This was an adjourned Case from Randolph Superior Court. The Plaintiff brought As-sumpsit against the Defendant for one hundred dollars, upon a special agreement, that the Plaintiff should, as a substitute for the Defendant, perform a six months’ tour of duty in a Company of Militia then about to march to Norfolk ; for the performance of which duty, the Defendant agreed to pay the stipulated price above mentioned. There was a Case agreed, on which the Superior Court adjourned it, and Judge White delivered the opinion of this Court as follows :
This was an action on the Case, brought by the Plaintiff to recover money which he claimed as due to him for services rendered by him to the Defendant as his substitute in the Militia during the late war.
It appears by the Case agreed, that the Defendant being drafted to serve a tour in the Militia, did contract to give the Plaintiff the sum of money claimed by the declaration, for performing that tour for him, “ upon his return from performing the same.” The Plaintiff was received, mustered, and enrolled as his substitute, marched, served part of the time, and then deserted: and then claims by this action his hire, insisting that as he exonerated the Defendant, *it was nothing to him whether he did, or did not perform his duty to the United States. But the Court is of opinion that the Defendant, when contracting with his substitute, had a right to make it a part of his contract, that such substitute should perform for him, the duty he owed to the United States, with good faith, and that in this case he did make that performance a condition precedent to the payment of the money, and do therefore adjudge, that the Eaw upon the Case agreed, is for the Defendant.