
    John Rhodes & another vs. Charles E. Brooks & another.
    Under St. 1857, c. 141, a return of non est inventus upon an execution will not support a writ of scire facias against the sureties in a bail bond, given by the defendant upon his arrest on mesne process in the same action, unless the certificate required by § 3 was annexed to the execution.
    Scire facias against the sureties in a bail bond given by Isaac W. Hopkins, arrested on mesne process at the suit of the plaintiffs. Hopkins, without being surrendered by his bail, appeared before a master in chancery and took the oath for the relief of poor debtors, and on the same day the plaintiffs recovered judgment against him, on which execution issued and was delivered to a deputy sheriff for service, who made return thereon that, after diligent search, he was unable to find within his precinct the body of Hopkins or any property on which to satisfy the execution. Upon these facts the case was submitted to the judgment of the court.
    
      T. L. Nelson, for the plaintiffs.
    
      H. Chapin, for the defendants.
   Chapman, J.

The St. of 1857, c. 141, makes no provision for the discharge of a debtor who has given a bail bond upon his taking the oath, unless he has been surrendered by his bail or arrested on execution; but in order to lay the foundation of a scire facias against his bail, there must be a return of non est inventus made by an officer who has authority to arrest him on the execution. But no officer has such authority unless there is annexed to the execution the certificate prescribed by § 3. In this case there was no such certificate, and therefore the return is invalid. Judgment for the defendants.  