delivered the opinion of the Court as follóws.
Several questions might be raised upon the pleadings in this case, but the decision of the cause in favor of the defendants upon either of the pleas in bar will entitle them to judgment. Without particularly examining the merits of the second plea, we are satisfied that the third contains matter sufficient in Jaw to bar the action, and that the causes, of demurrer are of no importance. The language of the 2d sec. of the statute of 1821, ch. 67, is peremptory. It declares that “no return of non est inven- “ tus made by any officer on any execution shall be considered as “ evidence of the debtor’s avoidance, so that the bail may be ren- “ dered liable on scire facias, unless such officer shall certify on “ such execution that he has had the same in his hands at least “ thirty days before the expiration thereof.” The third plea, in the language of the act, denies that there was any such certificate indorsed on the execution against Hodgdon — and the demurrer admits the truth of the plea, if well pleaded. We consider the causes of demurrer assigned as having no connection with this *13plea, whatever connection they may have with the second; for although the bail bond was not returned, still the declaration avers that bail was duly taken; and though the names of the bail were not inserted in the margin of the execution, still these circumstances could not excuse his omission to make the certificate by law required, if the fact would warrant it; if he could not make the certificate with truth, it was the plaintiff’s own fault in not placing the execution in his hands in due season; — if he could, he may be answerable to the plaintiff for the neglect, and the damages thereby occasioned. We therefore consider the third plea good and sufficient. As to the second we give no opinion.
The plaintiff considers the new and special provisions of the statute of 1821 as inapplicable to the present case, in as much as Hodgdon was committed to prison six days before the bail bond was given; and that in its language it has reference only to those cases where bail is taken before commitment, because the first section requires the bond to be returned to court, with the origi nal writ, by the officer who served it; whereas the bail bond after commitment may not be taken till the return day is past, and then it cannot be so returned. Still, as the provisions of the act were introduced for the benefit and protection of the bail, and to guard them against any improper management on the part of a creditor with a view to implicate them; we are inclined tó give a liberal construction and apply the provisions in the same manner in both classes of cases, because the reason, equity and design of those provisions are the same in both.
The plaintiff in his writ has treated the defendants as bail duly taken; and they have not placed their defence upon a denial of that fact in either of the special pleas in bar, but claim the protection which the statute of 1821 has provided for them as such ; if they are not bail according to law, then the plaintiff has no right to the present process of scire facias against them; and if they are, then they must be so considered throughout. In this light we consider them, and accordingly they are entitled to judgment for their costs.