Vide State v. Johnston, post 293. Holding v. Holding. 2 Cur. Law Rep. 440,
M'Murphey v. Campbell, 2 N.C. 208, 1 Hayw. 208 (1795)
April 1795
·
North Carolina Superior Court
2 N.C. 208, 1 Hayw. 208
M‘Murphey v. Campbell.
Process returned by the Deputy Sheriff, should be in the name of the High Sneriff, anduiot m the name of the Deputy, for the High She. riff; but a return in the latter mode was supported.
Campbell had been summoned on the part of M‘Mur-phey to attend this court as a witness in his behalf; and when the (rial came on, failing to appear, was called upon his subpoena, and his default recorded j whereupon a sci. fa. issued against him, and now his defence was, that he never was summoned by any proper officer. The subpoena when produced, appeared to have been served fay tu'- 0 puty Sheriff, and returned by him in his own name for i.ne High Sheriff, and not in the name of fhe High Sheriff, as it should have bren- — whereupon Mr. Spiltar objected that the Deputy Sheriif was not a sworn officer, which was conceded in the present case, and that *209therefore s.s the return was made by him, and not in the name of Hie principal, it was no1, a good service. Per curiam, the return here is for the principal by th i Deputy, which is nearly the same tiling as if the return had been “executed,” and the name of the principal subscribed, and ¡he words “ by B. Deputy .Sheriff” added, which b- the usual course. This return is indeed a little irregular, but it, cannot now be amended, ¡lie principal being dead, and file Deputy removed out of the State. Such returns however, though irregular, have prevailed very generally through the country for along 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. Tin* course of practice frequently makes the law, and must, be given way to where a sudden disallowance of i¡ would be followed by a great public evil, in strictness however, there is no doubt, hut that ail returns should be made in the name, of the High Sheriff Salk. 06. Bac. Mr. 43 7. 1777. e. 8, 5. 5. So the objection was overruled, and the Plaintiff had judgment.