
    Lewis M. Garrett vs. Samuel Hamblin et al.
    In a motion against a sheriff, for the fine allowed by statute, for a false return upon an attachment, in not returning a levy upon six bales of ginned cotton, it was proved by one of the witnesses to the levy of the attachment, that the deputy sheriff, while executing it, called the witnesses’ attention to some ginned cotton in the pick-room of the defendant in the attachment, and asked its amount, and on receiving a reply, made a note of it upon paper in his hand; and that this cotton was subsequently removed by another deputy of the sheriff, and sold as perishable property; it was held, that the proof of the levy was sufficient; and, as the sheriff had made no return of it, of the false return.
    In a motion against a sheriff, for the fine allowed by statute, for a false return upon an attachment, in not returning a levy upon six bales of ginned cotton, the: sheriff, after proof of the levy by the plaintiff, and that the cotton had been sold, together with other property levied on at the same time as perishable property, and that there had been no return of it, the sheriff, by way of defence, introduced receipts of the plaintiff in the attachment íot sums of money received from the sheriff, “ in part of the proceeds of the sales of the perishable property which had been levied onit was held, that if it had been made affirmatively to appear by the sheriff that these receipts were for the proceeds of sale of the ginned cotton in question, it would, perhaps, have availed the sheriffin his defence; but as it was not made so to appear, they constituted no bar to the motion.
    In error from ■ the circuit court of Madison county; Hon. Morgan L. Fitch, judge.
    Lewis M. Garrett entered a motion in the circuit court of Madison county against Samuel Hamblin, the sheriff, and others, his sureties, for the fine of $500, imposed by statute for a false return, made by the sheriff, as is alleged, on a writ of attach.ment sued out by the plaintiff, Garrett, for $21,200, against one William Tinnin of Madison county, returnable to the May term, 1841, of the circuit court of said county. \
    
      The return on the writ is: “ Levied the within attachment the 5th of November, 1840, on the following property of the defendant William Tinnin, to wit, twelve negroes, named as follows : Austin, Sam, Charles, Caty, Peter, Jack, Winny, Rachael, Jonny, Fanny, Tom, and Rison, also on seven bales of cotton packed, and 40,000 pounds of seed cotton, more or less ; 1500 bushels of corn, more or less, four mules and three horses. Samuel Hamblin, sheriff, by Charles Hickerson, deputy.”
    ■ Which return, plaintiff avers is false in this, “ that it does not and did not show that said sheriff had levied on six bales of ginned cotton in the pick-room of said ,Tinnin’s gin, which he had in fact levied on.”
    The plaintiff introduced P. M. Garrett, who stated that after Hickerson, the deputy, had levied on the other property described in the return, he went to the pick-room of Tinnin’s gin, opened the door, and called the attention of witness and another to some ginned cotton in said room, which was not pressed, asked witness how many bales of cotton were in the room, who was of opinion there were six. The deputy then wrote down something on a piece of paper, which he held in his hand, which witness supposed was. the quantity of cotton. Witness further stated, that Hickerson, or E. B. Curtis, another deputy of the sheriff, afterwards moved said picked cotton out of the pick-room into a pen made of rails, and sold it as perishable property at public sale, and it was bought by one John D. Scott. This sale took place some time during the winter of 1840-1841.
    The plaintiff also read in evidence extracts from a handbill, published in 1841 over his own signature, and that of Hamblin and Hickerson, in reply to one previously published by Tinnin, in which Tinnin had charged the sheriff with selling said ginned cotton from the pick-room, without having levied on, or advertised it for sale, as follows: “He (Tinnin) says further, that Mr. Hamblin, by deputy, sold about six bales of ginned cotton, which had never been .attached or advertised.”
    “ The law requires attached property to be levied in the presence of one creditable witness. This requisition Mr. Hickerson complied with. He says, under oath, that he did levy on it, and the witness corroborates his statement.”
    
      “ He (meaning said Tinnin) says, that the cotton and corn seized by the sheriff was worth, in cash, at least $2000; inde- ' pendent of six bales, which was sold and had not been attached ; but such was the distribution of the property after it was seized, that an actual account sale was made, and returned for a sum little upwards of $1000. I really feel some difficulty in knowing how to reply to this falsehood, &c. The six bales of cotton were sold by the deputy, and bought by one John D. Scott, of Canton; but they miraculously disappeared between two days, before the deputy and Mr. Scott could get them away.”
    The defendant’s counsel then read in evidence to the jury, the following receipts, given by the plaintiff for a part of the proceeds of the sale of the perishable property, which had been levied on : “ $500. Received, Canton, 10th of January, 1841, of Samuel Hamblin, sheriff, five hundred dollars for and on account of the sale of William Tinnin’s property, in a certain case of Lewis M. Garrett against William Tinnin on attachment. — Lewis M. Garrett.”
    
