McMurphey v. . Campbell

The return here is for the principal by the deputy, which is nearly the same thing as if the return had been "executed" and the name of the principal subscribed, and the words "by A. B., Deputy Sheriff," added, which is the usual course. This return is indeed a little irregular, but it cannot now be amended, the principal being dead and the deputy removed out of the State. Such (182) returns, however, though irregular, have prevailed very generally through the country for a long time, and the disallowing them would be productive of terrible inconvenience. Communis error facit jus is a maxim we do not approve of, but it must sometimes be submitted to for the sake of avoiding confusion. The course of practice frequently makes the law, and must be given way to where a sudden disallowance of it would be followed by a great public evil. In strictness, however, there is no doubt but that all returns should be made in the name of the high sheriff. Salk., 96; Bac. Abr., 437; 1777, ch. 8, sec. 5. So the objection was overruled, and the plaintiff had judgment. See S. v. Johnston, post, 293; Holding v. Holding, 4 N.C. 324. Cited: Dobson v. Murphy, 18 N.C. 590; Washington v. Vinson, 49 N.C. 381;Brickhouse v. Sutton, 99 N.C. 109. *Page 132