Wehrle v. Gurney , 146 Mass. 331 ( 1888 )

Knowlton, J.

It is provided in the Pub. Sts. c. 163, § 7, in relation to suits upon bail bonds, that “ in case of the avoidance of the principal and a return on'the execution that he is not found, or a return on the notice mentioned in section nineteen of chapter one hundred and sixty-two, that after diligent search by the officer serving the notice the principal is not found, his bail shall be obliged to satisfy the judgment,” &c. The defendant contends that, after such a return on the notice, suit cannot be brought on a bail bond until the expiration of sixty days from the date of the execution. But no foundation for his contention is found in the language of the statute, or in the history of the legislation from which it is compiled.

The first alternative named in the section, “the avoidance of the principal and a return on the execution that he is not found,” cannot occur until the expiration of sixty days from the date of the execution, for until then the execution is not returnable. Niles v. Field, 2 Met. 327. Adams v. Cummiskey, 4 Cush. 420. Nor unless a certificate authorizing an arrest is attached to the execution. Rhodes v. Brooks, 16 Gray, 170.

Upon the passage of the St. of 1877, c. 250, requiring notice to the debtor and a hearing by a magistrate before a certificate for arrest could be attached to an execution except in certain cases of fraud, it resulted that, when a debtor could not be found and notice could not be served upon him, no certificate foParrest could be obtained, and no effective return of non est inventus could be made upon the execution, and consequently scire facias could not be brought against the bail. To provide for such a case the St. of 1881, c. 263, § 4, was passed, which is incorporated in the Pub. Sts. c. 163, § 7, to the effect that upon an avoidance of a debtor, and a return on the notice that after diligent search by the officer serving the notice he is not found, his bail shall become liable.'

The reason why sixty days must elapse before suit can be brought on account of an avoidance upon an execution with a certificate of arrest attached is, that until then the execution cannot be returned, and the avoidance is not complete. No such reason applies to an avoidance upon proceedings to obtain a certificate for arrest. The notice in such a case is returnable on the day fixed in it for the debtor’s appearance. If a return of non est inventus is then made upon it, the avoidance is complete, the language of the statute is satisfied, and a suit may be immediately brought upon the bail bond.

The officer’s return admitted in evidence was competent and sufficient. That part of it which referred to a “ tenant, agent, or attorney ” of the debtor was immaterial, and did not affect its validity. Exceptions overruled.