Fuller v. Howard

The opinion of the court was delivered by

Mattocks, J.

— The first question presented is upon the motion to dismiss the action for want of jurisdiction in the county court; upon the ground that the action was not appealable from the justice.

There seems little doubt that the appeal was properly granted. The wording of the ten dollar act, as it is called, is different from the acts that give jurisdiction to justices. The latter is “ debt or matter in demand” — the former is “ where the sum demanded does not exceed ten dollars.” What can this be but the ad. damnum ? and so it is believed to have been uniformly construed. The plaintiff therefore has his election, when his debt or matter in demand is really under ten dollars, to make the case appealable or not, by the amount of his ad damnum; and if made appealable, it is so by both parties. Whether this wording of the act was intentional — the evil intended to be guarded against being the appealing of small cases by the defendant, the plaintiff being already sufficiently cautioned against appealing, by the after costs being restricted, — or from the uncertainty in many cases what the amount of the debt or matter in demand really is, or from accident, we know not. But it is evident that there is a clear difference in the expression of these statutes, the former, meaning what ought to be demanded, and this, what in fact is demanded.

The question raised by the declaration and plea is whether, when a defendant who resides in, and is set up of a town in one county,is attached and procures bail in another county, in which the writ is made returnable, a non est, made by an officer in such other county, is sufficient to charge the bail. And this question, so far as I know, has not been decided by this court. Some allusion has been made to the English practice, with a view to elucidate this point. But as a ca. sa. from Westminster Hall is usually directed to the sheriff of Westminster, and, when sent to other counties, suggestion is made that the defendant is “ lurking” there; and as “ there is no attempt in point of fact to find the principal on the ca. sa.; but it is merely as a warning that the plaintiff means to proceed against the bail, or rather the ca. sa. against the principal, being left at the sheriff’s office, is as notice to the bail that the plaintiff will proceed against the person, and it is incumbent on the bail to search whether any ca. sa. is left in the office.” — 4 Bur. 1360: — and in King’s Bench, after one sci. fa. with scire feci returned, or two sci. fa. with nihil, (1 Institutes, 272,) and no surrender, the bail is fixed: — it being regulated by rules of court, which vary in the different superior courts, and as the taking and charging the bail here is regulated by statute, there is not a sufficient analogy between the cases to aid in the decision'. ■ The decisions in Massachusetts have been cited. The case of Brown vs. Wallace, (7 Mass. R. 208) is a per curiam case, and merely says that “ it had long been a settled practice to deliver the execution to the same officer who took the bail.” This was quite sufficient to settle that case; but as it was only a question of practice, it is not of great weight here. And the other Massachusetts case is bottomed mainly upon their usage, with the ” addition that a non est by an officer in either county would be good. The operative clause in our statute is, “ which execution shall be taken out within thirty days from the time final judgment shall be rendered, and put into the hands of some officer proper to levy and serve the same.” Who then is an officer proper to serve the same? This is very indefinite, and quite open to construction. Does it mean any sheriff or other officer who has power to levy an execution ? Then the creditor may send the execution to an officer in the most distant county in the state, where the defendant does not dwell — where the writ was not served, and where the court was not holden. Does it mean an officer in the county where the defendant resides, or where the writ was served, or where the judgment was rendered ? (because he may be presumed to be in some of them.) And it being uncertain which, and the execution cannot well be sent to more than one, the plaintiff may elect which, and then the principal must watch in these counties, lest he should not be found on the execution. If an officer of the county where the writ was served, or where the principal lives, can make the non est, then the choice is with the creditor, and he might send it where it was most likely the defendant was not, in fact. If the creditor was bound to give it to an officer where he thought, or where it was most probable the principal was, then, there would be no certain rule, and the plaintiff might lose his debt by misjudging, or the plaintiff’s intent would be often put in issue, if an officer of the same county where the arrest was made may and must have the execution. Then comes a train of inconveniences : the debtor must go to jail when arrested, in a county distant from home, and wait for the execution; or if he gets bail, he must be surrendered in court, which may be in a county in which he neither lives nor was arrested, or remain in custody of his bail, who may reside in still another county, or lurk in the county where arrested sixty days to hear from the execution, or go home and return at the peril of the bail, to the county where he was arrested, and if he can find what officer has the execution, present himself. But if a person, after being arrested in a distant county from his home, and giving bail should be attached in other counties and give bail, thed ifficulties would be so multiplied that it would be hopeless for him to attempt to clear all of the bail. Many of these supposed cases are only possible — some are probable; and the case at bar, if decided for the plaintiff, would be certainly productive of this consequence.

