Rowell v. Hoit

8 N.H. 38

• Court: Superior Court of New Hampshire
• Decided: July 15, 1835
• Status: Published

Opinion

Parker, J.

The statute enacts that the bail shall be obliged to satisfy the judgment obtained against the principal, in case of the principal’s avoidance and return of non est inventus upon the execution.” If, therefore, the return in this case is an unqualified return of non est inventus, the plaintiff is entitled to recover. But it cannot be so regarded. The officer returns that the bail has never produced the principal, therefore he returns the execution non est inventus. The return must all be taken together, and so taken does not negative the fact that the principal may have been in the presence of the officer, and that he has had an opportunity to arrest him on the execution. It is in substance merely a return that the bail has not produced the principal; for the farther return of non est inventus is explicitly set down asa consequence of that fact. That fact however authorizes no such consequence. It does not show that the principal has avoided, and if he has not the officer cannot lawfully make a return to charge the bail.

The clause of the statute requiring the officer who holds the execution to give notice to the bail fifteen days before the return day, is for the benefit of the bail, that he may produce the principal to the officer in his discharge ; but it does not require him so to do, and it does not authorize a return of non est inventus in any case where such return could not have been made if this provision of the statute had not existed. 7 Green. Rep. 80, Kidder vs. Parlin.

The officer in this case may have leave to amend his return, upon filing an affidavit showing that the truth of the fact will warrant it, hut on the case as it stands there must be

Judgment for the defendant.