
    Williams Bradford versus John M. Earle.
    
      Oct. 5th.
    
    On scire facias against bail, it is no defence that the principal died, though after the return day of the execution, yet before it was actually filed in the clerk’s office.
    
    This was a scire facias against the defendant as the bail In a suit of the plaintiff against one Brazer. Judgment was rendered against Brazer on the third Monday of June, 1825, and execution was issued on the 30th of that month, returnable on the 29th of August following, and delivered to a deputy sheriff of Worcester.
    The defendant pleaded that Brazer died before the execution was in fact returned. The replication denied that fact, and issue was joined on it to the country.
    It appeared that Brazer died on the 18th of September, and that the execution was returned into the clerk’s office soon after the 1st of November, and after it was reported in Worcester that Brazer had deceased. The officer’s return bore date of the return day.
    The plaintiff objected to the admission of paroi evidence to prove the time when the execution was in fact returned. If upon the whole matter the Court should think the plaintiff entitled to recover, the defendant was to be defaulted ; other wise the plaintiff was to become nonsuit.
    
      ■A. Denny, for the plaintiff,
    contended, that independently of the objection to the evidence, the facts proved did not constitute a defence. The condition of the bail-bond is forfeited by the principal’s avoidance and a return of non est inventus; and whether the execution shall be actually filed in the clerk’s office or not, is immaterial. St. 1784, c. 10 ; St. 1803, c. 132 ; Hunt v. Coxe, 3 Burr. 1360; Rawlinson v. Gunston, 6 T. R. 284; Boyland v. Crooke, 2 Sellon’s Pract. 55.
    
      J. Davis and Mien, contra,,
    said the material question was, whether Brazer died before the return of the execution into the clerk’s office ; for that the bail is not fixed, until there is evidence of record of the avoidance of the principal. Champion v. Noyes, 2 Mass. R. 481; Com. Dig. Bail, Q 5, R 5; 1 Bac. Abr. 342, Bail in Civil Causes, D.
    
    Oct. 9th.
    
      
       The sickness of the principal so that he could not be removed without endangering his life, at any time after judgment was recovered m the original action, to the time of the return of non est inventus, with the fact, that he died after such return and before the trial on scire facias, was held not to ex onerate the bail. Goodwin v. Smith, 4 N. Hamp. R. 29.
    
   Per Curiam.

The filing of the execution is an immaterial fact. Though it should remain in the hands of the officer, yet that would be no objection to the scire facias against,the bail, if the proper return is made. The object in putting the execution in the clerk’s office is, to preserve it as evidence for the benefit of the parties. See the case of Prescott v Pettee, 3 Pick. 331.

Defendant defaulted. 
      
       See also Welsh v. Joy, 13 Pick. 477; Emerson v. Towle, 5 Greenl. 197.
     