Tuttle v. Kip

Per Curiam. This case depends on the construction which is to be given to the eighth section of the act to extend the jurisdiction of justices of the peace, (sess. 41. ch. 94.) by which it is enacted, “ that no execution shall issue on any judgment given by virtue of this act, unless by consent of the parties, in less time than three calendar months from the time of entering the same; provided, the defendant shall give a bond with security, to be approved of by the justice before whom such judgment shall be obtained, for the payment of the debt and costs, at the expiration of the said three months, or surrender the body in execution within thirty days thereafter.” We perceive no statute authority for surrendering a debtor, in discharge of his surety or bail in a Justice’s Court, unless it be by delivering him to the constable having an execution against him. The common law incidents of a recognizance of bail, according to the practice of courts of record, do not apply to. a Justice’s Court. Davenport was surety, not bail. It would be false imprisonment in a justice to commit a debtor to gaol, on the ground of a surrender by his surety, without the consent of his principal. The “ surrender of the body in execution,” here means, the delivering up of the debtor to the constable having an execution against him. The condition of the bond, in this case, is in the alternative ; either to pay the amount of the judgment in three months, or to surrender the debtor in execution, within thirty days thereafter; either of these acts would be a satisfaction of the bond. The statute clearly meant to allow the surety the privilege of being exonerated, if the principal was found, on the execution. It, therefore, seems, that the sound interpretation of the statute requires, that the creditor should sue out execution at / the end of the three calendar months from the date of the judgment, and have a return of non est inventus thereon, before he can maintain a suit on the bond. It is at the pleasure of the creditor to sue out execution or not; and it would be unreasonable and unjust to allow him to render [196] the bond absolute, by forbearing to take out an execution, and thereby deprive the surety of the only possible mode of complying with the condition of the bond, by surrendering the principal “ in execution.” We are, therefore, of opinion, that the judgment of the Justices’ Court must be reversed. Judgment reversed..