Harrell v. . Warren

Smith, C. J., (after stating the facts). The case has not been argued for defendant, and besides the specific grounds assigned in the demurrer, we meet at the threshold the question, whether any cause of action upon the facts stated, accrues to the plaintiff, and this objection has been disposed of in cases heretofore before the Court. In Martin v. Martin, 5 Jones, 346, it is decided that any person may sue for the penalty, and he need not mention the other party to whom the statute gives one moiety of the recovery. The same point was made, and though not specially mentioned in the opinion, was necessarily overruled in the judgment rendered for the plaintiff, in the later case of Peebles v. Newsom, 74 N. C., 473. *264 Nor is the objection taken in the demurrer to the jurisdiction tenable, based upon the suggestion that only $100 are recoverable according to section 1112 of The Code, the claim to which must be made in a Justice’s Court. The present action is not brought under that section which belongs to the chapter entitled “ Crimes and Punishments,” but to enforce the enactment contained in § 2079, which has long been the law, and which this Court decided, in Martin v. Martin, 5 Jones, 349, was restricted to civil process and false returns made thereto by Sheriffs. At the time of this ruling the penalty of $100, imposed for false .returns made to criminal process, was restricted to constables and forms part of the chapter (§ 118) devoted in the Revised Code to crimes and punishments. In its transfer to the present Code, its scope has been enlarged and made to embrace Sheriffs, constables and other officers, State or municipal, but is still confined to criminal process delivered to such officer as is bound to execute it. There is, therefore, no unauthorized assumption of jurisdiction, and the suit is brought in the proper Court. The main and essential matter is, has a false return been made? Not an insufficient return — for this is punished less rigorously and in a more summary way. There must falsehood in the statement of facts be found in the return in order to incur the $500 penalty, and for this, inadvertence or mistake furnishes no excuse and no protection to the officer. So it is held in Tomlinson v. Long, 8 Jones, 469; Albright v. Tapscott, Ibid., 473; Finley v. Hayes, 81 N. C., 368, and in Peebles v. Newsom, supra. It appears from the plaintiff’s allegation, that the defendant refused, on demand of the plaintiff, who was defendant in the execution, to separate from the stock of goods levied on and assigned to the plaintiff his exempted part thereof, the reason for not doing which is set out in the Sheriff’s return. There is no averment in the complaint that the *265 statement is untrue, or that the demand of the Sheriff for his fees was not made and refused, and that in consequence the Sheriff did not proceed further. There is, so far as shown, no falsehood in this part of the return, and'no action can be maintained for the statutory penalty given for a “false return.” The numerous adjudged cases fully sustain this interpretation of the enactment and of its purposes, as will be seen by a reference to some of those most pertinent to the present inquiry. A Sheriff’s return, “ not to be found in my county,” was declared to be false when no effort had been made to find the party, because “ not to be found ” implies and means that a search has been made, and this is untrue; Tomlinson v. Long, 8 Jones, 469. “ Too late to execute,” was so held in Lemit v. Freeman, 7 Ired., 317, where the process passed into the Sheriff’s hands more than ten and less than twenty days before the term of the Court to which it was to be returned. In Lemit v. Mooring, 8 Ired., 312, the Sheriff sought to ex-' cuse the neglect to execute the writ, and returned, in substance, that himself and his deputies were officially and so constantly employed as to be unable to serve it, after it was received; in reference to which, Ruffin, C. J., remarks, in regard to the incurring the penalty, that “to have that effect, it (the return) must be false in point of fact, and not false merely as importing, from facts truly stated, a wrong legal conclusion.” But the subject is very clearly discussed, and the true meaning of the statute, in its application to these officers, ascertained and declared by the late Chief Justice, in the opinion delivered by him in Martin v. Martin, supra, from which we quote, instead of further comment of our own, as settling the law: “ ‘ Not satisfied/ is an insufficient return to a writ offieri facias, *266 for the reason, that it does not set forth the ground upon which the officer has failed to make the money. But it may, nevertheless, be a false return. Por instance, suppose the officer made the full amount required by the execution, and returned it “not satisfied.” Sucha return is clearly false; it maybe, he has made only apart of the amount, and without any reference to the part received, returns it ‘ not satisfied it would not be a false return — because, taking it literally, the execution is not satisfied, and the return may have referred to that part merely. But when, as in our case, the return is made in reference to the part received, and sets forth a payment in January, and another in March, suppressing the fact of the other payment in February, then ‘ not satisfied’ is used in the sense of not satisfied as to the residue, and is necessarily false, in respect to the payment suppressed.” This is a very lucid exposition of the enactment, and dispenses with further observations from us. Assuming, as we must, for the purpose of the demurrer, the truth of every averment of fact contained in the complaint, there is no conflict between it and the return that brands the latter with falsehood, and such repugnance is essential to the action. The defendant, in order to -a full and proper response to the writ, ought to have made mention of the small payment made him, and in this particular, the return is defective, yet he says nothing to the contrary — nothing false in fact; and the omission to do what ought to have been done in making his return, does not bring the Sheriff under this condemnation of the statute — an enactment so severe as not to excuse when there is a mere mistake, and no intentional deceit practiced. Peebles v. Newsom, supra. There is error. The judgment must be reversed, and the demurrer sustained. Error. Reversed.