
    The People against Manning and Condit.
    On demurrer to the plea. The declaration was in debt on a recognizance in the penal sum of $150. acknowledged on the 5th of January, 1827, before one of the judges, of the common pleas of Seneca county. The condition was that Josiah B. Chapman, late sheriff of that county, who was then arrested on an attachment, should appear before the justices of the supreme court, at the capítol in the city of Albany, on the third Monday of February then next, to answer for certain trespasses and contempts. The declaration sets forth the recognizance, averring as a breach, nonappearance at the day. The defendants pleaded, that on the first day of February, 1827, Chapman was taken violently sick, and was confined to his house and bed, and could not be removed therefrom, and continued sick till the 22d of March, 1827, when he died.
    
      Where til ghherofabona or recognizance, becomes impossible of performance by the act of God, or of the law, or the obligee, or conusee, performance is excused. X g. a sheriff’s recognizance to appear on attachment, where he is sick at the day, and afterwards dies.
    
      Demurrer and joinder.
    
      J. H. Bathbone, in support of the demurrer.
    The bail became fixed by the non-appearance; and the plaintiff had the same right to his action as he would have had against special bail for not surrendering their principal. In that case, the death of their principal after they are fixed, is no answer to an action on the recognizance. Their only remedy, if any, is to move the court. (1 Archb. Pr. 281; 4 John. 407; 4 East, 102. The recognizance being broken, *it became forfeited and absolute; and being estreated, the cognizors become absolute debtors for the sum orpenalty mentioned. This is the reason, as in case of special bail, why they cannot obtain a release, except by application to the grace of the court, in proper time. (1 Chit. Cr. Law, 92, and the cases there cited. . Crown Gire. Comp. 23; 2 John. 104.)
    
      Asgill Gibbs, contra.
    There is no difference between this recognizance and a common bond, except that the former is of record. (2 Bl. Com. 841.) It is not like the case of special bail. There the condition is, that the party shall surrender or pay, or, in default of both, the bail shall pay. But here the condition is simply to appear. Even in case of special bail, it is conceived that if the principal be sick, yet to be found by the sheriff, the bail cannot be made liable: for the sheriff cannot return non est inventus. He ' must return a languidm. That would not fix the bail. In •, . „ . . . , truth, a recognizance stands on the footing of a bond as to performance; and where that becomes impossible by the act of God, the performance is excused, and there is no forfeiture.
   Ouria, $>er Savage, Oh. J.

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¿lition becomes impossible by the act of Grod, or of the law of the obligee, there the obligation is saved. Ibid, .

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.)
     