Gallup v. Dennison

The averments relative to these points are not so explicit as they might have been, but are, how*433ever, certain enough to- common intendment, especially as they are references to matters more fully appearing of record, of which a proferí is laid.

As to the first exception — the averment is — That the “plaintiff was lawfully authorized and empowered to serve and return,” etc. Which is sufficient, without setting forth particularly the circumstances implied in his being so authorized and empowered, as that he was specially empowered by a justice of the peace, who was appointed by the general assembly, and sworn by, etc. Eor though a declaration is to state facts, that the court may see that there is a title, yet, if a fact laid be of a complex nature, and technically expressed, it is not ordinarily necessary to set forth the circumstances, or component parts, which constitute the fact; as this would make the record too prolix, and there may be certainty enough without it.

As to the second exception — the averment is — That “ Eldridge (the plaintiff in the original action) appeared before the court, and the cause was adjourned to the first Tuesday of February, A. D. 1786; at which adjourned court the said Eldridge appeared in said cause; hut the said Elliot (the principal) failed to appear, and answer in said cause, according to the condition of said bond; and said adjourned court rendered judgment in favor of said El-dridge, on default.”— From the words, “ but the said Elliot failed to appear, and answer in said cause,” it would not, indeed, be certain, but he appeared at November court, to which he was bound; but coupled with the following words— “ according to the condition of s,aid bond,” they amount to a negation of an appearance at November court, as well as at the adjournment; for had there been an appearance there *434tbe condition would have been performed, and there could not afterwards be a failure upon it.

There having been an adjournment of the cause from November court, doth not evince, as hath been contended, that there was an appearance there by the principal; which in order to discharge the bail, must have been by a surrender of the principal in court, appearing of record, or by his having plead to the action. The court, without such an appearance, might adjourn the cause at the motion of the bail, to give time to bring in the principal; or, at the motion of the principal himself, to give time for special bail to be entered, that he might plead.-— There is nothing, therefore, to contradict the averment of a failure to perform the con--dition of the bond, or to appear and answer thereto.

As to the third exception — the averments are — That the execution was dated on the 21st of February, 1786, and returnable in sixty days; and that the officer “ made diligent search after the person or estate of said Elliot, throughout his precincts, but could find neither; and on the 15th day of April, A. D. 1786, returned said execution into the files of said County Court, with a proper non est inventus indorsed thereon, in due form of law.” — Here is. an averment of a return of non est inventus, within the life of the execution, which is a return of a certain appropriate meaning, and the one by name required in the statute; —and also, an averment of the officer’s having, previous to the return, done specifically the facts which a non est inventus amounts to; — which, with a reference to the record, is quite sufficient upon this point.

dissenting. As the foundation of my reasons *435for dissenting from my brethren, in ibis caso, I would take notice of two law principles:—

1. That every declaration is to be taken most strongly against him who declares; and nothing is to be taken in favor of it, by implication, except what is necessarily implied.

2. That where the construction is doubtful, it shall be in favor of the defendant.

It is admitted,-that the averments in this declaration are not so explicit as they might have been.— It is further admitted, in this case, that the person who served the writ and took the bail bond, was not a common legal officer authorized to servo writs, as sheriff, deputy, or constable; but if he had any authority whatever, it was by a special power and appointment given him by the authority who signed the writ, founded on a particular statute for that purpose. If the writ had been served by a common legal officer, and an action brought by him on the bail bond, there is no doubt but ho must have set forth his office in his declaration, and that ho received and served the writ as such; which would be averring a matter of fact, that might be traversed, and put in issue; and it would not do for him to aver generally, that he was a person legally authorized.— If a person who had been arrested, and imprisoned, should bring his action for false imprisonment, would it do for the defendant to plead, that he was legally authorized to arrest and imprison him? Clearly, not; — and it is. equally clear —that where any claim or demand is made, by force of a special authority, such authority must be specially set forth, that the court may judge of the legality by the facts; — but from a simple averment, no judgment can be formed, for want of facts to ground it upon.

*436As to tbe second exception — tbe condition of tbe bond was- — -That tbe defendant in tbe suit referred to, should appear in tbe County Court in November. In declaring upon obligations with condition, it batb ever been practiced and beld, tbat tbe declaration should contain an averment that tbe condition is not performed; otherwise, tbe plaintiff does not show tbat be has cause of action.— Tbe averment in tbe present case, is — Tbat Eldridge appeared at November court, and tbe cause was adjourned till February, when tbe said Eldridge again appeared, but Elliot did not appear.— It goes further, and says — Tbat bis not appearing at February court, was a failing to appear, according to tbe condition of tbe bond: Tbe only condition was, tbat be should appear at November court, which tbe plaintiff batb not denied. Tbe words coupled with “ according to tbe condition of said bond,” are particularly confined to February court, and cannot, by any reasonable construction, be carried back to November; and tbe arguments of my brethren show tbe declaration to be very dubious and uncertain in tbat respect; and tbat, upon tbe principles premised, ought to be construed most favorably for tbe defendant, and not for tbe plaintiff.

As to tbe third exception — Tbe plaintiff, it is true, avers, tbat be made diligent search, etc. and returned tbe execution into tbe files of tbe court, (and in bis opinion) made a proper return of non est inventus thereon, and (be says) it was in due form of law; but bow can tbe court know that it was a proper one, or in due form of law. No facts are set forth, and it does not appear tbat tbe return contained any.— It batb been ever beld necessary, tbat tbe officer should set forth bis doings in bis return, so' far as will *437enable tbe court to judge of the legality thereof, if true, and for the defendant to contest them, if not; and if the contrary be once admitted, it will involve all in uncertainty, and deprive the defendant of his legal defense.— Therefore, it appears to me, that the declaration is wholly insufficient.