
    James Collins and Selleck Osborn against Roger Cook.
    WRIT of error.
    
      Cook brought his action rof debt on a bail bond, given to him as deputy sheriff, the condition of which was, that whereas Osborn was arrested at the suit of John MlLean, to appear at the county court in Fairfield county, in November, 1807 ; if he appeared, See. the bond was to be void. The original defendants, after reciting the condition, pleaded in bar, that judgment was rendered on the 19th of November, 1807, and that, on that day, execution issued, returnable in sixty days, which execution was delivered to John R. Landon, sheriff, to execute ; that Landon lived in Litchfield, and Osborn in Boston; 
      that on the fifth of January, 1808, Osborn arrived in Litchfield, and then, with intent to surrender himself, rePaired to the house of London, and made inquiry for him, but he was absent from home; and from that day, until after the return day of the execution, Osborn resided openly in Litchfield, near London’s, and repeatedly repaired to London’s, with intent to surrender himself on the execution; that the person of Osborn was known to London¡ who also knew that Osborn was openly in Litchfield, but never arrested, nor demanded payment of him.
    
      A sheriff haring an execution against a person held to bail on attachment, may, af-terdue search, return it non est, before the expiration of sixty days, and it will be no defence to a suit upon the bond, that after the return, the' debtor was publicly abroad, and that known to the shexnit
    
      June, 1809.
    The plaintiff replied, that on the 22d of JVoyember, 1807, London with the execution made diligent search through his precincts (and particularly at the last place of abodp of Osborn, in Litchfield') for the body or property of Osborn, but could find neither, and made demand of Collins, (the bail,) who neglected and refused to produce the same, and said sheriff London continued to search from day to day therefor until the 2Qth of December, 1807 ; when he endorsed his return of non est inventus upon the execution ; but still retained it in his hands, until the first of January, 1808, and still continued to search for him and his property; and on that day, returned the execution to the office of the clerk in Fairfield, a distance of fifty miles. And from the date of the execution until the fifth of January, I8Q8, Osborn was not in the state, and had no property therein.
    To the replication there was a demurrer; and the superior court adjudged the replication sufficient.
    
      Gould and J. L. Smith, for the plaintiffs in error.
    By our statute, bail for appearance is not to be subjected until after a return of non est inventus. The intent of the statute, and the construction given to it, shows that this by the officer must be done reasonably, and not in a manner calculated unfairly and unnecessarily to subject the bail. To prevent this, there must bé a rule as to the time of return. And that rule must be Such as will give the bail all the tiriie for the surrender ° ... of the principal, which will be consistent with the safety of the officer. The sheriff should have a reasonable time to return his execution, and no more. And unless this rule is adopted, he may return the execution the very day it is issued. But he never ought to be permitted to return an execution Until his duty, or his safety requires it; neither of which required him to return this execution eighteen days' before it was out. A single demand of the bail is no more sufficient than keeping the execution a single day: if it were, the officer might make immediate demand, and then immediate return of his execution. But the officer must make search until it is his duty to make return; and when he is no longer bound to make search, he may return the execution.
    It is said, the bail must be prejudiced, or he cannot take advantage of an early return. But the bail is surely prejudiced, if the principal was in a situation in which he might have been taken, and the officer has not taken him. Such are the facts in the present case. The principal has been publicly about, for thirteen days, within the knowledge of the officer, actually calling upon him for the purpose of surrendering himself; and yet not arrested. The party could have had all he was entitled to, viz. the body of the principal, within sixty days after judgment, and the officer might have made the arrest, unless precluded by an act of his own, which ought not to prejudice the bail. Therefore, there has been no avoidance. It is said, that the principal should have been surrendered; but after the officer had made his return, a surrender could have been of no avail. The sheriff was, as to this, functus officio, and could do nothing more. In Fitch v. Loveland, Kirby, 380. it did not appear that the, principal was in such a situation that he could be taken; and the rule laid down, that it is as much the duty of the bail to surrender the principal, as of the officer to arrest him, is applicable only to the case of resistance by the principal ; and means, that it is as much the duty of the bail to overcome such resistance, as it is of the sheriff.
    
      Benedict and Beer a, for the defendant in error.
    The return of non est inventus has been regularly and fairly made by the officer. It appears, that the officer made demand of the bail for the principal, who refused to surrender him, without assigning any reason, or making any request of the sheriff to delay the return, or promising to surrender him at any future time. The sheriff, therefore, had no reason to expect that the bail wished to surrender him; and might, with propriety, have returned the execution immediately. But in this case, the sheriff has held the execution a reasonable time after this demand to enable the bail to make a surrender ; and if, after a return thus made, the sheriff was compellable to accept a surrender, the bail would have it in his power, by his own conduct, to entrap the sheriff. The sheriff having given the bail a fair opportunity to deliver the principal, was not bound to do more, even if he had not returned the execution. In strictness, the bond is forfeited by the neglect of the principal to appear at court; but the statute, out of tenderness to the bail, has also required that there should be a return of non est inventus on the execution. But the bail can have no reason to complain, after the principal has neglected to appear at court according to the tenor of the bond ; after a search for the principal, and a demand of the bail; and after a return of non est inventus has been regularly made.
    It does not appear that the bail was injured by the return of the execution; it does not appear that the debtor, or his bail, knew of the return of the execution; and yet there was no surrender of the principal to the sheriff, nor was he in á situation to be taken by the 
      sheriff. He might have been publicly abroad when the officer was absent, and out of the wav when the officer was at home; and it might have been absolutely out of the officer’s power to have arrested him, afler his return to Litchjicld: and, consequently, the return might have been fairly made, had the execution remained with the officer until the last day. In the case of Fitch v. Love-land, Kirby, 38Q. the bail was subjected, although the principal was in sight of the sheriff, and although a resolute officer might have taken him; for it is the duty of the bail to surrender the principal, as much as it is the duty of the officer to arrest him.
    
      
       Stat. Conn. tit. 1G. c. 1. s. 3.
    
   By the Court.

The question in this case is, whether the sheriff was justified in returning thp execution to Fairfield, after having- held it more than forty days, so as to subject the bail on his bond. By the terms o(f the contract entered into by the bail, he became liable, if he did not deliver up Osborn in court, at the time of the judgment rendered against him. By the statute, however, the right of the bail to deliver his principal exists after the time of the judgment, until a return of non est inventus is made. Ydhen this is done, the bail becomes liable, unless ire can show that it was unfairly made.

The inquiry is not whether after the return there was not so much time that the officer might have safely holden the execution longer, and then have had time to return it: but ihe inquiry is, has the principal avoided, and has the bail had a reasonable time to have surrendered up the principal, before the return of the execution ? In this case, the principal avoided, and lived in the town of Boston; and the bail having had forty days to surrender the principal, this, in the opinion of the court, is a sufficient length of time, and the return was fairly made.

Judgment affirmed.  