Martin v. Martin, 50 N.C. 346, 5 Jones 346 (1858)

June 1858 · Supreme Court of North Carolina

50 N.C. 346, 5 Jones 346

JOSEPH MARTIN v. JOHN MARTIN.

Where'S,•sheriff returns upon a fl. fa., two credits for money received thereon, >at 'different times, and, suppressing a third credit, returns not satisfied, 'it was 'Held that such return was false, and subjected Mm to the penalty of $500, under Rev. Code, ch. 105, sec. 17.

The penalty of $500 given by Rev. Code, ch. 105, sec. 17, may be sued for ■in the name of the person bringing the action alone, and he need not set out that any one else is to share the damages with him; as that is shown, by the act itself.

ActioN of debt, tried before Caldwell, J., at the Spring Term, 1858, of Stokes Superior Court.

The plaintiff declared for the penalty of $500, given by the 105th chapter, section 17, of the Revised Code, against defendant, as sheriff, for making a false return. The proof was, that a writ of fi&ri facias was issued from the Court of Equity •of Stokes county, in favor of one John Brown against the plaintiff in this case, Joseph Martin, Benjamin C. Tucker and Jacob S. Salmons, for the sum of $1000, to be discharged by the payment of $721,75, with interest on $383, from April Term, 1856, and costs $37,87, returnable to the Spring Term, 1857, of the said Court, which was placed in the hands of the defendant, as sheriff of that county, more than twenty days previous to the return term.

The sheriff returned this writ at the said Spring Term, 1857, with two credits, endorsed as follows:

“ January 15th, 1857. Eeceived on this fi. fa., by sale of defendant’s property, $226,27, after deducting the sheriff’s fees, $37,27, leaves a nett of $189, in sheriff’s hands.”

“ March 9th, 1857. Eeceived on this execution one hundred dollars.” There was also endorsed on the execution, “ not satisfied.”

The plaintiff read in evidence the defendant’s receipt for $365, received from one of the defendant’s in the execution, in part of the fi. fa., dated 4th of February, 1857, which sum was not endorsed on the fi. fa.

The defendant’s counsel contended that the plaintiff could not recover:

1st. Because the failing to endorse the credit of $365, paid on 4th of February, 1857, did not make the return false, and was only such an act as would subject the sheriff to an action on his official bond.

2nd. Because the writ and declaration was in the name of plaintiff alone, and did not set forth that the plaintiff sued, as well for the person aggrieved, as for himself.

3rd. That the plaintiff had not shown that he was aggrieved by the defendant’s omitting to endorse the credit of $365 on the process:

Consequently, that the defendant did not owe, or detain from the plaintiff $500.

A verdict was taken in favor of the plaintiff for $500, subject to the opinion of the Court.

The Court being of opinion with the defendant, set aside the verdict and entered judgment of nonsuit, from which the plaintiff appealed.

Morehead, for the plaintiff.

McLean and Graham, for the defendant.

Pearson, J.

“ Not satisfied,” is an insufficient return to a writ of fieri facias,, for the reason, that it does not set forth the ground upon which the officer has faile4 to make the money. But it may, nevertheless, be a false return : for instance, suppose the officer has made-the full amount required by the execution, and return it “ not satisfied,” such a return is clearly false: it may be, if he has made only a part 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 where, 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- resjaect to the payment suppressed ; for, in that case, the return cannot be taken as having referred to the fact,, that it is not literally" satisfied.

The objection, that it is not set out, either in the- writ or the declaration, that the plaintiff sued as well for the use of the party aggrieved, as for himself, is not well taken. The statute confers upon the informer the right to sue. It imposes a penalty of $500, “ one moiety thereof to the party aggrieved, and the other, to him that will sue for the same,” consequently, lie is the only party plaintiff; and there can be no more necessity for setting out the persons for whose use the action is brought, than there is where a bond is sold without endorsement; in which case the action must be in the name of the obligee, and the addition, that it is brought for the use of the purchaser, has no legal effect, and he is not noticed as a party of record, such addition being treated merely as a memorandum, showing to whom the money may be paid; which purpose is answered in this case, by the averment in the declaration that the debt is due by force of the statute, whereby it appears that the party aggrieved is entitled to one moiety. The rule of proceeding is so stated by Chitty, 1 vol. 128 : “ Where a penal statute gives the whole, or a part of a penalty, to a common informer, and enables him to sue generally for the same, debt is sustainable, and he need not declare qui tarn, unless where a penalty is given for a contempt.”

Harrington v. McFarland, Conf. Rep. 408, which was cited in the argument, proves too much : for the declaration makes the State a co-plaintiff with the informer: whereas, although the action was brought for the use of the State as well as himself, he had no right to join the State as a plaintiff, but was required to sue in his own name, so as to be alone responsible for the costs of the action, as plaintiff of record. But we consider the authority of Chitty, and the cases cited by him, conclusive.

The judgment must be reversed, anda judgment for the plaintiff upon the verdict.

Pee Cueiaji, Judgment reversed.