#### JOHN H. TOMLINSON v. W. W. LONG.

The sheriff’s return on process in his hands, “not tobe found in my county,” implies that the person to be reached by the process, was not to be found after due search, and if the fact, thus implied, be untruly stated, the return is a false one.

Where a person, to be summoned by a subpoena, was at his home, in the sheriff’s county, for fifteen days preceding the day of the return of the process, though the sheriff lived twenty-five miles from him, and though he was informed that such person would continue out of the county, during al\ that time, it was held he was liable for the penalty for making a false -return, in saying that he was not to be found.

Action of debt for a penalty, tried before French, J., at the Spring Term, 1861, of Iredell Superior-Court.

The declaration was for the penalty of $500, for a false return to a subpoena placed in defendant’s bands, to be by him executed, as sheriff of Yadkin county.

A suit, in equity, was pending in the Court of Equity of Iredell county, between John II. Tomlinson, plaintiff, and B. B. Benham and IV. H. A. Speer, defendants, which had been referred to IV. P. Caldwell, Esq., clerk and master of the said Court, to state an account between the parties. It was proved by Mr. Ocddwell, that on or about the 18th of November, 1859, he issued a subpoena, in due form, directed to the sher*470iff of Yadkin county, commanding him to summon <T. S..Clay-well, witness for plaintiff, to be, and appear, in Statesville, N. C., on the 10th of January, 1860, and that about the time of issuing said subpoena, he either gave it to defendant, Long, or mailed it to him, directed to Yadkin ville, the county seat of Yadkin county, of which the said Long was sheriff, and. that the same was returned to him, at Statesville, on the 10th of January, 1860, endorsed, “Not to be found in my county.” The day when the subpoena came to the hands of the defendant, had not been endorsed on the process. J. 8. Olay well testified, that he had been a citizen of Yadkin county for ten years past, and was personally well known to the defendant; that he lived some fourteen miles from Yadkin ville, and was at home throughout the month of December, 1859, except some five days immediately preceding Christmas day ; ■ that he returned home on Christmas day, and remained at home, about one mile from Jonesville, in Yadkin county, during the month of January, 1860. The witness stated that he.often crossed the river into Surry, but did not recollect that he was out of the county from December 25th, 1859, till 10th January, 1860.

JR. M. Allison testified, that he was in Yadkin county during the first week in January, 1860, and saw the witness, Claywell.

JB. JB. Benham, for the defendant, testified that the defendant, Long, came to his house, in Jonesville, in December, 1859, while Claywell was absent from the county, and told him he had a subpoena for Claywell, to give evidence in behalf of .Tomlinson, in the suit aforesaid, and he told Long that Claywell had left on that day, and would not return to Yadkin for two or three weeks. This evidence was objected to by plaintiff’s counsel, but admitted by the Court.

The defendant introduced JE. O. 'Houghton, one of his deputies, who testified, that on the day before the return day of the subpoena, he went to the residence of the witnesss, Clay-well, but did not find him at home ; that Long’s post-office is *471Huntsville, ten miles from Yadkin, and twenty-five miles from Claywell’s.

On this state of facts, his Honor intimated that the plaintiff could not recover; in deference to which, he took a nonsuit and appealed.

Barber, for the plaintiff.

Fowle, Boyclen and Mitohell, for the defendant.

Manly, J.

After some reflection upon the facts of this case, we arrive at a different conclusion from that of the Court below.

It does not appear, definitely, upon what day in December the defendant received the subpoena. It was either delivered to him personally, or transmitted through the mail from Ire-dell to Yadkin on the 10th ; and as the distance is short, and we are certainly informed that he received it in that month, on some day previous to Christmas, it is fair to conclude he received it as early as the 16th. Claywell, the individual to be summoned, had an established and well known residence in the county, and was absent from the county for five days, only, immediately preceding Christmas day.

We attach but little importance to the distance between the sheriff and witness’ residence. The sheriff must be able, eithther by himself or deputies, to discharge his duty in all parts of the county, with proper official dispatch.

In like mannner, we attach but little weight to the misinformation derived from Beuham. The sheriff should assure himself of a fact, upon which he bases a return, by something more certain than the conjectures of wayside men.

Without criticising the words in which the return, “ not to be found,” is couched, but putting a construction on them most favorable to defendant, viz: that witness had not been iound after due search, and our opinion still is, that it amounts to a false return. It was not true, thus, to say, by implication, that proper search had been made.

If the sheriff desires to avoid the heavy penalty of the stat*472ute for afalse rebwm, he should, in all cases of doubt, return the facts, and not merely his conclusions. By doing so, if it should appear that he has erred, he will have subjected himself to the penalty of $100, for not duly executing and returning, but not to the higher penalty for a false1 return. This last penalty is imposed only for returns false in fact, and not for those which are false only by way of inference, (the facts being truly stated). This distinction, is taken in the late case of Hassel v. Latham, 7 Jones, 465.

The law, as well as Christian morality, abhors falsehood. It is especially mischievous and odious in a public officer, and hence the severe penalty imposed upon it in the Code, chap. 105, sec. 17. It is not necessary there should be a criminal intent. This characteristic is probably absent from the present case. Falsehood, in fact, is the mischief guarded against. The rigour of the rule is essential to secure, on behalf of the public, a corps of officers, diligent, circumspect and truthful, qualities which will be regarded the more indispensable, when we consider the numerous important and sacred interests, committed to their charge.

We repeat that this is no hardship to the sheriff. If he be in any doubt as to the legality of his conclusions in making a-return, let him return th© facts and throw himself upon the-judgment of the court. He can, in that way, avoid the penalty of a mistatement of fact, while he will fall, at worst, on-the penalty for negligence, which is comparatively venial.

In the present state of the sheriff’s return, we think it i& false.

The nonsuit must, therefore, be set aside, and a mnwe d'& novo ordered.

Per Curiam,

Judgment reversed.