Palister v. Little
6 Me. 350
| Me. | 1830
Mellen C. J.

delivered the opinion of the Court.

In the decision of this cause we found our opinion altogether upon the fourth set of pleadings, ending in a general demurrer; and accordingly* shall take no notice of the others. In the writ, the plaintiff, after setting forth the judgment against the Bejepscot proprietors, the issuing of the execution, and delivery of it to the officer for service, and his return thereon in htec verba, stating that hef had made diligent search for the property of the proprietors sufficient to satisfy the execution, but could find none; and that he had also demanded of the defendant, and also of the clerk of said proprietors their property ; he concludes his averments by alleging that they are wholly unable to pay the amount of said judgment. In the plea under consideration, the defendant says that the- proprietors are of sufficient ability, and hold and possess sufficient real estate in this State to pay and satisfy the judgment and execution; and tenders an issue to the country. To this plea the plaintiff replies by a restatement of the judgment, execution and the return thereon in the same manner as in the writ. To this replication there is a demurrer. Is this a good replication ? I>oes it traverse or avoid the plea ? It ought *352certainly do one or the other. The plea expressly denies the allegation of inability contained in the declaration ; and also avers that the proprietors have sufficient estate in this State. If double, or improperly concluded, it should have been demurred to specially, for such cause. The only reply to this plea is the officer’s return, which only alleges that he could not find any property sufficient to satisfy the execution. The legal import of this is, that he could not find such property in his precinct, that is, in this county. He had no official powers beyond the limits of his precinct. In terms, therefore, the replication does not confess and avoid the plea, nor traverse the facts stated in it. It is true the return cannot be contradicted; but, though true, it does not disprove the plea; for though no property of the proprietors could be found in this county, there was sufficient real estate belonging to them within the State. This is admitted by the replication, because it is not therein denied. These are all plain principles of pleading. 1 Chit. Pl. 549, 570, and cases there cited. In certain cases, a search for property, and a return of nulla bona, are sufficient to lay the foundation of an action. So a were demand and refusal; as for instance, a demand of a sum decreed to a creditor by the Judge of Probate. But a question of inability to pay, is a question of fact, which must be proved, in order to render the indorser of a writ liable. As to avoidance, it seems to be a term which, though used in the statute, is totally inapplicable to such a corporation's the Pejepscot proprietors. They cannot avoid, nor be arrested and committed. The success of this action must depend» on the question of inability merely. According to Ruggles v. Ives, a return of non est inventus is conclusive evidence of avoidance ; but even an arrest and commitment is only prima facia proof of inability, which may be rebutted. In the present case there could not be a commitment of the proprietors; and surely when the only proof of inability is, that none of their property could be found in this county, it never can be considered as conclusive evidence that they do not own sufficient property in some other part of the State.

But. it is said that if the replication is bad, still the first fault is in the plea, because it does not allege in what part of the State the-property of the proprietors is situated, and the nature of such property. *353No caso is cited iu support of this objection, and we know of none. Had the plaintiff joined the issue tendered, the defendant, in support of his pica, must have proved those facts on the trial, or failed in his defence. We cannot perceive how/upon the correct principles of pleading, the replication can be adjudged good.

Replication adjudged insufficient.