#### John Winchel *versus*Gideon Stiles.

It is no bar to a *scire facias*against bail (where a *non est inventas*has been returned upon the execution) that the principal was abiding in the county of the sheriff, always ready and willing to render his body in execution, and did not avoid.

'This was a writ of *scire facias*against the defendant, as bail of one *.Joel’ Clark.*The plaintiff, in his writ, makes all the necessary *213allegations; reciting the return, upon the execution, of a deputy sheriff of the county of *Hampden,*of which *Clark*was an inhabitant, that he had made diligent search, and could find neither the body, nor any property, of *Clark,*the judgment debtor.

The defendant pleads in bar that, from the issuing of the execution against *Clark*to the day of the return thereof, he, the said *Clark,*was abiding in the town of *S.,*in the said county of *Hampden,*and was then and there ready and willing to have rendered his body in execution of the judgment, according to the form and effect of the condition of the bail bond ; and that he did not avoid, but might then and there have been found and arrested by the deputy sheriff, upon the said execution ; and tenders an issue to the country.

To this plea in bar, the plaintiff demurs generally, and the defendant joins in demurrer.

* *E. H.*and *J. Mills,*for the defendant.

The liability of bail, under the statute “for regulating bail in civil actions,” (1) does not attach but upon two distinct conditions, *viz.,*the avoidance of the principal, and a return of *non est inventus*upon the execution. These two facts are always alleged in writs of *scire facias*against bail, and they are necessary to be proved before the bail can be charged. The plaintiff has confessed, by his demurrer, that the principal in this case has never avoided. He is not, then, entitled to execution against the bail.

The case of *Stevens*vs. *Bigelow,*(2) is distinguishable from the present case. There, the execution was not in the officer’s hands during any part of the time that the defendant, in the seventh plea in bar, avers that the principal abode in the county, ready and willing to surrender himself, &c. In that case, the court say that “ the alterations which have been made in this state have not been intended to increase the liability of the bail.” But if the defence relied on in the present case is not sufficient, the fact is much otherwise.

It is laid down in that case, also, that, if the plaintiff should fraudulently keep the execution in his own possession, and should procure a return of *non est inventus,*such proceedings would furnish the bail with a sufficient bar to the plaintiff’s *scire facias.*It is no answer, that the bail may bring in the principal, and pay the costs of the *scire facias;*nor that they have a right of action against the sheriff. In the case before cited, the court say, that the plaintiff must honestly endeavor to obtain satisfaction from the principal, before he is permitted to have recourse against the bail. The return of the officer upon the execution is not conclusive against the *214bail, who are not parties to that action. (3) But if it were conclusive, it is so only as to the fact alleged in the return, *viz.,*that the officer could not find the debtor; it is not returned that the debtor avoided. So the denial of this fact is not a contradiction of the return.

* This question has not been decided by the whole Court; but it is remembered that the late Judge *Sedgwick*once sat in the trial of an issue exactly like that tendered in the present case ; he ruled in favor of the bail, and his opinion was acquiesced in.

*Blair,*for the plaintiff.

The sheriff is a sworn officer of the Court, and his return is conclusive on párties and privies. Bail are privies to the original suit. They are entitled to the custody of the principal, and may always confine him, so as to have it in their power to surrender him, and save themselves harmless. (4)

(2)

12 *Mass. Rep.*434.

(1)

*Stat.*1784, c. 10.

(3)

 11 *East,*297, *Gyfford*vs. Woodgate.—4 *B. & P.*251, *Forsyth*vs. *Marriott & Al.*—16 *East,*2.

(4)

*Com. Dig., Retorn, G.*— 4 *Mass. Rep.*478, *Slayton*vs. *The Inhabitants of Chester.*—10 *Mass. Rep.*313. — *Estabrook*vs. *Hapgood, Exr.*—14 *Mass. Rep.*314, *Saxton*vs. *Nimms & Al.*— 9 *Mass Rep*231, *Fowler*vs. *Bebee & Al.*

*Curia.*

The statute makes the return of *non est inventus*the proper foundation for proceeding against tire bail. It would be injurious to creditors, and be the cause of much confusion, if that return were to be considered as open to question by the bail. In the case of *Stevens*vs. *Bigelow,*cited in the argument, we said that fraudulent conduct on the part of the judgment creditor might be shown in defence against him on the *scire facias.*Fraud, indeed, vitiates every thing, be it of never so solemn a nature — even a record, as the officer’s return may be considered to be. But the defendant has not alleged any fraud in this case.

The legislature have made abundant provision for the security of bail. Besides the provision which enables them to confine the principal until the return of the *scire facias,*and then to surrender him in discharge of their liability, a late statute authorizes them, at any time after executing the bail bond, and before final judgment upon *scire facias,*to commit him to the common jail, leaving with the keeper a copy of the process by which the arrest was made, and notifying the plaintiff of such commitment; and thus they are ever after to be discharged from the bail bond by them given. (5) It would seem that this liberal provision has given to bail sufficient, means of indemnity.

*Plea adjudged bad.*

(5)

*Stat.*1817, c. 146.