary impracticability to render a defendant, has been occasioned, the Courts will relieve the bail from the unforseen consequences of having become bound for a party whose condition has become so changed, by operation of law, as to put it out of their power to perform the alternative of their obligation, without any laches, default, or possible collusion on their part.—13 Price 529; in note, 1 Tidd’s Pr. 293. I state this as the general rule on the subject where the bail had been given before the party was placed, by operation of law, in a condition that might render the performance of his obligation impossible; but here, the parties entered into this obligation with a full knowledge of the duties to be performed that might conflict with their full performance, and for them there is no excuse. In this, as well as in all other eases of like character, if the legal disability to the performance of the condition of the bond ceases before a performance is required, and it is possible to perform it then, that must be done, or the penalty will be enforced.—Hadley vs. Clarke, 8 T. R. 259 ; 13 Price 525 ; 1 Tidd’s Pr. 293.