      "L. M. Garrett v. William Tinnin.
    
    Attachment returnable to the May term, 1841, of the circuit court of Madison county, Mississippi.
    Received of Samuel Hamblin, sheriff, three hundred dollars, on the above stated case, this 15th of February, 1841.
    Lewis M. Garrett.”
    “Received of Samuel Hamblin fifty dollars, in my case of Attachment against W. Tinnin, in circuit court- of Madison county, Miss., February 16, 1841. L. M. Garrett.”
    This being all the evidence, Garrett asked the court to instruct the jury, 1. To constitute a levy of personal property, it is not necessary that the levy be entered on the writ of attachment, in virtue of which it is made. It is sufficient, if the officer had the writ in his hands, and indicated by his act that he had taken possession or control of the property under the writ.
    2. If the jury believe, &c., that the levy was made on the six bales of ginned cotton in the pick'room of Tinnin’s gin, and that the sheriff, in his return on the attachment, failed to state that he had levied on these six bales, then the law was for the plaintiff.
    3. In order to estop the plaintiff, Garrett, and prevent his recovering in this motion, on the ground that he received a part or the whole of the money arising from the sale of the perishable property, the defendant must prove that Garrett was fully advised of all the facts in regard to the sale of the perishable property.
    4. If the jury believe, &c., that the return on the writ of attachment is false in fact, the intention of the sheriff is immaterial, and the law is for the plaintiff.
    5. If the sheriff specified, in his return upon the attachment, a levy on certain property, and he did in fact levy on other property than that specified in his return, his return is false.
    6. That a receipt by Garrett of a part of the money arising from the sale of the perishable property, in the months of January and February, 1841, was no recognition and adoption by him of a return made at the May term, 1841.
    7. The date of the levy, to wit, November 5, 1840, is not the necessary date of the return, it being the duty of the sheriff to keep the attachment till the May term, to levy on other property if it could be found.
    The court gave the first., but refused the other six instructions.
    The defendant asked these instructions.
    1. If the jury believe, &c., notwithstanding the levy on the six bales, and the sheriff’s omission to name them in his return, that he did, by his deputy, preserve and sell the property under the attachment, and pay the proceeds of the sale to the plaintiff, or his order, they ought to find for the defendant.
    2. That to constitute a false return within the meaning of the law, it is not sufficient that there be a mere omission to state each article of property on which an attachment or other process is levied.
    3. If the evidence does not tend to show that the cotton was legally attached they ought to find for the defendant.
    
      4. If the jury believe that L. M. Garrett received the money, or any part of it, arising from the sale of the property mentioned in the levy, he thereby waived-his remedy for a false return, and the law is for the defendant.
    The court gave these instructions: the plaintiff excepted; and, upon a verdict being rendered for the defendants, sued out this writ of error.'
    
      L. M. Garrett, in proper person, and A. H. Handy, for plaintiff in error,
    after stating the facts, insisted that,
    1. The first instruction asked for by the defendants below, was calculated to mislead the jury; there being no evidence tending in the slightest degree to show that the sheriff had preserved the proceeds of the six bales, and paid the same to the plaintiff.
    2. The last instruction given for the defendants was manifestly wrong. There was no proof before the jury that the plaintiff knew how much, or what portions of the perishable property had been sold at the time he gave the receipts; yet such proof was indispensable in order to estop the plaintiff, if he could be estopped at all. The return was made several months after the receipts were given, and the perishable property was worth some $2,000, while the receipts were for only $850. Now, if the plaintiff had been fully informed of all the facts in regard to the sale, how much the property sold for, and what portions of it, and had, after the false return was made, and after he was aware of it, received the money, there would have been more show of reason in the position taken in this last instruction, viz., that he was estopped from questioning the truth, of the return. It has been held that the plaintiff does not waive his right of action for a false return, by accepting money under it. Holmes v. Clifton, 10 Adolph. & Ellis, 65 ; Sewell on Sheriffs, Law Lib. vol. 36, p. 327, note c.
    The literary fund will be entitled to one half of the fine, whenever it shall be established that a false return was made; and it is not pretended that the state is estopped from claiming it. No other'mode is pointed out for the recovery of the half which belongs to the literary fund, except that by motion of the plaintiff in the execution. This is a remedy very different from an action on the case for damages consequent upon the false return.
    3. If the instructions of the court were correct in this case, and the plaintiff cannot sustain the motion, what will be the consequence? Why, a designing sheriff may levy an attachment upon a large amount of personal property of a perishable nature; before he makes his return, get the plaintiff to receive a small part of the proceeds, concealing from him all the facts in regard to his sale; afterwards make a false return on the attachment, and be perfectly secure against either an action on the case for damages, or a motion for a false return. It is impossible to conceive of a case of false return more fully made out than the one before the court; and the court below should therefore have given the other instructions asked by plaintiff.
    Clifton, for defendants in error.
    This motion against the sheriff is not, for not levying on the ginned cotton in the pick-room, nor to recover the value of it; but is for omitting to indorse the levy upon it on the suit of attachment.
    The sheriff has proceeded in all respects, and his liabilities have attached in all respects, as if the levy on this cotton had been indorsed on the attachment. Jointly with the plaintiff, he was involved in a public controversy with Tinnin, for having sold this identical cotton. There could have been no possible motive, then, for omitting to mark the levy on the attachment; and if there were no motive for it, a fair construction of his conduct gives rise necessarily to the inference that it was omitted inadvertently, and without design; and if so omitted, it cannot be “ a false return,” within the meaning of the statute, which imposes a penalty for “every such offence;” and there could be no offence committed against one by the sheriff, in seizing the property of the defendant, selling it as perishable, and paying over the proceeds to the plaintiff before the return day of the writ, at least none it would seem of which the plaintiff ought to complain.
    
