{
  "id": 1961007,
  "name": "JOHN H. TOMLINSON v. W. W. LONG",
  "name_abbreviation": "Tomlinson v. Long",
  "decision_date": "1862-06",
  "docket_number": "",
  "first_page": "469",
  "last_page": "472",
  "citations": [
    {
      "type": "nominative",
      "cite": "8 Jones 469"
    },
    {
      "type": "official",
      "cite": "53 N.C. 469"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "7 Jones, 465",
      "category": "reporters:state",
      "reporter": "Jones",
      "case_ids": [
        2088586
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/52/0465-01"
      ]
    }
  ],
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  "last_updated": "2023-07-14T21:05:38.635812+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "JOHN H. TOMLINSON v. W. W. LONG."
    ],
    "opinions": [
      {
        "text": "Manly, J.\nAfter some reflection upon the facts of this case, we arrive at a different conclusion from that of the Court below.\nIt 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.\nWe attach but little importance to the distance between the sheriff and witness\u2019 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.\nIn 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.\nWithout criticising the words in which the return, \u201c not to be found,\u201d 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.\nIf the sheriff desires to avoid the heavy penalty of the statute 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.\nThe 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.\nWe 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\u00a9 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.\nIn the present state of the sheriff\u2019s return, we think it i& false.\nThe nonsuit must, therefore, be set aside, and a mnwe d'& novo ordered.\nPer Curiam,\nJudgment reversed.",
        "type": "majority",
        "author": "Manly, J. Per Curiam,"
      }
    ],
    "attorneys": [
      "Barber, for the plaintiff.",
      "Fowle, Boyclen and Mitohell, for the defendant."
    ],
    "corrections": "",
    "head_matter": "JOHN H. TOMLINSON v. W. W. LONG.\nThe sheriff\u2019s return on process in his hands, \u201cnot tobe found in my county,\u201d 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.\nWhere a person, to be summoned by a subpoena, was at his home, in the sheriff\u2019s 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.\nAction of debt for a penalty, tried before French, J., at the Spring Term, 1861, of Iredell Superior-Court.\nThe declaration was for the penalty of $500, for a false return to a subpoena placed in defendant\u2019s bands, to be by him executed, as sheriff of Yadkin county.\nA 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 sheriff 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, \u201cNot to be found in my county.\u201d 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 ; \u25a0 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.\nJR. M. Allison testified, that he was in Yadkin county during the first week in January, 1860, and saw the witness, Claywell.\nJB. 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\u2019s counsel, but admitted by the Court.\nThe 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\u2019s post-office is Huntsville, ten miles from Yadkin, and twenty-five miles from Claywell\u2019s.\nOn this state of facts, his Honor intimated that the plaintiff could not recover; in deference to which, he took a nonsuit and appealed.\nBarber, for the plaintiff.\nFowle, Boyclen and Mitohell, for the defendant."
  },
  "file_name": "0469-01",
  "first_page_order": 477,
  "last_page_order": 480
}