
    Uriah H. Orvis v. The town of Isle La Mott.
    An officer cannot be permitted to amend a return of non est inventus, after the life of the execution has expired.
    
      Quoire ; Whether such a return is indispensable in any case, except for the purpose of charging bail.
    In all cases of non est inventus returns, it is sufficient for the officer to return the substantial facts, without a strict compliance with the established ,forms.
    
    This was an action on the case against the defendants for the neglect of their constable in not taking bail on mesne process. Plea, general issue, and trial by the court.
    Upon the trial, in the county court, it appeared, that on the thirteenth day of March, 1833, the plaintiff prayed out a writ of attachment in his favor against one Thomas P. Reynolds, of Isle La Mott, made returnable on the 29th of March, 1833, before a justice of the peace, and delivered said writ to Minos McRoberts, who was then constable of Isle La Mott, for service ; that said constable served said writ by arresting the body of the said Reynolds, but neglected to take bail for his appearance to respond the judgment, or commit him to prison ; that such proceedings were had in said suit that it was appealed to the county court, in the county qf Grand Isle, and ^ ^0 ]y[ay term thereof, 1838, the plaintiff recovered a judgment therein, against the said Reynolds, for one hundred dollars damages and fity-nine dollars and twenty-one cents costs; that on the seventh day of May, 1838, the plaintiff prayed out a writ of execution, of that date, upon said judgment, against the said Reynolds, in due form of law, directed to the sheriff of Grand Isle county, and on the 15th day of May, 1838, within thirty days from the rendition of said judgment, delivered said writ of execution to Harry B. Mott, sheriff of said county, to levy and collect, and that the said sheriff, afterwards, on the 30th day of June,1838,within sixty days from its date, returned said writ of execution to the office of the clerk of said court, with the following return theron endorsed:—
    “ Grand Isle County, ss. 7 I then made diligent search
    “ Alburgh, June 27, 1838. 5 for the body of the within
    “ named defendant, leg, but could not find it to levy this ex. “ nor property. I therefore return this ex. unsatisfied.
    “ Attest, H. B. MOTT, Sheriff.”
    . It also appeared that said Reynolds left this State in April, 1837, and that he had never returned, but resided in the State of New York.
    The plaintiff moved the court for liberty to the sheriff to amend his return on said writ of execution, but the court refused to allow the amendment, on the ground that the interest of third persons would be thereby affected.
    Upon the facts above stated, the county court rendered a judgment for the defendants and the plaintiff excepted.
    
      G. Harrington for plaintiff.
    The county court should have permitted the officer to amend his return.
    The return, although informal, still was sufficient to show that the officer intended a return of non est inventus.
    The amendment required, was only to make the return formal, and not in the least to contradict it.
    The case shows the truth of a non est inventus return, that is, that Reynolds was not in the State during, the life of the execution. The length of time, since the return was made, is no objection to the amendment. Big. Dig. p. 70 and 71, G. - for defendants.
    
      1. The return of the sheriff on the execution is not sufficient to charge the town.
    2. The return cannot be amended. The liability has now become fixed either upon the sheriff, or the town of Isle La Mott; if upon the sheriff, be cannot, by amending his return, shift the the liability from himself to the town.
    The return is matter of record and when made, cannot- be amended. ¡
    
   The opinion of the court was delivered by

Redeield, J.

— If we concede that the return upon the writ of execution in favor of the plaintiff against Reynolds, was informal and void, it by no means follows that the defendants are not liable. The return of non est inventus, is required, by statute, in the case of bail only: As in the present case, no bail was taken, it is difficult to perceive how a formal return could be important. If the execution was taken out and put into the hands of an officer, so as to give the defendants an opportunity of surrendering the debtor,it is all that could be reasonably required. But the court below considered the return of non est important, and decided in favor of the defendants, on account of the alleged defectiveness of such return.

The plaintiff indeed moved the court to permit the officer, who made the return, to amend it on trial. This was denied and very justly. That process was not then before the court, for the former suit, and every thing pertaining to it, had long before been determined. The record and proceedings in it, could therefore no more be amended, than if that suit had been pending in another court. Fletcher v. Pratt, 4 Vt. R. 182. It is obvious, too, that if the return is important, as a regular non est inventus return, it must have been perfected within the life of the execution, or it could be of no avail. Turner v. Lowry, 2 Aiken’s R. 72. At what time within the life of the execution it was made, is not important. Howe v. Ransom, 1 Vt. R. 276. But it must be perfected within that time, and actually returned into the office from which it issued. So that it is apparent no amendment could avail the plaintiff in the present case.

But, on inspection of the return, in the present case, we are all of one opinion, that it is sufficient, even for the purposes of charging bail, strictly. The sheriff of the county returns thus: — “ Grand Isle county ss., Alburgh, June 27th, 1838. I then made diligent search for the body of the within named defendant, (leg.”) It is not stated indeed where this search was made; but where will it be intended ? In some adjoining county, or in his own precinct ? Surely the latter. It is only by an unnatural and forced construction, that any doubt could be raised. The sheriff proceeds, “ and could not find it.” Could not find what? Why surely the defendant’s body; for the sentence continues, “ to levy .this ex. nor property, I therefore return this ex. unsatisfied.” Language could hardly make the import of the return more obvious. And when from the return it is made clear, beyond doubt, that the officer had made search throughout the proper precinct, both for goods and the body, and could find neither, nothing could be more unsound and unwise than to raise a doubt, by a forced intendment, and thus avoid the return.

Judgment of the county court reversed and new trial granted.  