Orvis v. Town of Isle La Mott

12 Vt. 195 | Vt. | 1840

The opinion of the court was delivered by

Redeield, J.

— If we concede that the return upon the writ of execution in favor of the plaintiff against Reynolds, was informal and void, it by no means follows that the defendants are not liable. The return of non est inventus, is required, by statute, in the case of bail only: As in the present case, no bail was taken, it is difficult to perceive how a formal return could be important. If the execution was taken out and put into the hands of an officer, so as to give the defendants an opportunity of surrendering the debtor,it is all that could be reasonably required. But the court below considered the return of non est important, and decided in favor of the defendants, on account of the alleged defectiveness of such return.

The plaintiff indeed moved the court to permit the officer, who made the return, to amend it on trial. This was denied and very justly. That process was not then before the court, for the former suit, and every thing pertaining to it, had long before been determined. The record and proceedings in it, could therefore no more be amended, than if that suit had been pending in another court. Fletcher v. Pratt, 4 Vt. R. 182. It is obvious, too, that if the return is important, as a regular non est inventus return, it must have been perfected within the life of the execution, or it could be of no avail. Turner v. Lowry, 2 Aiken’s R. 72. At what time within the life of the execution it was made, is not important. Howe v. Ransom, 1 Vt. R. 276. But it must be perfected within that time, and actually returned into the office from which it issued. So that it is apparent no amendment could avail the plaintiff in the present case.

But, on inspection of the return, in the present case, we are all of one opinion, that it is sufficient, even for the purposes of charging bail, strictly. The sheriff of the county returns thus: — “ Grand Isle county ss., Alburgh, June 27th, 1838. I then made diligent search for the body of the within named defendant, (leg.”) It is not stated indeed where this search was made; but where will it be intended ? In some adjoining county, or in his own precinct ? Surely the latter. It is only by an unnatural and forced construction, that any doubt could be raised. The sheriff proceeds, “ and could not find it.” Could not find what? Why surely the defendant’s body; for the sentence continues, “ to levy .this ex. nor property, I therefore return this ex. unsatisfied.” Language could hardly make the import of the return more obvious. And when from the return it is made clear, beyond doubt, that the officer had made search throughout the proper precinct, both for goods and the body, and could find neither, nothing could be more unsound and unwise than to raise a doubt, by a forced intendment, and thus avoid the return.

Judgment of the county court reversed and new trial granted.