McMURPHEY v. CAMPBELL, 2 N.C. 181 (1795) McMURPHEY v. CAMPBELL.Superior Court of North Carolina (April Term, 1795.) Process returned by the deputy sheriff should be in the name of the high sheriff, and not in the name of the deputy for the high sheriff; but a return in the latter mode was supported. CAMPBELL had been summoned on the part of McMurphey to attend this Court as a witness in his behalf, and when the trial came on, failing to appear, was called upon his subpoena, and his default recorded; whereupon a sci.fa. issued against him, and now his defense was that he never was summoned by any proper officer. The subpoena, when produced, appeared to have been served by the deputy sheriff, and returned by him in his own name for the high sheriff, and not in the name of the high sheriff, as it should have been.
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McMURPHEYv. CAMPBELL,2 N.C. 181(1795)
Superior Court of North Carolina
Process returned by the deputy sheriff should be in the name of the high sheriff, and not in the name of the deputy for the high sheriff; but a return in the latter mode was supported.
CAMPBELL had been summoned on the part of McMurphey to attend this Court as a witness in his behalf, and when the trial came on, failing to appear, was called upon hissubpoena, and his default recorded; whereupon asci.fa. issued against him, and now his defense was that he never was summoned by any proper officer. Thesubpoena, when produced, appeared to have been served by the deputy sheriff, and returned by him in his own name for the high sheriff, and not in the name of the high sheriff, as it should have been. Whereupon Mr. Spillar objected that the deputy sheriff was not a sworn officer, which was conceded in the present case, and that therefore, as the return was made by him, and not in the name of the principal, it was not a good service.
PER CURIAM.
The return here is for the principal by the deputy, which is nearly the same thing as if the return had been "executed" and the name of the principal subscribed, and the words "by A. B., Deputy Sheriff," added, which is the usual course. This return is indeed a little irregular, but it cannot now be amended, the principal being dead and the deputy removed out of the State. Such (182) returns, however, though irregular, have prevailed very generally through the country for a long time, and the disallowing them would be productive of terrible inconvenience.Communis error facit jusis a maxim we do not approve of, but it must sometimes be submitted to for the sake of avoiding confusion. The course of practice frequently makes the law, and must be given way to where a sudden disallowance of it would be followed by a great public evil. In strictness, however, there is no doubt but that all returns should be made in the name of the high sheriff. Salk., 96; Bac. Abr., 437; 1777, ch. 8, sec. 5.
So the objection was overruled, and the plaintiff had judgment.
SeeS. v. Johnston, post, 293;Holding v. Holding,4 N.C. 324.Cited: Dobson v. Murphy,18 N.C. 590;Washington v. Vinson,49 N.C. 381;Brickhouse v. Sutton,99 N.C. 109.Page 132