Bull v. Clarke

Shaw, C. J. On a scire facias against bail, several exceptions were taken by the defendant to his liability. 1. That the execution, with a return of non est inventus in order to charge the bail, was returned too soon. The execution issued from the court of common pleas, on the 27th of November, and by force of the statute (Rev Sts. c. 97, § 9,) was returnable in three months from the date, there being no regular term of that court within that time. By the term three months, three calendar months are intended, and the day of the date being excluded, the corresponding day of the third month from the date, say 27th of February, was the return day. Bigelow v. Willson, 1 Pick. 485. Homan v. Liswell, 6 Cow. 659. But supposing the day on which the execution was returnable was the 27th of February, the defendant contends, that the execution could not be returned till the last hour of that day, and that the defendant ought to have been permitted to prove by parol evidence, that the execution was in fact returned into the clerk’s office, before sunset, on the return day. We are of opinion that the court of common pleas decided correctly in rejecting this evidence, and that if admitted, the fact would have been immaterial and would have constituted no defence for the bail. Without relying upon the well known maxim, that the law recognizes no fraction of a day, we think that when a writ of execution is not returnable to a court, but to the clerk’s office, it is returnable at any reasonable and convenient time, on the return day ; and that evidence of the usual hours, during which the office is open for business, would be prima facie evidence of what is reasonable and convenient. It was urged in argument, in analogy to the payment of rent, and some other cases, that the officer has till the last hour of the day to return his execution. It may well be admitted, indeed it results from the rule as stated, that the officer would not be in default, if he make his return at any time during business hours ; and of course at the last of those hours. But does not follow that a return at an earlier hour would not be good. These rules are adapted to general and practical use. An officer ought not to be bound to a precise minute ; having various returns to make, on ore [589] and the same day, either to the same office or to different offices, prima facie he does his duty by making them within business hours. If a certain hour is fixed, as in case of writs returnable before justices of the peace, it prescribes a different rule of duty. We have said that such a return would be prima facie good tc- fix the bail. If the bail should undertake to show that any trick or deception had been practised to mislead or entrap the bail, as if the officer or creditor should inform the principal or nail, that the execution would not be returned before a particular hour on the return day ; if, by any indirect means, the bail were prevented from surrendering his principal, when it was his intention and within his power to do so ; it would present a very different question, on which we give no opinion. Prescott v. Wright, 6 Mass. 20. 2. Another exception was, that the writ of scire facias does not allege that the bond was executed by the principal; and the case of Bean v. Parker, 17 Mass. 591, is relied upon. In that case, it was a question upon the sufficiency of the bond, where it appeared upon plea that it was not in fact signed by the principal. Here it appears by the bond as set out on oyer, that it was in fact signed by the principal ; and the only question is, whether it should have been averred in the writ. Supposing this, if defective, could be taken advantage of in any other way than by special demurrer, which is doubtful, we think it is an swered by the Rev. Sts. c. 91, § 6, which provide, that on a bail bond, the plaintiff may take out a writ of scire facias in his own name, as on a recognizance, “ in which it shall be sufficient to allege, substantially, that the defendants became bail, without setting forth the bail bond.” Here it is alleged, in form and substance, that the defendant was bail and surety for the princi pal, upon tne original process. 3. The last objection is, that in describing the process on which the defendant became bail, the bond did not state the amount claimed by the plaintiff. We are of opinion that it is not necessary to state in the bond the amount demanded in the writ. The bond refers definitely to the writ, and it is onlv [590] necessary to identify the process, and then the process, which must be returned and entered of record, before the bond becomes available to any practicable purpose, limits the amount of the demand. In Owen v. Nail, 6 T. R. 702, where bail was taken in an action of trespass on the case upon promises, but described as an action of trespass, it was held sufficient. If ¡here had been two actions at the same term, one in case, and one in trespass, then no doubt the decision would have been otherwise ; because it would not have identified the particular case, in which the avoidance had occurred. So, in the case of Colburn v. Downes, 10 Mass. 20, although the Christian names of both plaintiffs were misstated, yet as there was no other process to which it could apply, it was held to apply to the one m which judgment had been rendered for the plaintiffs. See also Palmer v. M'Ginnis, Hardin, 506. Judgment of the court of common pleas affirmed Huntington, for the defendant. Forbes, for the plaintiff.