
    Windham County,
    February Term, 1828.
    
      Gardner Howe vs. Epaproditus Ransom.
    
    
      Á return of'execusioii non at inventus-, made at any timo within sixty days, is prima facie good to charge the person who had become bail for the debtor on the original process.
    If such return be mada prematurely, and the hail is thereby injured, he mtist shew the matter to the court by plea, in order to avoid the effect of the return.
    This was n:i nofion-oí scire facias against the defendant who had become bail for one Leonard Brown, by|endorsing his name onjthe back of an original writ in favor of the plaintiff against the said ' Brown, agreeably to the 28 th and 29th sections of the Judiciary act (page 66 of Rev. Laws.) The declaration stated, that the writ of attachment against Brown was sued out oh the 15th day of October, 1825, and made returnable to a justice of the peace, on the 25th of the same month- — That said writ was given to an officer to be served, who on the ISth. of the same month, by virtue of said writ, arrested the said Brown : and thereupon tire said Ransom became bail and surety for the said Brown, that he should appear in the said suit of die said How, and respond tire judgment which should be therein obtained, if any, by endorsing his name on the back of said writ according to the statute — That a judgment was afterwards rendered in said suit for the plaintiff— that an appeal w-as taken thereform to the County Court, and that finaljudgment was rendered for the plaintiff by said County Court, at April Term, 1826, for $'73,59 damages and for $-7,73 cost— That afterwards, on the 25th dajr of April, 1826, the said How took out an execution on said judgment for the sums aforesaid, dated on tile sanie day, duly signed by file clerk of said court, and returnable within sqtty days from its date — That within thirty days from the rendition of the last aforesaid judgment, to wit, on the 9th of May, 1826, the said
    
      How, delivered said execution to James Mack, deputy sheriff within and lor said county of Windham, to serve and return— that afterwards, at Brattleborough, in said county, on the 19th day of June, 1826, and within sixty days from die rendition of said last mentioned judgment, the said deputy sheriff returned said execution into the office of the clerk of said County Court, with his return thereon legally endorsed in these words: “ Wind-“ham County,ss. Townsend, May 13, 1826. Then with this execution,! repaired to the usual place of abode of the within named “ Leonard Brown,wad there made demand of goods or chattels to “ satisfy the same and my fees; but none were shewn to me, nor “could I find, by the most diligent search through my pre- “ cincts, either the body of the said Leonard Brown, or any “ estate whereon to levy and satisfy this execution.
    “ Attest James Mack, D. Sheriff.”
    
    There was an averment in said declaration, That for a long space of time, to wit, fromthe 9th day of May, to the 19th day of June next following, the said James Mack, deputy sheriff as aforesaid,made diligent search within his precincts for the body or property of the said Leonard Brown, whereon to satisfy said execution, but that he could no where, within said precincts, find either the body or property of said Brown, whereon to satisfy the same— That said judgment yet remained in full force, &c.
    To this scire facias there was a general demurrer, and joinder in demurrer. The cause was tried by the County Court at September Term, 1827, and a judgment was rendered that the declaration was insufficient. The cause was ordered to pass to the Supreme Court for a revision of said judgment.
    
      Bradley, in support of the demurrer. This demurrer was taken, because, it is by law the duty of the officer to make reasonable search during the time die execution is in his possession and it, should appear by his return that he has done so. By the return in this case, it appears the search was made only on one day, being 36 days before he delivered the execution into the clerk’s office, and that no return is made as to those 36 days.
    1. This the bail contends is a return neither “legally” (siat.p, 
      66, s. 29,) nor “regularly” made, (stat. p> 68, s. 34.) The debtor might have been publicly in the precincts, and even have been in company of the' officer more than four weeks while the execution was in his possession, and this return have been true : and therefore no action for a false return would have lain in favor of the bail. The statute requiring the execution to be placed in the hands of the officer within 30 days of its date (stat. p. 68, s. 34,) is for the' benefit of the bail — but would be defeated if this mode of return should be sanctioned.
    2. The defect in the return is not mended by the Subsequent averment. 3. The fact of return must appear of record to hold the bail. 2. Such record must be complete in itself. — 11 Mass. 234. 3. The return of non est inventus cannot be made up partly of a matter of fact, and partly of a matter of record, because it would require two different modes of trial to one fact.
    3. The practice in England and JVew York is understood not to be applicable here. But even there, the execution must be lodged in the sheriff’s office the last 4 days before the return day, by way of notice.
    
