Fitch v. Loveland

Ellsworth, J.,

dissenting. In this case I have the unhappiness to differ in opinion from my brethren:—

By statute, bail is holden to respond the judgment only in case of the “ avoidance of the principal, and a return of non est inventus.” — Merely the return is not sufficient. There must be an avoidance in fact to justify it.— If the principal is to be found within the bailiwick, and under circumstances that he may be lawfully arrested, there is not that avoidance that will justify a return of non est inventus; and if such return be made, the bail, upon a scire facias, may falsify it.— The plaintiff in this case, cannot take advantage of his own or his deputy’s false return, if such has been made, to subject the bail, and exonerate himself.

From the pleadings, it appears — That the plaintiff’s deputy, while the execution was in his hands, and in force, was peaceably admitted into the debtor’s dwelling-house, whore he then was, shut up in a private room, which the officer then knew, and conversed with him; and there was nothing in his way, to hinder the levy, but an inner door, and the debtor’s threats, who had a stick in his hands, the size of a walking-catie. — After admitting these facts a traverse, “ that it was in the officer’s power to- arrest the debtor,” was, I apprehend, but traversing a legal inference, or question of law, and required no answer.

*386As to tbe threats, they could not excuse the officer’s neglect to levy: He was accompanied with two sheriff’s deputies, and might, if necessary, have called the .posse comitatus.— The sheriff may not return, that through fear, or want of strength, he cannot do execution.

With respect to the inner door — I think it was clearly the duty of the officer, after informing of his business, and demanding entrance, to have forced it open.— The statute of this state, subjecting the body in execution, as a mean of enforcing payment, privileges no place; it provides no asylum from a legal process; nor does sound policy at present seem to require any.— It is, indeed, an ancient doctrine of the English common law, that for the execution of a civil process, an outer door, or window, is not to be broke open; because of the danger and inconvenience that would result to the family, from being left open to thieves and robbers; which politically was considered a greater evil than postponing the process. Privileging the debtor who absconds from justice, in avoidance of a legal process, was not the object of the rule, though it has been a consequence of it.— This privilege, as it is called, introduced at first upon doubtful ground, and with some difference of opinion among the judges, has ever been construed with strictness and caution. — There is not a cUctwn in the English authorities of its extending to an inner door, but many resolutions, and one recently, the very strong case of Lee and Gansel, Cowp. 1, that it does not; — and I trust there has, been no resolution of our own extending it farther than the common law of England has done.— I conceive, therefore, that the inner door was no legal obstacle in the officer’s way, but that, hav*387ing peaceably entered the house, he might and ought to have arrested the principal; and consequently, that the bail is not holden.— Bail is highly favored in law, and I think the statutes for their saving should be liberally expounded.