The action, we think, lies for the two plaintiffs. The act gives the penalty, one moiety to the party grieved and the other moiety to him orthose that will sue for the same. These plaintiffs fill both characters, and are entitled to the whole recovery.
It was not correct that the defendant's liability depended at all upon the ignorance of the deputy, who made the return, of its falsehood, if in fact it was false. That might, perhaps, affect the liability of that deputy, if the defendant sought a recourse on his deputies for a loss sustained by him in the premises. But as between the plaintiffs and the defendant the return is that of the defendant; and as he is liable for the acts and omissions of his deputies, the return is to be considered as having been made by himself with all the knowledge of the facts possessed by both or either of the deputies. It is his fault to have deputies who will not communicate, the one to the other, such acts of the one as are material to a return which the other is to make; and the sheriff cannot be excused for a false return by the belief of a deputy who made it that it was true. That, however is not of so much consequence in the case, if the return be such as ought to have been made, that is, was true. (335)
Upon that point the opinion of the Court is for the plaintiffs. When the defendant in a writ is openly and at large in the county,non est inventus is a false return; and if he cannot be taken elsewhere, the statute requires, moreover, that the sheriff should go to his place of abode before he makes that return. In this case, however, the party was actually found by the deputy who had the writ, and he conversed with him, as we must take it, at the ordinary distance from each other. It is stated, indeed, that there was evidence that the deputy "attempted to arrest Bowles and failed." We are not informed what were the efforts to make the arrest, nor why they were not successful. But the facts as stated do not justify the return as to its truth in fact. It may be admitted, he was not obliged to return cepi corpus on those facts. Yet, certainly, he could not truly return non est inventus, any more than he could have done it if he had actually taken Bowles and he had been rescued. As the sheriff's returns cannot be traversed, and the only remedy for a false return is by action, it is right that the returns should be required to be made strictly according to the facts. If, then, the deputy, after finding Bowles, really endeavored to arrest him, and was prevented by any sufficient cause, the defendant should have returned the facts in excuse for not taking the body, and not return, generally, non est inventus, contrary to the fact. Rescue is a good return in excuse. May v. Sheriff, Cro. Jac., 419. And it is held here that the sheriff may return that he did not take the body because he was kept off by force of arms. Crumpler v. Glisson, 4 N.C. 516. For the *Page 236 sheriff is not obliged to summon the power of his county upon mesneprocess. But we do not see, here, any facts that could have excused the failure to arrest Bowles. They ought to have been set forth, so that the Court could judge of their sufficiency. It was erroneous to (336) leave that question to the jury, as a general inquiry whether, in their opinion, the officer made reasonable efforts to make the arrest; for what is an excuse in such a case is a matter of law, after the facts are ascertained. Perhaps there may have been a case upon which the court to which the writ was returnable might with propriety have been applied to for leave to amend the return. But in this action, however hard, the sole inquiry is whether the return, as it stands, be true or false, and it is not competent to the jury to palliate the falsehood by weighing excuses for not fully executing the writ. The judgment must, therefore, be reversed, and a venire de novo awarded.
PER CURIAM. Venire de novo.
Cited: Lemit v. Mooring, 30 N.C. 314; Swain v. Phelps, 125 N.C. 44. *Page 237