      Ch. Phelps, for the plaintiff. If the principal, after judgment against him, does neither pay the condemnation money, nor surrender himself to prison, a scire facies lies against the bail. But the capias ad satisfaciendum must be returned non. est inventus $ for the bail are not bound to render the principal, until they know by the plaintiff’s sueing out the writ of capto» adsatisfacindum, that he means to proceed against the person of the defendant. And no attempt is in truth ever made to find out the principal, in order to arrest him on the ca. sa. but it is left at the sheriff’s office merely to give the bail notice that the plaintiffintends to proceed against the defendant’s person ; and, therefore, it is the duty of the bail to search in the sheriff’s office to know whether any capias ad sat-isfaciendum is left there. — 2 Saund. 72, note a. Suppose the officer had returned, “ The within named L. B. is not found “ within my bailiwick ?” — Blac. Com. Jipp. 14. The statute requires of the officer, in the levy of executions, that he make demand of goods, &c. and hence, in our practice, the form of the non est inventus, is as this officer has entered it in_the present case. Whether necessary or not, when the defendant is a transient person, and the body the only security, is not material in this trial. The duty of' bail is to deliver the principal either in court or to the officer who may have the execution. — Brayton’s R. SI, Stevens vs. Adams.
    
   Prentiss, J.

delivered the decision of the court. In the argument, several exceptions have been taken to the sufficiency of the scire facias, on the ground of informality and duplicity ; but as these defects are not assigned specially as causes of demurrer, they cannot be noticed. The demurrer being general, the only inquiry is, whether the suit sets forth substantially enough to charge the defendant as bail.

It appears that the execution against the principal was issued and dated the 25th day of April; was put into the hands of the officer-the 9th of May, and returned into the clerk’s office the 19th of June, with a return of non est inventus thereon, dated the 13th of May. It is insisted that the return of die officer, which is set forth in the writ at length, is altogether insufficient, because it does not appear from it, that any search or inquiry was made by him for the principal after the 13th day of May, the day of its date ; and that, for aught that appears, the officer might have seen, and had an opportunity of taking the principal, in the 36 days which elapsed between that day and the 19th of June, when the execution was actually returned into the clerk’s office. Admitting this to be a just construction of the return, the question to be considered is, whether the return is not nevertheless sufficient.

The statute provides that bail upon an original writ shall not be liolden to satisfy the judgment which shall be rendered against the principal, unless execution is taken out thereon, and put into the hands of a proper officer within thirty days from the rendition of the judgment, and a return of non est inventus is regularly made thereon, within sixty days from the rendition of the judgment.— ( Com/p.'stat.p. 68, s. 29, 34.J The statute has not said how long the officer shall retain the execution in his hands, for the purpose of searching for the principal, or within what time, less than the sixty days, the return of non est inventus may be made. It requires the return to be made within sixty days from the rendition of the judgment; and it would seem, that if made at any time with-¡n that period, it would bo prima facie sufi ficient to charge the bail. To hold on demurrer to the writ, that the return, in the present case, is insufficient, we must be able to fix, as a matter of law, upon some determinate time, short of which tire return of non est inventus cannot be made $ and 1 do 'not see but that we should be obliged to say, that it can in no case be made, until the last day of the execution, which certainly has never been understood to be the law. In Ranlet vs. Warren, 7 Mass. 477, the bail pleaded in bar to the scire facias, that the execution was made returnable at an earlier day than by law it should have been. On demurrer it was urged in support of the plea, that an attempt had been made to fix the bail too soon, and that the return, being prematurely made, was no legal evidence that the principal was unable to satisfy the judgment, orjhat he was not ready to surrender himself to the officer,at the proper return day of the execution.But it was held, that the return of the officer was prima facie evidence of the inability of the principal to satisfy the judgment, and of his avoidance, and that the matter contained in the plea did not rebut that presumption In Collins vs. Cook, 4 Day’s Rep. 1, the officer having made search for the principal, and not finding him, returned non est inventus before the sixty days were expired; and it was held to be no defence that the return was made in forty days.

