Stealman v. . Greenwood

MacRae, J.: Plaintiff’s counsel readily concede the power of the Court to allow the amendment, but they deny that its effect is to discharge any part of the penalty, especially the part thereof which is said to belong to the plaintiff. They contend most strenuously that the Court has no right to “purge the vice” of the false return and discharge the penalty after the popular action becomes a private one of plaintiff by reason of his bringing suit. The authorities cited by the learned counsel for the plaintiff seem to establish the position that popular actions can only be barred, after suit brought, by a pardon, and possibly by a repeal of the penal statute. But the power of amendment in the Courts to make *358 the return speak the truth (the amendment, when made, relating back to the time of the return] is entirely distinct from the power to remit or to pardon, and has been too long established and is too well settled to be now disturbed. The statute, as interpreted in this State, imposing the penalty, even in cases of mere mistake, would seem severe and apparently harsh, but for the extreme importance both to public and private interest that these returns should in all cases speak the truth. Hence the discretionary power of allowing amendments in meritorious eases has always been liberally exercised. Albright v. Tapscott, 53 N. C., 473. In Hassell v. Latham, 52 N. C., 465, which was an action like the present, brought in the Superior Court for a false return in the County Court, where the Sheriff was allowed to amend in the latter Court, it was held that the plaintiff was not entitled to recover. While it does not appear in so many words that the amendment was made after suit brought, there is much to indicate that such was the fact. In Patton v. Marr, 44 N. C., 377, which was a motion to amerce for an insufficient return, it was held that the return was not sufficient, and the Court said: “ Nor can there be any doubt that the Court would have allowed the Sheriff (the defendant), if he had been here, to amend his return.” In Finley v. Hayes, 81 N. C., 368, the Court said: “It is inconceivable how it was that the defendant did not obtain leave to amend his returns só as to acquit himself of all penalty.” In Peebles v. Newsome, 74 N. C., 473, it is said that “any hardship resulting from this rule may be relieved, and will be relieved, by our law of amendment.” The plaintiff, by bringing this action, acquired no such vested right to the penalty that it might not be defeated by an amendment of the return. Murfree on Sheriffs, § 879. This power of allowing amendment is so deeply fixed into our judicial system that all persons bringing such actions as the present do so with notice that the return may be amended *359 and the penalty never recovered. There are many instances of amendment of process by which rights are acquired and lost. Defects in judgments may be amended even after a writ of error, and executions may also be amended after they have been acted upon, so as to render them a justification to the officer where otherwise they would not be, “although it thereby may bar an action of him who has been imprisoned on it, or had his property sold under i,t, while in an imperfect state. Bender v. Askew, 14 N. C. (3 Dev.), 149. No Error.