      The 56 Geo. 3, 63, for regulating the penitentiary at Mill-bank, declares that any officer of that establishment “ who shall make any false entry, or fraudulent omission in his accounts, shall be liable to be punished,” &c. And this conforms to the common sense of mankind, which distinguishes between an omission which is the result of accident or inadvertence, and one which is the result of preconceived, fraudulent design.
    If this had been an action against the sheriff for false return of “nulla bona,” and, after the plaintiff had made out his case, the sheriff had proved that, although by mistake he had returned “no property,” he had seized the goods of the defendant and sold them, and paid to the plaintiff the proceeds, the plaintiff would have failed; because, although the sheriff might have been guilty of a literal violation of his duty, yet the substantial objects sought by the writ would have been accomplished, and there would have been no injury for the plaintiff to complain of. There would have been no motive to do wrong, and no wrong done. And the motive and the consequence must necessarily determine the quality of every action, so far that where both are good, there can be no evil.
    The conduct of the sheriff, attended by these circumstances, cannot subject him to the penalty imposed by the statute, in the absence of every motive to commit a wrong, and when the act complained of was the result of accidental omission, and inflicted no injury upon the plaintiff.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This was a proceeding by motion against Hamblin, sheriff of Madison county, and the sureties upon his official bond, to enforce the payment of the fine affixed by statute as a penalty upon any sheriff making a false return upon any execution, &c. H. & H. 297, sec. 27. The alleged false return consisted in the sheriff’s not returning as levied upon by him by virtue of a certain ataehment, a quantity of ginned cotton, estimated to amount to six bales. The proof as to the levy upon this cotton consisted of the evidence of one of the witnesses, in whose presence the attachment was executed, who testified that the deputy sheriff, while executing the attachment, called his attention to some ginned cotton in the pick-room of the gin of the defendant in the attachment, inquired its probable quantity, received a reply, and then made a note upon paper in his hand, and that this cotton was afterwards removed by another deputy of said sheriff, and sold as perishable property; and further, it consisted of the contents of a certain handbill, to which the sheriff was a subscriber, in which there was an acknowledgment that the cotton was levied upon under the attachment. On the other hand, receipts of the plaintiff in attachment for money received on account of sales of the property levied on by virtue of the attachment, were introduced in evidence. The bill of exceptions sets out that' these receipts were given for a part of the proceeds of the sales of the perishable property which had been levied on.”

There are but two points in this case. First, whether the fact of a false return has been established by the plaintiff; and secondly, whether the plaintiff has by any act precluded himself from the benefit of the proceeding by motion. Upon the first point there can be no doubt. The evidence of the witness at the execution of the attachment, shows, and it is corroborated by the admission of the sheriff in the handbill, that the deputy sheriff executed the attachment upon the six bales of ginned cotton. No such return is made upon the writ of attachment. Although it be true that the plaintiff in the attachment received from time to time payments on account of sales of perishable property levied upon by virtue of the attachment, it is not shown that these payments were proceeds of sales of the ginned cotton in question. If this had been established, it might perhaps have availed the sheriff in defence. But the return shows other perishable property, from the sale of which those payments might have been made; and it is not clear, from the admission of the sheriff in the handbill, that any proceeds were obtained from the sale of the ginned cotton, but rather the contrary. Besides, the receipt of the plaintiff in attachment upon the general account of the amount levied for a part thereof, does not preclude him from pursuing the sheriff for a false return in the execution of that attachment. It is very probable that if it were shown that he had received the proceeds of the sales of the property claimed to have been levied upon, but which were not returned, the case would be of a different consideration. It follows, hence, that the instructions given by the circuit court on the behalf of the sheriff, were not warranted by the evidence; and the extent of the propriety of those claimed by the plaintiff in the attachment, can readily be judged of from the foregoing opinion.

The judgment must be reversed, and the cause remanded for further proceedings.  