#### JOHN G. ALBRIGHT v. JOHN TAPSCOTT.

.A return made by a sheriff, that is false ia fact, -although the officer was mistaken in the matter-as to which -he -made his return, will, nevertheless, subject him to the penalty for a false return.

3n an action of debt for a penalty, is which nil debit is pleaded, a verdict finding all issues in favor ef the plaintiff and assessing his damages to $500, will not sustain adjudgment -of'¡recovery.

Action of ¡debt .against the defendant, as sheriff of Alamance, for making a false return, tried before Bailey, J., at the Eall Term, 1861.

The action was brought for the penalty -of $500.. A subpoena came to the hands of the defendant, as sheriff of Alamance county, commanding him to summon one Cynthia Bandleman, &c., as a witness for the plaintiff. The sheriff’s -deputy, to whose hands the. process came, summoned .one Julia Bandleman, the wife of-the defendant, in the suit, and did ¡not summon Cynthia Bandleman, and did net have an opportunity of doing so, for she was not in the county during-the .period prescribed for -the execution of the writ. The writ was, nevertheless, returned as 14 executed.”

The Court was of ©pinion, that on this state of facts, the plaintiff was entitled to recover, and so instructed the jury, who returned a verdict for the plaintiff, and judgment ¡being .given thereon for plaintiff, the defendant appealed.

No counsel appeared for the plaintiff-in this Court

Graham, for the defendant.

Manly, J.

The return of the sheriff, which is the subject •of this action, is certainly untrue. We have held, at this term, in the-case of Tomlinson v. Tong, (ante 469) that it is snot necessary the officer should be convicted of any criminal intent.

It follows, therefore, that the return is false, in the sense of the statute, Bev. Code, chap. 105, sec. 17, .and that the defendant, in the present state ¡of the return, 3s subject to the *474penalty of $500. We refer to what is said in the case of Tomlinson v. Long, as containing the reasons that control our judgment in this.

The great importance of securing for these returns, absolute verity, being quasi records, and the strong temptations, which exist to cover over omissions by the technical form of a return, lead us to adopt the stringent rule, that every untrue return, in fact, is a false return, within the purview of the statute.

It is not difficult to conceive of cases, in which the sheriff might be deceived into a false return without laches on his part. In such cases the power of allowing amendments, so as to state the facts of the case, should be liberally indulged by the court. Ey such means, any surprise, into which the officer, might have fallen, would readily be obviated.

We concur, therefore, entirely with the Court below, in its judgment, as to the character of this return.

But there is an irregularity in the verdict, for which the judgment must be arrested. The action is,, properly, one of debt. The plea is nil clehet. The verdict finds all issues in favor of the plaintiff, and assesses his damages to $500, and interest.-

This is not such a verdict as consists with the pleadings. It would have been technical and proper, in an action upon the case, for damages, which are secured by the same statute that gives the penalty, but is insensible as a finding in an action, upon the statute, for the penalty. It is not responsive to the issues, and there can be no judgment upon it; Archbold’s N. P. 350.

Per Curiam,

Let the judgment be arrested.