The declaration was for the penalty of $500, for a false return to a subpoena placed in defendant's hands, to be by him executed, as sheriff of Yadkin County.
A suit in equity was pending in the court of equity of Iredell County, between John H. Tomlinson, plaintiff, and B. B. Benham and W. H. A. Speer, defendants, which had been referred to W. P. Caldwell, Esq., clerk and master of the said court, to state an account between the parties. It was proved by Mr. Caldwell that on or about 18 November, *Page 358 1859, he issued a subpoena, in due form, directed to the sheriff of Yadkin County, commanding him to summon J. S. Claywell, witness for (470) plaintiff, to be and appear in Statesville, N.C. on 10 January, 1860, and that about the time of issuing said subpoena he either gave it to defendant Long or mailed it to him, directed to Yadkinville, the county seat of Yadkin County, of which the said Long was sheriff, and that the same was returned to him at Statesville on 10 January, 1860, indorsed, "Not to be found in my county." The day when the subpoena came to the hands of the defendant had not been indorsed on the process. J. S. Claywell testified that he had been a citizen of Yadkin County for ten years past, and was personally well known to the defendant; that he lived some fourteen miles from Yadkinville and was at home throughout December, 1859, except some five days immediately preceding Christmas day; that he returned home on Christmas day, and remained at home, about one mile from Jonesville, in Yadkin County, during January, 1860. The witness stated that he often crossed the river into Surry, but did not recollect that he was out of the county from 25 December, 1859, till 10 January, 1860.
R. M. Allison testified that he was in Yadkin County during the first week in January, 1860, and saw the witness Caldwell.
B. B. Benham, for the defendant, testified that the defendant Long came to his house, in Jonesville, in December, 1859, while Claywell was absent from the county, and told him he had a subpoena for Claywell to give evidence in behalf of Tomlinson in the suit aforesaid, and he told Long that Claywell had left on that day and would not return to Yadkin for two or three weeks. This evidence was objected to by plaintiff's counsel, but admitted by the court.
The defendant introduced E. C. Roughton, one of the deputies, who testified that on the day before the return day of the subpoena he went to the residence of the witness Claywell, but did not find him at (471) home; that Long's postoffice is Huntsville, ten miles from Yadkin, and twenty-five miles from Claywell's.
On this state of facts, his Honor intimated that the plaintiff could not recover, in deference to which he took a nonsuit and appealed. After some reflection upon the facts of this case, we arrive at a different conclusion from that of the court below.
It does not appear definitely upon what day in December the defendant received the subpoena. It was either delivered to him personally or *Page 359 transmitted through the mail from Iredell to Yadkin on the 10th; and as the distance is short, and we are certainly informed that he received it in that month on some day previous to Christmas, it is fair to conclude he received it as early as the 15th. Claywell, the individual to be summoned, had an established and well known residence in the county, and was absent from the county for five days only, immediately preceding Christmas day.
We attach but little importance to the distance between the sheriff and witness's residence. The sheriff must be able, either by himself or deputies, to discharge his duty in all parts of the county with proper official dispatch.
In like manner, we attach but little weight to the misinformation derived from Benham. The sheriff should assure himself of a fact upon which he bases a return by something more certain than the conjectures of wayside men.
Without criticising the words in which the return "Not to be found" is couched, but putting a construction on them most favorable to defendant, viz., that witness had not been found after due search, and our opinion still is that it amounts to a false return. It was not true thus to say by implication that proper search had been made.
If the sheriff desires to avoid the heavy penalty of the statute for a false return, he should in all cases of doubt return the facts, and not merely his conclusions. By doing so, if it should appear that (472) he has erred, he will have subjected himself to the penalty of $100 for not duly executing and returning, but not to the higher penalty for a false return. This last penalty is imposed only for returns false in fact, and not for those which are false only by way of inference (the facts being truly stated). This distinction is taken in the late case ofHassell v. Latham, 52 N.C. 465.
The law, as well as Christian morality, abhors falsehood. It is especially mischievous and odious in a public officer, and hence the severe penalty imposed upon it in The Code, ch. 105, sec. 17. It is not necessary there should be a criminal intent. This characteristic is probably absent from the present case. Falsehood, in fact, is the mischief guarded against. The rigor of the rule is essential to secure on behalf of the public a corps of officers diligent, circumspect, and truthful, qualities which will be regarded the more indispensable when we consider the numerous important and sacred interests committed to their charge.
We repeat that this is no hardship to the sheriff. If he be in any doubt as to the legality of his conclusions in making a return, let him return the facts and throw himself upon the judgment of the court. He can, in that way, avoid the penalty of a misstatement of fact, while *Page 360 he will fall, at worst, on the penalty for negligence, which is comparatively venial.
In the present state of the sheriff's return, we think it is false.
The nonsuit must, therefore, be set aside and a venire de novo ordered.
PER CURIAM. Reversed.
Cited: Albright v. Tapscott, post, 473; Harrell v. Warren, 100 N.C. 264;Campbell v. Smith, 115 N.C. 499.
(473)