If the return of non est inventus may be made short of the last-day of the execution, shall it be at the end of ten, twenty, or forty days, or when may it be done ? If it would be good, if made at the end of forty days, how can we say, on demurrer to the writ, that it is not good, if made at the end of a less period of time ? If the return must be made after the lapse of a reasonable time, yet reasonable time, as a matter of law, cannot be affirmed of any particular period. What might be reasonable time in one case might not be so in another. It*is a question of fact, and not of law, and must depend upon the circumstances of the case. In Massachusetts, although'the length of time, that the execution shall be delivered to the officer, before the return, day is not prescribed by statute, it is settled by judicial decisions, that it must be in his hands so long, as that he may have, by diligent inquiry, a reasonable time and opportunity to find the principal. Yet in 12 Mass. 434, Stevens vs. Bigelow, a plea that the execution against the principal, was not delivered to, or kept by, the officer four days before it was returnable, was held to be insufficient. The court said that the law requires the plaintiff to use reasonable diligence to cause die body of the principal to be arrested, but that must depend upon the circumstances of the case; and they could not say, that in all cases, the execution must be delivered to the officer four days before the return day. In Edwards vs. Gunn, 3 Con. R. 316, where the execution against the principal would expire on the 29th of June, the officer made search for the body of the principal on the 19th of that month, and on the same day made his in-dorsement of non est inventus on the execution ; and on the 22d he returned it into the clerk’s office. It was determined, that although it was the duty of the officer to retain the execution in his hands a reasonable time, and to exert himself faithfully and diligently for the apprehension of the principal, yet that a return made at anytime during the life of the execution, was prima facie evidence of the avoidance of the principal, throwing upon the bail the burden of shewing that he was injured by such return ; and that if the execution was returned before the return day, and before the lapse of a reasonable time, the bail could take no advantage of it, unless he shew that he had been prejudiced by it.

It appears to be the plain and reasonable conclusion, that the return of non est inventus is prima facie sufficient, if made at any time within the sixty days. We say primafacie sufficient; for no doubt it is competent for the bail, if the return is made prematurely, to avoid the effect of the return by plea. In England, it being the common practice, when a plaintiff intends to proceed against the bail, to carry the ca. sa. to the sheriff’s office, and give directions to have it returned non est inventus, the return is considered as procured at the peril of the plaintiff, and is merely prima facie evidence of the avoidance of the principal. (Forsyth vs. Mariot, 1 New Rep. 251—Bucks vs. Maine. 16 East, 2,)— But as a regular return of non est inventus is here made necessary' by statute, in order to lay a foundation for proceedings against the bail, it may be more consistent, as well as a better doctrine, to hold, that the return cannot be contradicted in an action against the bail.—15 Mass. 230, Winchel vs. Stiles. But admitting the return to be concl usive, it can be so only as to the facts alleged in it; and in the present case, according to die construction given to the return by the defendant’s counsel, if the principal, after the 13th of May, the date of the return, and before the 19th of June, when the execution was actually returned into the clerk’s office, was publicldy abroad within the knowledge of the officer, and might have been taken by him on the execution ; or, if the execution was- returned pre-matur ely, and the principal' was surrendered' to the officer, at a reasonable time before the return day, though after return made,, the matter might have been pleaded in bar to the scire facias. As such a plea would apply to a time' not embraced in' the officer’s return, it would not be liable to the objection that it contradicted the return. Thiswould be a plain and consistent course, and afford ample security to the bail. But' if we should say on demurrer to the writ, that the return- in this case is bad, we must go the whole length of saying, that although the principal may have notoriously absconded, and was not within the officer’s precinct during the life of the execution, yet it was necessary for the officer, although the bail has sustained no damage, to have postponed his return, until the last day of the execution. Certainly, such has never been understood to be the law; and we are not aware of any reasons, either of justice, of policy, or expediency, which require that it should bo so,. A return made at any time within the sixty days must be prima facie good; and if it is made prematurely, and the bail is injured by it, he must show the matter to the court by plea, in order td avoid the effect of the return. As this has not been done in the present case, but the defendant has demurred to the writ, nothing appears why he ought not to be charged 5 and the plaintiff’s' writbeing sufficient, the judgment of the County Court must be reversed, and judgment entered for the plaintiff, unless the defendant move to withdraw his demurrer, and plcad-te the action, which will he allowed him on the payment of costs.

