Martin v. Martin, 50 N.C. 349, 5 Jones 349 (1858)

June 1858 · Supreme Court of North Carolina

50 N.C. 349, 5 Jones 349

JOSEPH MARTIN v. JOHN MARTIN.

The penalty given by the 105th chapter, 17th section of the Revised Code, for making' a false return of process, applies to prooess in civil cases only, and not to that in criminal proceedings.

The return of “ not to be found ” on a capias, is not true, because of the defendant’s being out of the State at the time the return is made, if the the officer had an opportunity of making the arrest previously, while the process was in his hands,

ACTION of debt, for a penalty, tried before SauNDEbs, J., at the last Spring Term of Stokes Superior Court.

The plaintiff declared for the penalty of $500, given by the statute, Eev. Code, oh. 105, sec. 17, against a Sheriff for making a false return. The plaintiff exhibited in evidence a writ of capias in favor of the State against one James Martin, returnable to tlie October term, 1855, of States superior court, which had been placed in the hands of the defendant, as sheriff, more than twenty days before the return day, upon which he returned “not to be found.” It was also proved that in the summer of 1855, he met James Martin, the defendant in the capias, at a tax gathering in his county, and informed him he had a capias against him; Martin offered to give, as surety for his appearance, a person then present, but was put off, for the time being, by the sheriff. Before the company dispersed, he (James Martin) went again to the sheriff and proposed giving the bond, stating that his surety was an old man and wanted to go home, to which the sheriff replied that he was then busy, and it would do as well another time. The defendant in the capias, then went off without giving security for his appearance, and shortly afterwards left the State, and did not give security at all; neither was he ever taken into custody under the said capias.

The defendant contended 1st. That as the return was true, at the time it was made, the action could not be maintained for making a false return.

2nd. That the act of the General Assembly, on which this suit was brought, did not extend to process in behalf of the State in criminal cases, but was confined to process in civil cases.

The Court was of opinion, that under the lJth section of 105th chapter of the act in question, the sheriff was liable to a penalty of $100 for failing to execute the process, but not for the penalty of $500 for a false return, as the return was true at the time it was made. Plaintiff excepted. Yerdict for the defendant. Judgment and appeal.

Morehead, for the plaintiff.

MoLemi and Graham, for the defendant.

Pearson, J.

It is properly conceded, in this Court, that there is error in respect to the return’s not being false, “ because it was true in point of fact when made.” But we are of opinion with the defendant upon the objection arising out of the construction of the statute. Its provisions do not apply to a return made to a capias in a criminal proceeding.— The words of the statute, it is true, are very general: “ all writs and other process to him legally issued and directed.”— Eev. Code, cliap. 105, sec. VI. These general words are restrained by other parts of the section, i. e. “ one moiety to the party grieved.” It is evident that the word “pa/rty ” is here used to signify aywscwt/ — eithersome individual, or a corporate body other than the sovereign. “Where such process shall be delivered to him twenty days before the sitting of the court to which the same is returnable.” This excludes a process to arrest the body of one charged with an offence against the State; for the sheriff is bound to execute such process without reference to the time of its delivery to him. “ And, moreover, be further liable to the action of the party grieved, for damages.” This likewise excludes such process; for a neglect of duty, in respect thereto, is not redressed by-an action for damages in the name of the State, but by an indictment 'for a misdemeanor in 'office, as a high offence against the public.

The Court is of opinion that the provision of the statute does not apply to the case under consideration, and on that ground the judgment of the Court below is affirmed.

Per Cu-eiaM. Judgment affirmed.