Butterick v. Atkinson

3 N.H. 307

Opinion

By the court.

If it distinctly appeared in this case, that the officer had the execution in his hands on the return day, we are of opinion, that it might be presumed, that he had kept it in his hands, from the time he gave notice, until the return day. But the return of non est inventus is without date ; and it in no way appears, that the officer had the execution on the return day. We think, it would be going much too far to presume, that the officer had the execution on the return day, and thus make that presumption the ground of another, that he had kept it in his hands until that time. The statute of June 23, 1818, enacts, that “ the officer shall keep such execution “ in his hands, until the return day thereof, in order that the :i bail may produce the principal to the officer, that he may arrest him on said execution.” And regularly the officer ought to state in his return, that he so kept the execution. — ■ But, in this case, that fact is not stated, nor is any fact stated, from which it can be presumed, that the officer kept the execution in his hands until the return day.

Judgment for the defendant.