
    * Samuel Runlet versus Ebenezer T. Warren.
    Bail was holden, notwithstanding the execution against the principal was made returnable at an earlier day than by law it should have been
    This was a writ of scire facias against the defendant, as bail for one John H. Dearborn.
    
    The plaintiff alleges, in his writ, that he recovered judgment against Dearborn, at the October term of this Court, in the year 1809, for 111 dollars 83 cents damage, and 105 dollars 18 cents costs; that execution issued thereon on the 21st day of the same October, which was made returnable in six months from its date, and was duly delivered to J. F., a deputy sheriff, to be executed; that Dearborn hath not abode the said judgment, but has avoided the same, so that he could not be found; that the deputy sheriff returned the execution at the end of the six months, with his return endorsed thereon, that he had made diligent search for the body and property of Dearborn, and could find neither, and therefore he returned the execution in no part satisfied; and that the said judgment is still unsatisfied. Whereupon the defendant is summoned to show cause, &c.
    The defendant pleads in bar that there are two terms of this Court established to be holden annually in this county, viz. one in May, and one in October; and that the plaintiff’s execution ought to have been returnable to the May term then next, and not at the end of six months from the issuing thereof.
    To this plea in bar the plaintiff demurs generally, and the defend ant joins in demurrer.
    
      Mellen, for the plaintiff,
    insisted that the defendant could not avail himself of this mistake of the clerk; and he cited the cases of Cholmondely vs. Dealing, 
       and Ball vs. Manucaptors of Russel. 
      
    
    The writ avers that the principal avoided, and that neither his body nor his property could be taken, which is confessed by this plea in bar; and this is all that is required by the statute,  to fix the obligation of the bail to satisfy the judgment out of his own estate.
    * Wilde and Dond, for the defendant,
    insisted that the [ * 478 ] bail was injuriously affected by the execution against the principal being made returnable in a shorter time than by law it ought to have been, and that he ought not to be chargeable. 
      In the case at bar, the scire facias was made returnable at the term at which by law the execution should have been returnable; an attempt was thus made to fix the bail too soon. If the principal dies before the return of the execution against him, the bail, plead ing this, is discharged. But, by taking his execution returnable before the time by law established, this legal privilege of the bail was impaired. Further; the return thus prematurely made is no legal evidence that the principal was unable to satisfy the judgment, or that he was not ready to surrender himself to the officer, at the proper return day of the execution.
    
      
       2 L. Raym. 1096.
    
    
      
      
        Ibid. 1176.
    
    
      
       1784, c. 10, § 1.
    
    
      
      
         1 H Black. 74. Gawler vs. Jolley. — Bac. Abr. Title, Bail in civil, causes, D
      
    
   The action stood continued nisi for advisement, and at an adjournment of the March term in Suffolk, judgment was given for the plaintiff, the Court observing that the irregularity in issuing the execution did not make the same void; although it would have been superseded upon motion. The return of the officer was prima facie evidence of the inability of the principal to satisfy the judgment, and of his avoidance ; and there is nothing in the case to rebut this presumption. The defendant’s plea in bar is bad and insufficient.  