
    *Low, qui tam. &c., against Little.
    I'he court may allow amendments in actions on penal statutes, as well as in other suits; but where m an action of debt, qui tam., under the statute for preventing usury, the writ which had been sued out in due time, and sent by mail to the sheriff of the county, had been lost, or miscarried j and the plaintiff, supposing it to have been served and returned, proceeded to file his declaration, &lc., the court refused to allow an alias capias to issue, as grounded on a return of non est inventus to the former writ, or to allow a ca-pias to be issued and hied with a return of non est inventus thereon endorsed, nunc pro tunc.
    
    MOTION for leave to issue an alias capias ad respond, in this cause, upon filing a capias ad resp. therein, returnable as of August term, 1818, with a return oínon est inventus endorsed thereon ; or for leave to file a capias ad resp. thereon, with a return of non est inventus thereon, nunc pro tunc; or for such order as the court may think proper to grant.
    In the vacation, after May term, 1818, a capias ad resp. in favor of the plaintiff, who sues as well for the poor of the town of Springfield, in Otsego county, as for himself, against the .defendant, in an action of debt, under the act for preventing usury, (1 N. R. L. 64.) was issued, directed to the sheriff of Otsego. The plaintiffs attorney being informed by his agent, that the capias ad resp. had been duly served and returned to the clerk’s office at Utica, proceeded to file his declaration, and delivered a copy thereof, with a notice of a rule to plead, to the agent of the defendant’s attorney, who had given a regular notice of appearance. A default was, afterwards, entered for want of a plea; but it being afterwards discovered that the writ was never returned to the clerk’s office in Utica, but was lost or destroyed, the court, on application for that purpose, at the last August term, set aside all the proceedings with costs.
    It appeared that the capias ad resp. had been actually put into the post-office, enclosed and directed to the sheriff of Ot-sego, but had never come to his hands.
    
      King, for the plaintiff.
    
      Brown, for the defendant.
   Spenceb, Ch. J.,

delivered the opinion of the court.

There is no doubt, that the power of the court extends to allow amendments in actions on penal statutes, as well as in ordinary suits. To grant the amendment now asked *would be pushing the doctrine to its utmost limits. The suit is barred, unless the court permit a new writ to be made out and filed as of a distant day, and we incline to think it would be going further to subject the defendant to a penalty, than has yet been done; but there is an insurmountable difficulty, unless the sheriff make a return to the writ, that the defendant was not to be found in his bailiwick. Allowing it to be filed nunc pro tunc would be unavailing.

The sheriff cannot make such a return without a palpable violation of the truth; and if he did make it, contrary to the fact, and thereby ‘the defendant sustained a loss, what is there to protect the sheriff from a liability to an action for the damages occasioned by the false return ?

Fictions of law were invented, and are allowed in furtherance of justice and to prevent an injury, but it would be going an extraordinary and unwarrantable length, to require an officer to make a false return to remedy an accident to one of the parties. The writ never came to the sheriffs hands ; if he had received it, and truly could return that the defendant was not to be found, these facts would justify an amendment, by making out a new writ, and filing it with the sheriff’s return, nunc pro tunc. As the case is, the motion must be denied.

Woodworth, J.,

dissented. That the court has compel cut powers to afford the plaintiff relief is, in my view, unquestionable. We are called upon to direct that a capias be issued, nunc pro tunc, as of May vacation, 1818, returnable as of August term following. It is within the ordinary powers of the court to allow a new writ to be made out and delivered to the sheriff, where the former has been lost or destroyed. (White v. Lovejoy, 3 Johns. Rep. 448.) Whether the writ had actually been received by the sheriff, or been issued and lost, on its passage to the sheriffs office, cannot, I apprehend, make any difference; because the time of taking out the first process, for every material purpose, is to be considered as the actual commencement of the suit. (Carpenter v. Butterfield, 3 Johns. Cas. 145. Fowler v. Sharp, 15 Johns. Rep. 323.) But it is objected, that the court cannot rightfully *direct the sheriff to return non est inventus, on the new writ, issued for the purpose of continuing the proceedings ; and that, should the sheriff obey the order, he would be liable to an action for a false return. In answer to this objection, it must be remembered, that, with regard to legal fictions, it is a general maxim, that in fictione juris subsistit cequitas; wherever it may contribute to the advancement of justice, the fiction is maintained ; but is never allowed to work an injury or prejudice to any party. For the attainment of substantial justice, and to prevent the failure of right, the court frequently apply this maxim ; and the acts done by the officers of the court, (of which the sheriff is one,) in pursuance of their legitimate authority. could never render the officer liable. If the new writ may be considered as having been in the sheriff’s hands, no injury is done to the defendant by such presumption, for I have already shown, that the suit was well commenced from the time of taking out the writ: the sheriff’s return of non est, would be justified by the order of the court, to advance the remedy, and riot fall within the description of acts which subject an officer to damages for a false return. What appears to me conclusive is, that it violates no right of the defendant, but subserves the justice of the case, as respects the plaintiff. In an action for a false return, the plaintiff must prove the existence of his debt or actual damages sustained; but how could Little support either r He never lias been arrested ; his complaint would be that the sheriff had returned that he was not found, and that, in consequence of such return, not that he had sustained damages, for. from the nature of the case, none could arise, but that the court, by exercising its legal discretion in support of right, had permitted the plaintiff to continue a suit commenced in good faith. That such a statement would not sustain an action for a false return against the sheriff, I think undeniable.

If, then, the court are vested with a discretion, the question is, Has not the plaintiff presented a case requiring its interposition ? The plaintiff having declared and entered a default, under a belief that his proceedings were regular, and those proceedings having been set aside in August term last, he is reduced to the necessity of abandoning his action %ltogether, as the statute of limitations had then attached, unless the court, by the exercise of its equitable jurisdiction, gives effect to the writ first sued out. In bringing the question before the court, there has been no laches or unreasonable delay, for the application, on which we are to decide, was made at the last October term. The plaintiff then having availed himself of the earliest day to obtain relief, and the court possessing ample powers to grant it, I do not perceive any well founded objection to exercising them : unless there is something in the nature of the action that forbids our interposition. The action is to recover a penalty for a violation of the statute against usury; and as to the power of the court, it extends to amendments in penal actions as well as others. In Maddock, qui tarn. v. Ham-met and others, (7 Term Rep. 55.) a rule was obtained to show cause why the declaration, which was in action for usury, should not be amended by altering the times of payment of certain notes, in which the usury was charged to consist; it being admitted, that the statute of limitations had run, so that no new action could be commenced. Lord Kenyon, who delivered the opinion of the court, lays down this doctrine, to which I have found no case opposed, that the court will grant leave to amend in penal actions, even after the time limited for bringing a new action, provided the plaintiff has not been guilty of any unnecessary delay in prosecuting his suit, and the amendment prayed for does not introduce any new substantive cause of action. The present case is within the principle of that decision.

I am, therefore, of opinion, that the motion of the plaintiff ought to be granted.

Motion denied, 
      
      
         Brown v. Alpin, 1 Cowen, 203. United States v. Hanford Ely, 19 Johns. Rep. 173. Raymond v. Hinman, 4 Cowen, 41. Miller v. Gregory, Ibid. 504. Chandler v. Brecknell, Ibid. 49. The Commission Co. v. Russ, 8 Cowen, 122. Thomas, Administrator, v. Van Mess, 6 Cowen, 588.
     