Newell v. Hoadley

The first question to be considered, is, whether Norton was a competent witness for the defendant, on the trial of this cause to the jury. The only objection to him was, a supposed interest in the event of this suit. It is impossible for me to see any interest in this witness. He is liable, at all events, for the debt and costs of the judgment,—the amount of the execution. This liability cannot, in any way, be affected, by this process, or any judgment which may be rendered thereon. The counsel for the plaintiff, when pressed to show his interest, finally point to his liability to indemnify his bail, O. E. Williams. It is said, that *386there was an implied contract, on the part of Norton, to indemnify his surety against all liability on account of his becoming bail. Doubtless this is so. But the position supposes, that the bail may be liable for something, against which the principal is bound to indemnify. Now, wherein can that liability consist? This suit is brought against the sheriff, for neglect of official duty, in refusing to assign this bail bond. If the sheriff should be subjected to the whole amount of the execution, with interest and additional costs, how can he render the principal or the bail, liable ? They did not contract, that the sheriff should do his duty, and assign this bail bond; and when challenged therefor, each may say, there was no such condition in our bond—non hœc in fœdera veni. In this simple view of the question, the objection to Norton as a witness, vanishes.

2. It is said, that the court below erred in the instructions given to the jury. Here, it becomes important to examine into the facts sworn to, by Norton, and agreed to, by the parties. These were the basis of the decision.

It appears by the deposition of Norton, that he had not resided in Hartford, for about seven months previous to October 1829, except for a few days when he was arrested. The judgment against him was rendered in August. About the 20th of September following, he went to Hartford, and offered to surrender himself to Hoadley, the sheriff, who had arrested him, in discharge of his bail. O. E. Williams, his bail, also tendered him to the sheriff; and on the same day, he offered to surrender him to I. Toucey Esq., the attorney of the plaintiff, in presence of the sheriff; and Toucey remarked: “I have nothing to do with him; you must keep him until the execution is out.” The bail then said: “You may go as quick as you please; you are at liberty.” He further swears, that while in Hartford, he was frequently in the office of the plaintiff, who knew that his visit to Hartford was to surrender himself, to save his bail; and that he then was, and for some time before had been, a resident in Boston. It was agreed, by the parties, on the trial, that the execution was taken out, and dated, on the 13th of August 1829, and was in the hands of I. Toucey Esq., attorney for the plaintiff, from the date to the 3rd of October, when it was delivered by him to the sheriff. It was also agreed, that when Norton was in Hartford, in September, he was there publicly, two or three days. It *387was alleged in the declaration, that on the 8th of October, the sheriff made diligent search, &c. with the execution, and on the 10th of October, returned it into the office whence it issued, with a non est inventus thereon. The execution was returnable in sixty days from the 13th of August. It appears on the motion, that the cause was argued, by the plaintiff's counsel, as a question of law. The court told the jury, that upon the facts agreed, taken with those contained in Norton’s deposition, if they believed his deposition, (and there was no impeachment of him) their verdict ought to be for the defendant; and a verdict was accordingly found for the defendant.

It is now said, that this charge was erroneous; for that the facts should have been submitted to the jury. What facts ought to have been submitted? Surely, not those alleged in the plaintiff’s declaration, and not questioned by the defendant; nor those agreed to, by the parties. And as to those contained in the deposition, the question whether they were to be believed, was submitted to the jury. This objection certainly comes with an ill grace from the counsel for the plaintiff’, who argued the cause as wholly a question of law. Did he intend it to be considered a question of law, if the court should decide it in his favor, but a question of fact, if the court should decide the law against him? But in cases where facts and the law arising on them, are to be decided, the facts being conceded, or proved beyond doubt, generally a question of law only remains. Surely, it was purely a question of law, upon these facts, there being no pretence of any others, whether the defendant was liable in this action on the case. There is no solidity, then, in this objection.

It is again said, that the sheriff has returned a regular non est inventus; and it was his duty to assign the bail bond; and that he cannot be heard to allege, that the bond was discharged, by the conduct of the plaintiff. This objection is susceptible of two answers; each of which is sufficient.

