Wilson v. Chase

The opinion of the Court was by

Emery J.

As there was no return made by any officer on the several writs of execution, which issued in favor of the plaintiff against Hoyt, the original plaintiff, whose writ the defendant indorsed, until nearly two years after the judgment, the defendant insists that he is thereby relieved from responsibility.

It is not necessary that avoidance and inability of the principal should both concur. If redress be sought properly for either incident, and duly proved, the plaintiff will be entitled to judgment. In Miller v. Washburn, 11 Mass. R. 411, the Court say, ££ although it may be reasonable to establish a limitation beyond which such liability shall not continue, it is not for us, but for the legislature to do it. ” In that case the plaintiff recovered his judgment in May, 1807, and on the 22d of August, 1812, issued his scire facias, but on execution issued on that judgment against Alden, whose writ Washburn indorsed, and Alden was committed to jail and afterwards liberated on taking the poor debtor’s oath. The time when he was committed does not appear, nor what previous return had been made on executions, nor when they issued.

Our Statute c. 59, $ 8, is almost a literal transcript of the Massachusetts provision on this subject. In Ruggles v. Ives, 6 Mass. R. 494, the solemn opinion of four justices, including Chief Justice Parsons, was given on the construction of the Massachusetts Statute in 1810, that to charge an indorser of an original writ, an execution must be sued within the year •; and that it must appear from the return that the principal has avoided, or that he is- unable to pay the costs by suffering his body to be imprisoned for not paying them.”

What execution can we suppose the Court contemplated as requiring a return, but one which issued within a year from the judgment ? And it was held that the defendant, who recovers costs against the plaintiff, whose writ was indorsed, ought to use reasonable diligence to recover the costs of the principal, the original plaintiff, before he shall have recourse to the surety, the indorser of the writ. In Harkness v. Farley, 2 Fairf. 491, an execution had issued and been returned in thee months in no part satisfied, and a second soon after issued and was returned by a constable of the town of Camden. It is distinctly stated by Parsons C. J. in delivering the opinion of the Court, in Ruggles & al. v. Ives, that as a reasonable endeavour should be used to compel payment of the costs from the original plaintiff, the execution ought to be sued out within a year after the rendition of the judgment for costs2 and not be delayed until obtained by a scire facias on the judgment after a year.

We cannot credit that the court intended to except a sort of byo play and concealment of an execution from an officer. But that they were supposing it should be seasonably delivered to one, who should make regular return of his doings on the process seasonably issued, to show that the creditor in the execution was adopting the ordinary course to obtain satisfaction. The mere suing executions out and retaining them in the creditor’s'or his attorney’s possession, without any other step shown by record in an officer’s return toward a recovery, if pursued for a greater length of time than one year and thee months, which would include the return day of the last execution issued within the year, would be as great a delay in respect of the indorser, as if the omission had been so long in suing out any execution. Such a course cannot be considered a reasonable endeavor.

The rules of evidence are framed and decisions made for practical purposes in the administration of justice. And “ though in the ordinary instances of suretyship and guaranty by contract, some notice of the principal’s default must be given to the surety before he is sued, there is no occasion to give such notice within any particular period ; yet in certain species of contracts, as bills, notes, &c. the drawers, payees and indorsers in general, are not responsible unless notice of non-payment has been given them within certain periods, at least with great despatch, not warranting any delay on the part of the holder.” And this arises from the conclusions to which Courts have arrived from a design to give to those instruments the most beneficial operation. The rights of persons collaterally responsible are not to be slighted, overlooked or abridged. Where should an indorser of an original writ look but at the clerk’s office, by inspecting the officer’s return, to learn whether any measures were adopted to collect an execution against the person whose precept he had indorsed? If no return of an officer were made on the successive executions, what more natural conclusion could be drawn than that the creditor, for some satisfactory reason, was contented, to wait and give time without seeking to enforce the collection ? The neglect to have such return is calculated to lull any person collaterally holden in the manner in which the defendant is, into security.

In preparatory proceedings to charge an indorser of writs, we deem it essential that there should be the record evidence of diligence in order to establish avoidance. For the purpose of showing the avoidance only of Hoyt, is this suit brought. And in our judgment, it should appear by an officer’s return on some execution issued within a year after the judgment, in order to show reasonable diligence on the part of the creditor, to recover the costs against the original plaintiff; and that parol evidence is inadmissible to supply this omission.

When an issue has been joined upon the plea of no capias ad satisfaciendum against the principal, the writ and sheriff’s return should be proved by an examined copy of the writ from the record, as the best proof of which the nature of the case is capable. Petersdorff on Rail, 369.

It is unnecessary now to consider the residue of the exceptions.

Exceptions sustained, verdict set aside, and new trial granted