Edwards v. Gunn

Hosmer, Ch. J. The obligation of bail, arises from contract and the law conjointly, which extends his privilege beyond the express condition of the bond. The statute subjects him, in case of the principal’s avoidance, and a return of non est inventus on the execution. This event does not take place, on the omission to surrender the principal in court, nor until, after the exercise of due diligence, the execution is legally returned. It is unquestionably the officer’s duty to exert himself faithfully and dilligently for the apprehension of the debtor. If, after the lapse of a reasonable period, he returns the execution with an indorsement of non est inventus, this, although liable to be falsified, is prima facie evidence of the debtor’s avoidance. A return, made without the exercise of due diligence, to subject the bail, is fraudulent and void. So. if the return is made fairly, before the time limited in the execution, it is at the'risk of the officer. The principle on this subject is correctly stated in Fitch v. Loveland, Kirby, 484. “ If the execution had been returned before the return-day, the defendant could not take advantage of it, unless he shews that he was prejudiced by it.” “ If the bail render the body of the debtor, or he render himself to the officer, to be taken by the execution, at any time before the return-day, the bail ought to be exonerated.” It can never be said truly, that due diligence has been exerted, by the officer, or that the intent of the law in granting the execution, has been fulfilled, when, to the damage of the bail, the execution has been returned, before the latest period which the time limited allows. [319] The case of Collins & al. v. Cook, 4 Day, 1. does not at all contravene these principles. It does not appear from the plea, either expressly, or by necessary inference, that any damage arose to the bail, by the early return of the execution. And although it was said by the court, that the bail having had forty days to surrender the principal, before the return of the execution, this was a sufficient length of time ; the expression must be construed with respect to the subject matter. The meaning undoubtedly intended to be communicated, was merely this; that the return after forty days, when the bail receives no damage from it, is legal. I am the more confirmed in this construction, when I reflect that reasonable time is not predicable of any period, without reference to extrinsic facts ; The law pronounces nothing on this subject. It is a question of fact for the jury exclusively, and dependent for its solution on all the circumstances of the case. From these principles it results, that the tender of the debtor’s body before the return-day, exonerated the bail. It is no argument for th^e plaintiff, that the officer, prematurely, and in disqualification of himself from performing his official duty, returned the execution. The question of fraudulent return, besides, has not been I duly tried. The point was put to the jury, encumbered with this incorrect principle “ that fifty-three days from the date of the execution, was a reasonable time within which to have I surrendered the body of the debtor.” This forestalled the in-Iquiry of the jury, on the matter submitted to them. If the return of the execution was at a reasonable time, the act was [lawful, and it would be incongruous to consider it the subject lof complaint. Had the court subjoined the proper qualifica-Ition, that if no disadvantage accrued to the bail from the early [return, the act was legal, the verdict must have been for the ldefendant. Pster-s, Bra&ard, and Bristol, Js., were of the same I opinion. Chapmah, J., said, that he considered himself bound by the ¡decision in Collins & al. v. Cook, which he could not distinguish Jin principle from this case. Aside from that decision, he Ishould have concurred in the opinion given by the Chief Justice. New trial to be granted.