Finley v. . Hayes

Dillaed, J. On the appeal to this court the only matter for our consideration is as to the exceptions for evidence excluded, and to the charge of His Honor given and refused on the subject of false returns. 1. The stringent rule has been adopted in this state, that •every return untrue in fact is a false return within our stat.ute upon the subject of false returns, although the officer may be mistaken in the matter or insert the fact in his return by inadvertence. Albright v. Tapscott, 8 Jones, 473; Peebles v. Newsom, 74 N. C., 473. It is immaterial that the •officer had no selfish purpose to .subserve, or was unmoved by an criminal intent. If in returning to the court his action under an execution,, his return is false in its facts or any of the facts touching the things done under it, he is as well exposed to the penalty of $500 denounced against a false return, as if the false facts were wilfully and corruptly inserted. In this case the two tracts of land were certainly sold under the executions, the one on the first Monday in February, and the other at the court in April; and the return of the defendant of a sale of both on the first Monday in February was a mistake, but yet it was a falsehood in the sense of our .statute as settled by the courts, and exposed the party to the penalty. It was therefore not error in His Honor to decline to •charge the jury that a mistake of fact as to the date of the *371 sale would not excuse or free the defendant from liability to the penalty sued for. 2. As to the application of the proceeds of sale of the two tracts of land on whicli the plaintiff’s executions were levied, the return of the sheriff was that he had applied the same to two executions, one in favor of the state and the other in favor of John A. Parks, numbered respectively 107 andl88-, and the jury in response to an issue as to this matter found that the return was false. On examination of the case of appeal and the two executions, Nos. 107 and 188, to which the proceeds of sale according to the sheriff’s return were applied, and the other testimony in the cause, it is evident that the proceeds of sale of one of the tracts was in part applied to execution No. 188, and the residue of that fund and the entire proceeds of the sale of the other tract were not applied to No. 107, but to some other execution of prior lien ; and so, as to the fact of, application, the return was false in locating the proceeds on the two executions Nos. 107 and 188, by mistake or inadvertence, just as we have said it was in regard to the date of sale. And the defendant cannot acquit himself of the penalty for this false fact in his return, any more than he can for that as to the date of the sale. 3. In the course of the, trial the defendant claimed that the proceeds of sale not applied to No. 188 were applied to an execution, No. 245, and to others which were returnable to fall term, 1869, and he proposed to read them and the returns endorsed thereon in evidence, but the court excluded the proof and the defendant excepted. There was no error as it seems to us in the rejection of the proposed evidence. The return of application to Nos. 107 and 188 being shown to be untrue by the return of the sheriff on those executions, and conceded to be false in the offer of the rejected evidence, It was immaterial to show the application to other executions; for, even if shown, the false fact returned of applica *372 tion to Nos. 107 and 188 would still remain, and under the rigid role adopted by our courts, the liability to penalty would still exist. 4. Besides the exception above disposed of, the defendant in his answer made objection to the joinder of counts or causes of action for distinct penalties in the same action. The court overruled the objection on the ground that the matter was apparent on the complaint and should have been taken advantage of by demurrer, and not being so done, it was waived. We concur in the ruling, of His Honor and for the reason assigned by him. It is thus seen that no error is found in the exceptions of the defendant, and so, it only remains to affirm the judgment of the court below, and this we do with reluctance, for it is evident that the untrue facts imputed to the sheriff’s return were without fraud and benefit to him, and without any damage to the plaintiff. The mistake made deprived the plaintiff of no part of the proceeds of the lands sold, as the executions Nos. 107 and 188, having prior lien, were more than sufficient to absorb the entire proceeds; and it is inconceivable how it was that the defendant did not obtain leave to amend his returns so as to acquit himself of all penalty, which no doubt would have been allowed him if he had asked it. It is a very hard case on the defendant,, but it is our duty to declare and apply the law as it is. There is no error. No error. Affirmed-