Howe v. Ransom

Prentiss, J.

delivered the decision of the court. In the argument, several exceptions have been taken to the sufficiency of the scire facias, on the ground of informality and duplicity ; but as these defects are not assigned specially as causes of demurrer, they cannot be noticed. The demurrer being general, the only inquiry is, whether the suit sets forth substantially enough to charge the defendant as bail.

It appears that the execution against the principal was issued and dated the 25th day of April; was put into the hands of the officer-the 9th of May, and returned into the clerk’s office the 19th of June, with a return of non est inventus thereon, dated the 13th of May. It is insisted that the return of die officer, which is set forth in the writ at length, is altogether insufficient, because it does not appear from it, that any search or inquiry was made by him for the principal after the 13th day of May, the day of its date ; and that, for aught that appears, the officer might have seen, and had an opportunity of taking the principal, in the 36 days which elapsed between that day and the 19th of June, when the execution was actually returned into the clerk’s office. Admitting this to be a just construction of the return, the question to be considered is, whether the return is not nevertheless sufficient.

The statute provides that bail upon an original writ shall not be liolden to satisfy the judgment which shall be rendered against the principal, unless execution is taken out thereon, and put into the hands of a proper officer within thirty days from the rendition of the judgment, and a return of non est inventus is regularly made thereon, within sixty days from the rendition of the judgment.— ( Com/p.'stat.p. 68, s. 29, 34.J The statute has not said how long the officer shall retain the execution in his hands, for the purpose of searching for the principal, or within what time, less than the sixty days, the return of non est inventus may be made. It requires the return to be made within sixty days from the rendition of the judgment; and it would seem, that if made at any time with-¡n that period, it would bo prima facie sufi ficient to charge the bail. To hold on demurrer to the writ, that the return, in the present case, is insufficient, we must be able to fix, as a matter of law, upon some determinate time, short of which tire return of non est inventus cannot be made $ and 1 do 'not see but that we should be obliged to say, that it can in no case be made, until the last day of the execution, which certainly has never been understood to be the law. In Ranlet vs. Warren, 7 Mass. 477, the bail pleaded in bar to the scire facias, that the execution was made returnable at an earlier day than by law it should have been. On demurrer it was urged in support of the plea, that an attempt had been made to fix the bail too soon, and that the return, being prematurely made, was no legal evidence that the principal was unable to satisfy the judgment, orjhat he was not ready to surrender himself to the officer,at the proper return day of the execution.But it was held, that the return of the officer was prima facie evidence of the inability of the principal to satisfy the judgment, and of his avoidance, and that the matter contained in the plea did not rebut that presumption In Collins vs. Cook, 4 Day’s Rep. 1, the officer having made search for the principal, and not finding him, returned non est inventus before the sixty days were expired; and it was held to be no defence that the return was made in forty days.

If the return of non est inventus may be made short of the last-day of the execution, shall it be at the end of ten, twenty, or forty days, or when may it be done ? If it would be good, if made at the end of forty days, how can we say, on demurrer to the writ, that it is not good, if made at the end of a less period of time ? If the return must be made after the lapse of a reasonable time, yet reasonable time, as a matter of law, cannot be affirmed of any particular period. What might be reasonable time in one case might not be so in another. It*is a question of fact, and not of law, and must depend upon the circumstances of the case. In Massachusetts, although'the length of time, that the execution shall be delivered to the officer, before the return, day is not prescribed by statute, it is settled by judicial decisions, that it must be in his hands so long, as that he may have, by diligent inquiry, a reasonable time and opportunity to find the principal. Yet in 12 Mass. 434, Stevens vs. Bigelow, a plea that the execution against the principal, was not delivered to, or kept by, the officer four days before it was returnable, was held to be insufficient. The court said that the law requires the plaintiff to use reasonable diligence to cause die body of the principal to be arrested, but that must depend upon the circumstances of the case; and they could not say, that in all cases, the execution must be delivered to the officer four days before the return day. In Edwards vs. Gunn, 3 Con. R. 316, where the execution against the principal would expire on the 29th of June, the officer made search for the body of the principal on the 19th of that month, and on the same day made his in-dorsement of non est inventus on the execution ; and on the 22d he returned it into the clerk’s office. It was determined, that although it was the duty of the officer to retain the execution in his hands a reasonable time, and to exert himself faithfully and diligently for the apprehension of the principal, yet that a return made at anytime during the life of the execution, was prima facie evidence of the avoidance of the principal, throwing upon the bail the burden of shewing that he was injured by such return ; and that if the execution was returned before the return day, and before the lapse of a reasonable time, the bail could take no advantage of it, unless he shew that he had been prejudiced by it.

It appears to be the plain and reasonable conclusion, that the return of non est inventus is prima facie sufficient, if made at any time within the sixty days. We say primafacie sufficient; for no doubt it is competent for the bail, if the return is made prematurely, to avoid the effect of the return by plea. In England, it being the common practice, when a plaintiff intends to proceed against the bail, to carry the ca. sa. to the sheriff’s office, and give directions to have it returned non est inventus, the return is considered as procured at the peril of the plaintiff, and is merely prima facie evidence of the avoidance of the principal. (Forsyth vs. Mariot, 1 New Rep. 251—Bucks vs. Maine. 16 East, 2,)— But as a regular return of non est inventus is here made necessary' by statute, in order to lay a foundation for proceedings against the bail, it may be more consistent, as well as a better doctrine, to hold, that the return cannot be contradicted in an action against the bail.—15 Mass. 230, Winchel vs. Stiles. But admitting the return to be concl usive, it can be so only as to the facts alleged in it; and in the present case, according to die construction given to the return by the defendant’s counsel, if the principal, after the 13th of May, the date of the return, and before the 19th of June, when the execution was actually returned into the clerk’s office, was publicldy abroad within the knowledge of the officer, and might have been taken by him on the execution ; or, if the execution was- returned pre-matur ely, and the principal' was surrendered' to the officer, at a reasonable time before the return day, though after return made,, the matter might have been pleaded in bar to the scire facias. As such a plea would apply to a time' not embraced in' the officer’s return, it would not be liable to the objection that it contradicted the return. Thiswould be a plain and consistent course, and afford ample security to the bail. But' if we should say on demurrer to the writ, that the return- in this case is bad, we must go the whole length of saying, that although the principal may have notoriously absconded, and was not within the officer’s precinct during the life of the execution, yet it was necessary for the officer, although the bail has sustained no damage, to have postponed his return, until the last day of the execution. Certainly, such has never been understood to be the law; and we are not aware of any reasons, either of justice, of policy, or expediency, which require that it should bo so,. A return made at any time within the sixty days must be prima facie good; and if it is made prematurely, and the bail is injured by it, he must show the matter to the court by plea, in order td avoid the effect of the return. As this has not been done in the present case, but the defendant has demurred to the writ, nothing appears why he ought not to be charged 5 and the plaintiff’s' writbeing sufficient, the judgment of the County Court must be reversed, and judgment entered for the plaintiff, unless the defendant move to withdraw his demurrer, and plcad-te the action, which will he allowed him on the payment of costs.

Ch. Phelps, for plaintiff.

Bradley, for defendant..

Judgment reversed.

After Judge Prentiss had delivered the opinion of the court, reversing the judgment ■of the County Court,