The statute subjects the bail, in case of the principal’s avoidance, and a return of non est inventus on the execution; both which appears to have been done in this case.— But the defendant undertakes to falsify the return, alleging in his plea, that Jonas Prentis, the plaintiff’s deputy, who made the return, having the execution in his hands to levy, while it was in force, entered the dwelling-house of Ebenezer Dayton, the debtor, who had shut himself up in an inner room in said house, and the said Prentis, knowing that he was there, neglected to enter said inner room, and arrest his body, by virtue of said execution; and that it was in his power to have taken the body of said Dayton, etc.
The replication concludes with a traverse — “ That it was in the officer’s power to have taken the body of said Dayton;” which the defendant ought to have accepted, and put the fact to the jury, whether, under all the circumstances, it was in the power of said Prentis to have arrested the body of said Dayton; for the court .cannot infer the fact from the matters set forth in the pleadings. — ' A demand, and refusal to deliver the plaintiff’s property, by the defendant, may be evidence to a jury of a conversion; but it would not be a sufficient averment of a conversion in a declaration. So evidence that a bond for money has lain more than twenty *383years, without any demand of the money due, or payment of interest, may be sufficient for a jury to find full payment; but such an averment in a plea would not be sufficient to bar the action.-— Therefore, on this point, the law is in favor of the plaintiff.
It has never been adjudged, in any case in this state, within our knowledge, whether it be lawful or not, for an officer to break open either the outer or inner door of a dwelling-house, to arrest a person on an execution for debt, or on any civil process; nor do we know of any instance where it has been done by a sheriff or other officer: And we do not see any good or weighty reason for the distinction made in England between the breaking an outer door, or inner door, for that purpose;- — but that point need not be determined in this case. See Hobart, 62.
But the defendant hath taken an exception to the plaintiff’s declaration- — that it shows that the said Prentis returned the execution on the seventh day after thei date, whereas he ought to have held it till the expiration of the sixty days, and have used further endeavors to have taken Dayton, in exoneration of the defendant.— It appears by the declaration, that Prentis made an. in&Otsmenl on the, execution, of his repairing to Dayton’s dwelling-house, in Derby, to make demand of payment; which indorsement is dated the 21st day of March, 1786, which was seven days after the date of the execution: But it cannot be inferred from hence, that he returned the execution into the office of the clerk of the court the same day; nor has the averment of the return of the execution any necessary connection with the time of the indorsement; but he says, “ he duly returned it, etc. as by the files and records of said City Court, ready in court to be produced, fully appears.” And *384the plaintiff says in Ms replication, that he returned it into-the clerk’s office on the sixtieth day after it was issued; which, if not true, might have been disproved by the entry of the clerk, of the time of the return. But if it had been returned before the return day, the defendant could not take advantage of it, unless he shows that he was prejudiced by it, wMch he hath not; — and so it has been adjudged in several cases.- — ■ He was bound by his obligation to have the debtor in court, when called to answer to the suit, or on rendering the final judgment; and the defendant’s default of appearance is, at common law, a forfeiture of the bond. But in favor of the bail, the statute makes it necessary that execution be taken out and returned non est inventus, before the bail shall be charged; and when it appears that there has not been reasonable endeavors on the part of the creditor or officer, to levy the execution on the estate or person of the debtor, but rather an intention and endeavor to avoid doing it, in order to charge the bail; or if the bail render the body of the debtor, or he render himself to the officer, to be taken by the execution, at any time before the return day, the bail ought to be exonerated.
But if the officer is prevented from taking the debtor, by the debtor’s avoidance, or resistance, so that he cannot be arrested, without manifest peril and danger to the officer of Ms life, or some bodily hurt, and he thereupon returns die execution, with non est inventus indorsed, the bail, who is sponsor for the debtor, ought to be liable to satisfy the judgment; for it was as much his duty to render the body, as the officer’s to take it. But if the principal be arrested by virtue of the execution, and afterwards by force rescues Mm-*385self, and escapes, or is rescued by others, the officer cannot excuse himself from the demand of the creditor, by returning a rescous, or that be cannot do execution, because be bad power to have taken sufficient assistance; but the bail will be exonerated.