As a debtor may not only be arrested, if found out of his county, on a writ or execution,- but, in consequence of an arrest on a writ, if poor, he is bound to go dr be carried to a distant county to be committed upon the execution, with no possible benefit that can be perceived to a creditor; and as New England is perhaps the only place where a person can bo held to bail on a preliminary process, not only on a claim of debt without oath, but in all open or damage actions, in order to preserve the benefits of this singular privilege — the construction of the attachment statutes ought to be so benign to the defendants, as to make the system tolerable; as this numerous class includes the unfortunate, as well as the negligent and shuffling debtor. Arrests are often made upon claims that turn out to be groundless. Who then is a proper or most proper officer to whom the execution should be delivered ? Most obviously an officer of the county where the defendant resides: at the debtor’s house,- if within the precincts of the officer, the law makes it his duty to repair and demand payment of an execution. At home a person is most likely to be found: there his property is most likely to be, which he has a right to turn out in lieu of 1ns body ; and if not at home, the call would indicate in whose hands the execution was, and enable the debtor to get information and present himself to the officer in time to save his bail; and if not, it would allow some ground for the officer’s certificate of “ diligent search” in his return of non est, which the officer in another county could not have, as there would be no particular place to look for the debtor. The sheriff would of course make a formal non est return, without looking any where. This would not be so fair notice to the bail as by the English practice, where he can always inquire at the sheriff’s office. But here the sheriff knows nothing of execution delivered to his various deputies. In this particular it would not be as objectionable to deliver the execution to a constable who had served a writ on an inhabitant of another town in the same county ; for in that case, there would usually be but one person’ to be inquired of whether the execution was given out. But in such a case, though scarcely distinguishable from this in prin-c*P^eJ it would be obvious that by the creditor’s delivering the execution to a town instead of a county officer, his intention would be not to have the principal found on the execution.

In Eng^an& the bail stipulate in the triple alternative, that the defendant, if he is condemned in the suit, shall satisfy the plaintiff for his debt and cost, or that he shall surrender himself a prisoner, or that they will do it for him. — Jac. Law Die.

Here the second condition seems to be, that the principal shall be found on the execution; for withour a return on the execution that he cannot be found, the bail is not chargeable, and the right given by statute to the bail to surrender the principal on the originol suit, is the privilege, not the duty of the bail: therefore, the only essential condition or stipulation that the bail enters into — the non-performance of which is to make him liable— is that the defendant shall be found on the execution, not that he be surrendered: that is, that the plaintiff may have the defendant’s body, if he wishes, on the execution. Why then should he not manifest this desire, as in other cases, by sending the execution where defendant resides ? Why not take the same ordinary means to arrest the defendant, as if there were no bail ? Can the statute mean less diligence ? But, here it is said that the principal is supposed to be in the custody of the bail: then, where the bail lives, would seem to be the proper place to send the execution. But though this supposition is but a legal fiction, and where the ancient authors say the bail has the principal as by a string, it must be to shew his right to control and hold the principal — not the actual possession of him: Else, why the right to take him on Sunday — break open houses, &c. ? Is it upon the principle of an escape ? However this may be, it cannot but be known that, in point of fact, no such custody commonly exists: and the statute seems not to have gone upon this ground ; for, as he need not be surrendered in court, if produced when called for, on this hypothesis why not require a demand of the bail like that of the receipt-man of property attached ? There is one provision of the statute which has been cited, and but one, that looks, at first view, as though the intention of the legislature was that the execution should go to the county where the arrest was made. It is the provision that the the bail may pray out a warrant upon his bail-piece against the principal, and the officer may commit him to jail either in the county in which he was arrested on the original process, or in the county in which such process is pending. From this, it might seem that the act supposed these were the only counties where the principal could be arrested; but the first part of the sec-' tion somewhat impairs the force of this argument, where it says, “ when the surety shall have occasion to take the body of the principal, to surrender him in court in discharge of his bail, either on the original process, or upon the scire facias, or to secure him in prison in vacation, until the session of the court, in which he may be surrendered as aforesaid,” then he may have a warrant. Now neither of these cases supposes he is kept to be found or surrendered on the execution, but in court.— Therefore the point in question was not probably in the mind of him that drew the act; and the county where the original action was brought, was evidently the only one in which he could be surrendered in that action, and why the other county was mentioned, is not evident: it might have been upon the supposition that the bail would probably live in the county where the arrest was made, and upon the general law that suits must be brought in the county where one of the parties live, the scire facias must be brought in one of the two counties named, without it having occurred at the moment, that scire facias is a judicial writ, and must be brought where the original record remains. But at most, this part of the statute has rather a remote and but inferable bearing upon the question. What the general practice has been in this state, we are not fully apprised; if we were, and it bad been long and uniform, it would be of great weight in a case of this sort. Perhaps it has not been uniform. But it is believed to have been the most common to send the execution where the defendant resides, as set up in the writ. Therefore, to hold so now, will not be overturning any settled practice: and the wording of the act, to say the least, not being against such a construction, we believe the true construction of the law is, that the non est should, in this case, have been made by an officer in Orleans county, where the principal at, and after the arrest, resided, and was open and at large, during the whole life of the execution, and of course could have been taken thereon.

Judgment of the county court reversed.

Judge Coll ame r dissenting.