ACT OF GOD
2. Where the law casts a duty on a party, the performance shall be excused, if it be rendered impossible by the act of God; but where the party, byhis own contract, engages to do an act, it is deemed to be his own fault and folly that he did not thereby provide against contingencies, and exempt himself from responsibilities in certain events and in such case, (that is, in the instance of an absolute general contract the performance is not excused by an inevitable accident, or other contingency, although not foreseen by, nor within the control of the party. Chitty on Contr. 272, 8; Aleyn, 27, cited by Lawrence; J. in 8 T. R. 267; Com. Dig. Action upon the Case upon Assumpsit, G; 6 T. R. 650 ; 8 T. R. 259; 3 M. & S. 267 ; 7 Mass. 325; 13 Mass. 94; Co. Litt. 206; Com. Dig. Condition, D 1, L 13; 2 Bl. Com. 340; 1 T. R. 33; Jones on Bailm 104, 5 ; 1 Bouv. Inst. n. 1024.
3. Special bail are discharged when the defendant dies, Tidd, 243 ; actus Dei nemini facit injuriam being a maxim of law, applicable in such case; but if the defendant die after the return of the case and before it is filed, the bail are fixed. 6 T. R. 284; 6 Binn. 332, 338. It is, however, no ground for an exoneratur, that the defendant has become deranged since the suit was brought, and is confined in a hospital. 2 Wash. C. C. R. 464, 6 T. It. 133 Bos. & Pull. 362 Tidd, 184. Vide 8 Mass. Rep. 264; 3 Yeates, 37; 2 Dall. 317; 16 Mass. Rep. 218; Stra. 128; 1 Leigh's N, P. 508; 11 Pick. R. 41; 2 Verm. R. 92; 2 Watt's Rep. 443. See generally, Fortuitous Event; Perils of the Sea.