Hassell v. . Latham, 52 N.C. 465

Hassell v. . Latham

52 N.C. 465 | N.C. | 1860

The action was brought against the defendant for making a false return as sheriff, on a declaration in ejectment, returnable on the second Monday of March, 1859, the return day of the next county court. It appeared that the paper in question was received on 8 March, 1859, and the defendant, as sheriff, endorsed thereon, truly, the (466) day of its coming to hand. The return made by him on the said declaration was, "Too late to hand." It appeared also that between that day and the return day there were more than five clear days intervening. Afterwards, by leave of the county court, the sheriff amended his return by striking out "Too late to hand," and returning and substituting as follows: "This writ came to hand Tuesday evening, 8 March, 1859, and from that day till Thursday, which was too late to execute. I and my deputies were engaged in returning writs, etc., in my hands before this writ was received, so that I could not serve this writ on the defendant, who lives 20 miles from New Bern, where I then was attending to other business of my office, and during which time I did not see the defendant."

The court instructed the jury that the plaintiff was not entitled to recover on this state of facts. Plaintiff excepted.

Verdict and judgment for defendant, and appeal by the plaintiff. This is an action for the penalty of $500 under the provisions of our Code, which compels the sheriff to make true return of all process to him directed. Rev. Code, ch. 105, sec. 17.

To subject one to the heavy penalty of the statute, the falseness must be stated as a fact, and not merely by way of inference from facts.

An instance of the former kind is found in Lemit v. Freeman,2 N.C. 317, where the return was simply "Too late to hand," which was held to be false, when the sheriff was known to have had it in his hands seventeen days. An instance of the latter will be found in Lemitv. Mooring, 30 N.C. 312, where the return was, "This writ came to hand on 22 February, 1847, during the term of Martin Superior Court of law, and from that day until Friday, inclusive, of (467) *360 that court, I and my deputies were engaged, so that I could not serve said writ on defendant, who lives 15 miles from the courthouse," etc., and this was held to be not a false return. If anything was false about it, it was a mere inference from facts truly stated.

The return in the case before us is, "Received 8 March, 1859; too late to hand." This falls directly within Lemit v. Mooring, supra. The day of its reception is endorsed; the day of its return is known; the "Too late to hand," in this case, is merely a false inference, if false at all. The distinction between our case and Lemit v. Freeman is that in the latter no facts are given other than "Too late to hand"; and, standing thus alone, it is a statement to the effect that five days did not intervene between its reception and return day, which was false in fact.

The amendment of the sheriff's return, which was allowed by the County Court of Craven, did not in any respect alter its character. It was still a statement of facts with a false inference. Indeed, the amended return seems to have been copied from the return made by the sheriff in Lemit v.Mooring, and the latter case would, therefore, be a direct authority against the maintenance of this action upon the amended return. So that, whichever way you take it, upon the original or upon the amended return, the action cannot be supported.

This makes it unnecessary for us to consider the propriety of the amendment allowed by the county court. The action could not be maintained upon the return in either form, and the instruction of the court below was correct.

PER CURIAM. No error.

Cited: Tomlinson v. Long, 53 N.C. 472; Stealman v. Greenwood,113 N.C. 358; Campbell v. Smith, 115 N.C. 499.

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