#### JAMES R. LEMIT *vs.*ARTHUR S. MOORING.

To render a sheriff liable to an amercement for making a false return, it must appear that the return is false in point of fact, and not falsa merely as importing, from facts truly stated, a wrong legal conclusion.

The cases of *Lemit*v. *Freeman, 7*Ire. 317, and *Hauser*v. *Hampton, 7*Ire. 333, cited and approved.

Appeal from the Superior Court of Law of Washington County, at the Spring Term, 1848, his Honor Judge Settle presiding.

This is an action of debt to recover $500, as a penalty incurred by the defendant for making a false return of a writ of *capias ad respondendum,*returnable to the Superior Court of Washington, in which Joseph Long was plaintiff, and Joshua Long defendant, which was delivered to the defendant, then Sheriff of Martin County. Plea, *nil*debet.

The return was in these words: “ This writ came to hand on the 22nd of Febuary, 1847, during the term of Martin Superior Court of Law, and from that day until Friday, inclusive, of that Court, I and my deputies were engaged, so that I could not serve said writ on the defendant, who lives fifteen miles from the Court House at Williamston, my place of residence, and during all which time I did not see the defendant.”

On the part of the plaintiff evidence was given, that Martin was a large and populous County, and that the defendant in the writ, Joshua Long, lived about 15 miles from the Court House and in a part of the County in which it would be difficult for the Sheriff to get a deputy, but that among the number of persons attending Martin Court that week, it was highly probable that he might *313have procured some one to execute the writ as a deputy. It was agreed, that Washington Superior Court began on Monday, the Sth of March, 1847.

The Court instructed the jury, that the defendant was bound to procure and have at all times, deputies in number sufficient, with himself, to meet the exigencies of his office; and if they believed that the defendant could have executed the writ himself, or could have procured any one to execute it, by the use of reasonable and proper diligence, it was his duty to do so, and failing to do so, the return would be false, and he would be liable in this action, notwithstanding the defendant and the deputies which he had, were engaged in attending the Superior Court of Martin, from the time the writ came to his hands until it was too late to execute it.

There was a verdict for the plaintiff, and the defendant moved to set it aside, and for a *venire de*novo, for error in the instructions to the jury. But the Court refused the motion and gave judgment, and the defendant appealed.

*Heath,*for the plaintiff.

*Biggs, for*the defendant.

Ruffin, C. J.

The Act of Assembly imposes two duties on sheriffs in respect to process coming to their hands. The one is, that they shall make *due*return of it under penalty, for not making such return, of being amerced $>100 by the Court, on motion, for the benefit of the person grieved. The other is, that they shall make *true*return; under a penalty for every *false*return of *$5GO, to be*recovered by action of debt, one moiety to the party grieved, and the other to him who will sue for the penalty. *Rev. St.*c. 109, s. IS. Upon the construction of the Act, the opinion of the Court differs from that entertained by his Honor, who presided at the trial. The return may not be a due return perhaps; and thus it may fall within *314the first branch of the statute, for any thing to be said to the contrary in this case. But we think very clearly, that it is not such a false return as is meant in the statute, so as to make the sherifF incur the heavy penalty of $500. To have that effect it must be false in point of fact, and not false merely as importing, from facts truly stated, a wrong legal conclusion. The Act was designed to punish sheriffs for putting on process deceptive returns ; such as mislead the parties in point of fact and baffle them in the execution of their process. It may be true in this case, that the sheriff would be liable to the action of the plaintiff in the writ for not executing it, or for an amercement for not making a proper and legal return. But it does not appear that any part of the return, as made, is untrue as to the matter of fact. No evidence was given of the number of the defendant’s deputies, or that he or any one of his deputies eould, without a dereliction of duties previously incurred to the Court, have gone to serve this writ during term time. Without such evidence, there is a presumption in favour of the return, as to the truth of the facts stated in it; and therefore it is to be assumed, that *the writ came to*hand, as stated, that the term of the Court began and continued, and the residence of the defendant in that suit was, and the engagements of this defendant and his deputies were, also as stated. If so, the return, though it may be legally insufficient, is substantially true in fact, as what follows — “ so that I could not serve this writ on the defendant” — is barely a conclusion or inference from the preceding facts, and purports only to be so, and could not deceive the plaintiff as to the acts of the sheriff or with respect to his recourse on him. *The counsel*for the plaintiff supposed the case to fall within those of *Lemit*v. *Freeman,*7 Ired. 317, and *Hauser*v. *Hampton,*7 Ired. 333. But they are not at all alike. The returns in both of those cases were directly false in point of fact. In the latter case there was a return of *non est inventus,*when *315the sheriff or his deputy, which is all one, had actually been in conversation with the defendant in his county. And in the former, without returning the day of receiving the writ, and concluding from it, that “ so the writ was not in time to be served,” the sheriff took upon himself to state the fact directly and positively, *u*too late to execute,” when in truth the writ was in his hands seventeen days, as proved on the trial. Both returns were therefore proved to be false, and the plaintiff was entitled to recover. But here it is quite otherwise *, for, as far as shown on the trial, not a statement in the return, purporting to be a statement of a fact, was in the least untrue.

Per Curiam. Judgment reversed and *venire de nove*