In his petition for a rehearing counsel for respondent insists that, in reversing the judgment in this case, we have at the same time reversed without noticing it a former decision of this court upon which he relied and had a right to rely in advising his client *218 and presenting his case to the trial court; and this supposed grievance is so strongly urged that we feel called upon to point out the fact that it has no existence.

The case to which counsel refers is entitled Egery v. Buchanan and is reported in 5 Cal. 54 . It was cited in support of the proposition that in an action by an execution debtor against a sheriff to recover the statutory penalty and damages for selling land without notice, the sheriff’s return on the execution to the effect that he has given notice is conclusive evidence in his favor. It will be seen, however, upon the most cursory examination of the case, that it is not authority for any such proposition.

That was not, like this, an action on the case against the sheriff for damages, but was a summary proceeding by motion in an action between other parties to enforce the penalties prescribed by section 9 of the Act of April 29, 1851—Stats. 1851, p. 191—and all the court was called upon to decide, and all it did decide, was that in that summary proceeding the return of the sheriff (a return of nulla bona) was- conclusive in his favor. Or, in other words, that the court could not try, upon affidavits, in a collateral proceeding in an action between other parties, issues which were the proper subject of an action against the sheriff in which he could demand, if he chose, a trial by jury. If this is not made plain by the opinion itself, it certainly is made plain by reference to the authorities cited by counsel and referred to by the text-writers named in the opinion of the court.

These decisions—and no doubt many more could be found to the same effect—certainly do establish the doctrine that as against a collateral attack by motion in the action in which the execution issues the return of the sheriff of nulla bona is conclusive in his favor; and this is'the common law rule which was held to have been unaltered and unaffected by the statute above referred to. But the same decisions which enforce this rule expressly concede that the party injured by the neglect or misconduct of the sheriff has his remedy by action, and *219 so it was expressly said in Egery v. Buchanan, 5 Cal. 54 , that the remedy of the plaintiffs was by action for a false return. The language of the opinion immediately following this statement to the effect that a sheriff's return is not traversable, etc., was used with reference to the proceeding then under review, and not with reference to an action against the sheriff. If the court had meant to say that in an action for a false return the return itself is conclusive in favor of the sheriff, the remark would not only have been obiter, it would have been absurd. But it seems to us perfectly apparent that the court neither meant to say nor did say anything of the kind. On the contrary, it stated in plain terms that the remedy of plaintiffs was by an action for a false return.

What then is an action for a false return? “ False return” was simply the specific name (probably derived from the forms of the original writ) for one of the numerous class of actions on the case. It was not an action in rem for the purpose of canceling or setting aside the return in order to pave the way for another action for damages, but was itself an action for damages founded upon the official misconduct of the sheriff; and therefore all that the court meant in saying that the remedy of the plaintiffs was by an action for a false return was that they must proceed by action, not necessarily in the form of the common law action, but, as our system of pleading and practice enjoins, by filing a complaint alleging the facts material to the right of recovery. And such is precisely the course which this plaintiff has pursued. He has proceeded regularly by action, and his complaint, as it appears to us, contains every allegation necessary to show his right to recover the statutory damages for selling land without the legal notice. (Code Civ. Proc., secs. 692, 693.) There was no demurrer to his complaint, but an answer taking issue upon the fact of notice, and this issue was tried in the superior court as if it was properly raised, all plaintiff's evidence tending to prove want of notice being received without objection. If the complaint is in any respect *220 deficient in substance, the objection should at least have been taken at the trial before it was too late to amend, and not having been so taken it ought not now to prevent the granting of a new trial if the issues actually tried have been found contrary to the evidence.

But we do not see that the complaint is in any respect deficient. The only objection suggested by the argument of counsel is that it should, like the declaration in the common law action for a false return of nulla bona, have alleged the return and its falsity. But the reasons for putting in those allegations under the common law practice have no existence under our system, which provides for but one form of action, in which no facts need be alleged except those which must be proved. It was not the return to the writ of fieri facias by which the execution creditor was damaged, but the failure to make the money which the sheriff might have made by properly executing it, and the allegations of the return and its falsity were only necessary to show that the plaintiff was proceeding in proper form, for'there was one form of procedure by motion, rule, or action where the writ had not been returned, and another form of procedure when it had been returned. And when the return had been made and was true, the proper procedure was by motion, or by action of debt founded on the return, or in assumpsit for money had and received, so that it was necessary to allege the falsity of the return when such was the case, in order to show that plaintiff had commenced the proper action and to avoid a variance. (See Tidd’s Practice and Chitty’s Pleadings, passim.)

But in this case there was no such necessity. The plaintiff was damaged, and his cause of action under the statute complete, as soon as the defendant delivered a certificate of purchase to the purchaser at the execution sale, if in fact the sale was without notice. For the title of the purchaser does not depend on the sheriff’s return, and in the absence of such return the debtor is obliged either to redeem his land or run the risk of losing it by proof aliunde that the sale was valid.

*221 If these views are well founded counsel will see that a more careful study of his authorities would have made it plain to him, as it seems to us, that we have not on this point made a wide or any “ departure from what has been deemed settled rules of law.”

As to the other proposition upon which counsel bases his petition for a rehearing, viz., that we have gone contrary to the settled practice of the court in reversing a finding of fact as to which the evidence is conflicting we have only to remark that the rule he invokes is not that a finding will be sustained whenever there is any evidence, however slight, tending to prove the fact found, but is more correctly stated as follows: A finding, though against the apparent weight of evidence, will not be disturbed if there is a substantial conflict of evidence as to the fact found. In this case we think the conflict is not substantial.

Counsel seem to think that because a sheriff’s return is in some cases conclusive, it is therefore to be regarded as of great weight in the cases in which it is merely prima facie sufficient to establish the facts stated. But the considerations of policy and convenience upon which the rule is founded, that as between the parties to an action and their privies the return of a sheriff is conclusive, have no application in a suit against him for neglect of official duty. In such cases his return, although prima facie evidence in his favor, is essentially weak evidence, and when in the face of positive testimony that subsequent to the making of the return he has distinctly admitted its falsity, he offers neither denial nor explanation of such admissions, the effect of his return as evidence in his favor, is completely overcome, and is not sufficient to sustain a finding that the return is true.

Rehearing denied.

De Haven, J., Garoutte, J., McFarland, J., Paterson, J., and Harrison, J., concurred.