29 N.C. 317 | N.C. | 1847
If Hathaway had sued the defendant for not executing the writ, or for a false return of non est inventus, it would have been incumbent on him to allege and establish that the defendants in the writ were in the sheriff's county. But that circumstance has no application to an action for the penalty for such a return as this, which falsely alleges that the writ came to hand too late to be executed — even if the defendants therein were in the county.
The case, therefore, depends on the second point made on the trial, which is the only one which is argued here.
The act of 1777, ch. 115, sec. 14, provides that all writs in the Superior Courts shall be executed at least ten days before the beginning of the term to which they shall be returnable, and that process executed at any other time shall be adjudged void on the plea of the defendant. Rev. Stat., ch. 31, sec. 53. The act of the same year, ch. 118, sec. 5, enacts that every sheriff shall execute all writs to him directed, and make due return thereof under the penalty of £ 50 (fixed at $100 in 1821) for each neglect, where the process is delivered twenty days before the sitting of the court to which it is returnable, to be paid to the party grieved, by order of the Court on motion. The section then proceeds: "And for every false return the sheriff shall forfeit and pay £ 50 (raised to $500 in 1836), one moiety thereof to the party grieved and the other moiety to him or those who will sue for the same, and be, moreover, liable to the action of the party grieved for damages." Rev. Stat., ch. 109, sec. 18.
In the first place, it seems clear that the return is false; for the writ was delivered in time to give the sheriff seven clear days in which he might have served the writ. It did not "come to hand too late to executein time." Indeed, the defendant's counsel admitted that an action would lie on this return for the party grieved for his damages. He contended, however, that the penalty was not given in such a case, but that the correct exposition of the act is that, as the first clause gives (319) the amercement for not making any return only when the writ has been delivered twenty days, the second clause gives the penalty for the false return of only such a writ as that before specified, that is to say, one delivered twenty days. But the language of the two parts of the section does not bear out that construction. The amercement is given expressly, and only, for not returning a writ that had been delivered twenty days at least. The succeeding clause, which gives the penalty *225 for a false return, is not thus expressly restrained to a writ that had been thus long delivered; nor does it use the words "such writ" or any other term of reference to the preceding provision. But in the most enlarged phrase it declares that for every false return the sheriff shall incur the forfeiture. If, however, the two cases, of making no return and of making a false return, stood on the same reasons, the Court, in order to effectuate the apparent legislative intention, would probably feel authorized to restrain, by construction, the general terms used respecting the false return to the particular case before specified, of a writ delivered twenty days. But the two duties are very different. It was well understood that sheriffs could not return writs to various courts in distant parts of the State if the parties were at liberty to put them into his hands up to the last day. Therefore, the law does not give an amercement to one who will not return it. But no such reason applies to a false return; for the fault in that case is altogether on the part of the officer. He may not be obliged to go to the court or return the writ — at least, not under pain of amercement. But if he does go there and undertake to return the writ, he ought to return it truly. There is no reason why he should not. If he had served the writ, as he might, surely the law, although it would not impose a fine for not returning it, would not leave it to him to return cepi corpus or non est inventus at his option. The act never meant to confer the privilege of falsehood in any case, though in some cases it would not fine for not making a (320) return. Therefore, there is no ground on which the court is at liberty to disregard the words of the statute by holding that the forfeiture is not incurred by "every" false return.
Some doubt was at first entertained whether this return of "too late to hand" was in its nature such an answer to the writ as to amount to one of those returns which the Legislature meant. But upon consideration we think it is. It is a recognized return, and has long been. Com. Dig., Return D. 1, F. 2, 3. If false, it works a prejudicec [prejudice] to the party like other false returns. Indeed, one of the objects of the St. 13 Ed. I., ch. 39, was to give a remedy for falsely making this return of Tarde. After reciting that sheriffs will not return writs, and also that they return them falsely, it provides that "such as do fear the malice of sheriffs shall deliver their writs in the open county, and may take of the sheriff or under-sheriff a bill, wherein the names of the demandants and tenants mentioned in the writ shall be contained, and that the seal of the sheriff or under-sheriff shall be put to the bill for a testimony, and that mention shall be made of the day of deliverance of the writ; and that if the sheriff will not return writs delivered to him, and it be found by inquest before the parties of assize that the writ was delivered to him, then damages shall be awarded to the plaintiff or defendant"; *226 "and by this means," it is added, "there shall be remedy when the sheriff returneth that the writ come too late, whereby he could not execute the King's command." So it appears clearly enough that this is one of those false returns anciently complained of as being made by the malice of sheriffs, and remedied by act of Parliament. Other parts of our act of '77 which require the sheriff to mark on the process the day he receives it, and giving the forfeiture and damages for a false return, have the same purpose. It is said, indeed, by Chief Baron Comyns that Tarde is not a good return upon a capias ad respondendum. He (321) cites no authority for the position and assigns no reason for it, though, doubtless, it may be received as law in England upon his authority alone, and the reason may lie in the nature of that writ there. But as by our statute it is expressly made the leading process, and the day of its delivery is to be marked on it, and a time is limited for its execution, it is, we think, within the meaning of that part of the act of '77 which makes it penal on the sheriff to make a false return of a writ.
The judgment, therefore, must be reversed and judgment entered for the plaintiff according to the verdict.
PER CURIAM. Reversed.
Cited: Lemit v. Mooring,