In the first place, the statute, tit. Bail, (p. 62.) points out the duty of the sheriff, and the previous steps necessary to be taken, to subject the bail. In the 4th section, it is provided, that the surety or sureties shall be obliged to satisfy the judgment, in case of the principal’s avoidance and a return of non est inventus on the execution. In a subsequent section, it is made *388the duty of the officer to assign the bail bond. It is quite clear, that there can be no forfeiture of this bond, and, of course, no recovery can be had thereon, unless there has been an avoidance of the principal and a return of non est inventus. Consequently, there can never be a right in the plaintiff to demand an assignment, nor can it be the duty of the defendant to assign it, until both those facts have occurred. This is the fair construction of the statute. And the same doctrine is established, by the cases of Jones v. Lander, 6 Term Rep. 753. and Stamper v. Milbourne, 7 Term Rep. 122. Ryan v. Watson, 2 Greenl. 382.

But secondly, if there be a complete defence to this bond, or in other words, if it can never be enforced, why should the plaintiff recover against the defendant for not assigning it? It is of no value: it is as worthless as a piece of blank paper. The law compels no man to do an entirely vain thing. It subjects no man to damages for not doing an act perfectly nugatory. Ryan v. Watson, 2 Greenl. 382. In support of this position, there is also a very strong case, decided by this Court, and reported in 5 Day 128. Bacon v. Norton. There, in an action brought by the assignee of a note against the maker for fraud in taking a discharge from the promisee, it was holden, that usury might be set up between these parties as a defence. The court said, that the usury rendered the note void; and that the promisee, being convinced of that, though it was in the hands of a person ignorant and innocent of the usury, might well discharge it.

The great point is yet to be considered. Has the plaintiff obtained such a non est inventus on this execution, or has the principal so avoided, as that the plaintiff is entitled to any remedy against the bail? I am well satisfied, that both these questions must be answered in the negative. The construction of our statute is in entire conformity with reason. “When it appears, that there have not been reasonable endeavours, on the part of the creditor or officer, to levy the execution on the estate or person of the debtor, but rather an intention and endeavour to avoid doing it, in order to charge the bail; or if the bail render the body of the debtor, or he render himself to the officer, to be taken by the execution, at any time before the return day; the bail ought to be exonerated.” Fitch v. Loveland, Kirb. 384. “There ought to be the utmost fairness in the proceedings, in order to subject the bail.” Johnson v. Smith, 1 *389Root 374. “ A return made without the exercise of due diligence, to subject the bail, is fraudulent and void.” Edwards v. Gunn, 3 Conn. Rep. 318. These are some of the leading principles, adopted by our courts.

Aside from any authority, what principles ought to be adopted in this case? Has there been any avoidance? What is an avoidance? The act of avoiding or shunning. Here the debtor offers himself to the sheriff, to the attorney of the plaintiff and to the plaintiff himself, in discharge of his bail, while the execution is in full force, and in the hands of the attorney. He stays two or three days in Hartford, publickly. The attorney says to the bail: “I have nothing to do with him; you must keep him until the execution is out.” He then, as well he might, leaves Harford for Boston, the place oí his residence; and on the 3rd of October, the execution is delivered to the officer, who keeps it seven days, and returns it, on the 10th, indorsed with a non est inventus. Who can look at these facts, and not clearly see a set design, on the part of the plaintiff, to charge the bail—a studied avoidance of taking the body of the debtor? It would be a libel to call this conduct of the plaintiff a reasonable endeavour—due diligence—the utmost fairness, in attempting to take the body of the debtor. On the contrary, it is an attempt to entrap the bail against the honesty and justice of the case; and, as such, instead of being rewarded, should be censured.

The only authority cited by the plaintiff, is Stevens v. Bigelow, 12 Mass. Rep. 434. That case, when examined, appears not to contain a principle or dictum, in opposition to the opinion here expressed.

In my opinion, the rule must be discharged.

New trial not to be granted.