Collins v. Cook

By the Court. The question in this case is, whether the sheriff was justified in returning thp execution to Fairfield, after having- held it more than forty days, so as to subject the bail on his bond. By the terms o(f the contract entered into by the bail, he became liable, if he did not deliver up Osborn in court, at the time of the judgment rendered against him. By the statute, however, the right of the bail to deliver his principal exists after the time of the judgment, until a return of non est inventus is made. Ydhen this is done, the bail becomes liable, unless ire can show that it was unfairly made. The inquiry is not whether after the return there was not so much time that the officer might have safely holden the execution longer, and then have had time to return it: but ihe inquiry is, has the principal avoided, and has the bail had a reasonable time to have surrendered up the principal, before the return of the execution ? In this case, the principal avoided, and lived in the town of Boston; and the bail having had forty days to surrender the principal, this, in the opinion of the court, is a sufficient length of time, and the return was fairly made. Judgment affirmed.