The action was brought for the penalty of $500. A subpoena came to the hands of the defendant, as sheriff of Alamance County, commanding him to summon one Cynthia Randleman, etc., as a witness for the plaintiff. The sheriff's deputy, to whose hands the process came, summoned one Julia Randleman, the wife of the defendant in the suit, and did not summon Cynthia Randleman, and did not have an opportunity of doing so, for she was not in the county during the period prescribed for the execution of the writ. The writ was nevertheless returned as "executed."
The court was of opinion that on this state of facts the plaintiff was entitled to recover, and so instructed the jury, who returned a verdict for the plaintiff, and judgment being given thereon for plaintiff, the defendant appealed. The return of the sheriff, which is the subject of this action, is certainly untrue. We have held at this term in Tomlinson v. Long, ante, 469, that it is not necessary the officer should be convicted of any criminal intent. *Page 361
It follows, therefore, that the return is false in the sense of the statute, Rev. Code, ch. 105, sec. 17, and that the defendant, in the present state of the return, is subject to the penalty of $500. We refer to what is said in Tomlinson v. Long as containing the reasons that (474) control our judgment in this.
The great importance of securing for these returns absolute verity, being quasi records, and the strong temptations which exist to cover over omissions by the technical form of a return, lead us to adopt the stringent rule that every untrue return, in fact, is a false return within the purview of the statute.
It is not difficult to conceive of cases in which the sheriff might be deceived into a false return without laches on his part. In such cases the power of allowing amendments so as to state the facts of the case should be liberally indulged by the court. By such means any surprise into which the officer might have fallen would readily be obviated.
We concur, therefore, entirely with the court below in its judgment as to the character of this return.
But there is an irregularity in the verdict for which the judgment must be arrested. The action is properly one of debt. The plea is nil debit. The verdict finds all issues in favor of the plaintiff and assesses his damages at $500 and interest.
This is not such a verdict as consists with the pleadings. It would have been technical and proper in an action upon the Case for damages, which are secured by the same statute that gives the penalty, but is insensible as a finding in an action upon the statute for the penalty. It is not responsive to the issues, and there can be no judgment upon it; Archbold's N. P., 350.
PER CURIAM. Let the judgment be arrested.
Cited: Finley v. Hayes, 81 N.C. 370; Harrell v. Warren, 100 N.C. 264;Stealman v. Greenwood, 113 N.C. 358;Campbell v. Smith, 115 N.C. 499.
(475)