The opinion of the court was delivered by
— 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
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
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-
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
Judgment of the county court reversed.