Ch. Phelps, for plaintiff.

Bradley, for defendant..

Judgment reversed.

After Judge Prentiss had delivered the opinion of the court, reversing the judgment ■of the County Court,

•Hutchinson, J.

expressed-his opinion dissenting from thatofthe court, as follows: I cannot feel satisfied with the opinion now delivered. It is a case attended with some difficulty. We found it so in the County Court: but after devoting much more time to it then than we have now,we made the decision which is now reversed*

I feel-no difficulty in so-far agreeing with my brethren, as to' admit, that under certain-circumstances, a sheriff majr make hi non est return upon an execution soon after he receives it, and lilis be fair and-binding upon the bail. -It maybe publicly known that the debtor-has so entirely absconded that search will be of no use* The bail may -be in failing. circumstances : hence it might be proper to make speedily all the search -he -intended to make, and close his return, so that the creditor might have his action against the bail. My -difficulties are not of this kind. Here, the sheriff on the nineteenth day of June returns his execution to the Clerk? with a very ceremonious return thereon endorsed, dated about five weeks previous, and written in-the past-tense. He says “I then S£ repaired to the usual abode of ¿the debtor, and made demand “ of goods, &c. and none were shown me, nor could 1, by the “most -diligent search-throughout my .precinct, find the body of “the said debtor.” In strictness of speech, this return contains no assertion thathe had made any search at all for the body, but rather that he took it for granted that he could not find him by searching. -But I lay no stress upon this. This return covers no time but the day of its date ; whereas it should cover all past time after he received the execution. Yet I pass from this to what is more important. The return certainly covers no time after its date. There were then about five -weeks, in which the officer might have seen the debtor every day, with the execution alive in his hands, and yet this return might have been true. Whatever the officer states in his return is binding upon the bail in this action. The plaintiff might recover of the sheriff for a defective return. The bail can meet it in no way but in his defence as ho now urges it. Now, while the bail is -bound by the officer’s return, in reference to the facts it contains, he has a right to claim-of the officer a full return of facts that should exist to charge him. He has a right that the sheriff shall date his return when he returns his execution to the office, and, at that date, say he has made diligent searcNand cannot find the body. I cannot but view this return as studiously worded so as may be true; and yet, to charge the bail, without more and different facts,'would be a fraud upon him. I regret the trouble to the parties by our decision in the County Court, but my mind is some relieved by the conclusion to which the court have arrived, to permit the demurrer to be withdrawn, and a special plea, such as once was filed in the action, to be again filed, and the fact litigated before the jury, whether the debtor might have been apprehended,with reasonable search, during the period not comprehended in the sheriff’s return, and during which the execution was alive in his hands.

Notjs — The above cause was tried again at the April Term, 1828, on a traverse to such a plea in bar as above alluded to, and the defendant obtained a verdict.  