
    Hollibut Herrick versus Andrew Richardson.
    A return of an execution by the officer that the judgment debtor had enlisted as a soldier in the service of the United States, is not sufficient to charge the bail.
    This was a writ of scire facias against the defendant as bail of one David Herrin. The parties agreed that the defendant became bail as charged in this action; that the plaintiff recovered judgment, and sued out his execution against Herrin; which execution was delivered to a deputy sheriff on the 23d of December, 1812; that, on the 15th of February, 1813, Herrin was duly enlisted as a soldier in the service of the United States, and has ever since so continued; and that, on the 23d of March, 1813, the deputy sheriff made his return upon the execution that he had made diligent search for the property of the said Herrin, and could find none; and that he found the body, not until after he had enlisted into the [ * 235 ] United States service, and being a * soldier in the said service, he could not, by the laius of the United States, commit him; wherefore he returned the execution in no part satisfied.
    If, in the opinion of the Court upon these facts, the defendant was chargeable as bail, he was to be defaulted; otherwise the plaintiff was to become nonsuit.
    
      Rice and Warren, for the defendant.
    Bail are answerable only upon a return of non est inventus by the officer.  Here is no such return. The principal was found, and the officer should have seized him, according to the exigence of his writ. 
    
    
      Boutell, for the plaintiff.
    The officer’s return is tantamount to non est inventus. The laws of the United States forbade the seizure of the body. It was in the power of the bail to prevent the enlistment of his principal. He was his keeper, and should have kept him in such manner as to have him forthcoming upon execution, or at farthest, now, upon the return of the scire facias. 
      
    
    
      
      
        Stat. 1784, c. 10.
    
    
      
      
        Highmore on Bail, 75. — 1 Burr. 339, Bond vs. Isaac
      
    
    
      
       8 Mass. Rep. 264, Parker vs. Chandler.
    
   Per Curiam.

The return of the officer is not non est inventus; nor sufficient to charge the bail. Let the plaintiff be called,

Plaintiff nonsuit.

CASES ARGUED AND DETERMINED IN THE SUPREME JUDICIAL COURT, IN THE COUNTY OF LINCOLN, JUNE TERM, 1814, AT WISCASSET. PRESENT: Hon. SAMUEL SEW ALL, Chief Justice. Hon. GEORGE THATCHER,) Hon. ISAAC PARKER, > Justices Hon. DANIEL DEWEY, ) 
      
       Vide Sayward & Al. vs. Conant, ante, 146, and note.
     