
    Jefferson J. Hughes vs. Peter M. Lapice; Peter M. Lapice vs. Jefferson J. Hughes.
    It is too late after a judgment to permit the sheriff to amend his return upon the ■writ of capias ad respondendum.
    
    L. instituted suit against H. in assumpsit; the writ was returned “ executed,” and judgment by default taken against H.; afterwards the court allowed the sheriff to amend his return, so as to show the mode of execution upon H., which was not in accordance with the statute; upon writ of error by H. to the judgment against him, and by L. to the order allowing the sheriff to amend his return, held, that the judgment against H. must stand, and the order allowing the sheriff to amend be reversed.
    In error from the Adams circuit court. Hon. C. 0. Cage, judge.
    The two cases of Jefferson J. Hughes against Peter M. Lapice, and of Peter M. Lapice against Jefferson J. Hughes, upon the same record, were tried together.
    Lapice instituted a joint action under the law of 1837, in the Adams circuit court, against William B. Howell, Jefferson J. Hughes, and Robert J. Walker, as indorsers of a promissory-note, for the sum of six thousand six hundred and sixty-six dollars thirty-three cents, made by Angus McNeille, whom the declaration averred to be a nonresident of the state. Two writs of capias issued upon the filing of the declaration; one to the sheriff of Adams, for Messrs. Howell and'Walker; and the other to the sheriff of Yazoo, for Hughes. Howell and Walker acknowledged service of the writ for them, and the one to Yazoo for Hughes was returned, “ Executed as to J. J. Hughes, May 17th, 1843. Robert L. Adams, Sheriff, by C. M. Henderson, D. S.”
    Howell plead non assumpsit and his discharge under the bankrupt act of congress. Walker plead non assumpsit. At the return term of the writs of capias, which was the April term, 1843, the plaintiff entered a discontinuance of his suit as to Howell and Walker, and Hughes not appearing, a judgment final by default was entered against him for the amount of the note and interest.
    At the November term, 1843, being the succeeding term, Robert L. Adams, the sheriff of Yazoo county, came into court, and moved the court for leave to amend his return on the original writ, issued in the cause as to the service on Jefferson J. Hughes. The motion was sustained by the court, and Adams, by Samuel B. Newman, his specially authorized attorney in fact, by leave of the court, amended his return on the writ, made May 17th, 1843; and made the return in these words: “Executed as to J. J. Hughes, by leaving a copy at the Commercial Bank of Manchester, in the hands of one of the officers of said bank, in the absence of said Hughes, the 17th May, 1843.” The plaintiff below excepted to the action of the court in sustaining the motion, and prosecuted this writ of error therefrom; and the defendant below, by writ of error, seeks also to reverse the judgment by default against him.
    The two causes were consolidated, and heard together in this court by order of the court.
    The following errors were assigned, among others :
    1. That said Hughes never was legally served with either of the writs of summons, issued in said suit in said circuit court of Adams county, for the purpose of making him a party defendant in and to said suit,
    2. That there is error in said proceedings in said circuit court, in a judgment by default rendered in said circuit court, against said Hughes in favor of said Lapice, when said record shows that said Hughes never was a party in said court, or was never legally served with process to appear to, or in said suit of Peter M. Lapice, in said circuit court of Adams county.
    3. That there is error in said proceedings and judgment in said circuit court, in discontinuing said suit as to William B. Howell and Robert J. Walker, and each’of them respectively, and continuing it against said Hughes.
    4. That the discontinuance of said suit as to William B. Howell, operated, in law, a discontinuance of the suit as to said Hughes.
    
      
      Sanders and Price, for Lapice.
    We insist that the original return on the summons authorized the default as to Hughes, and the rendition of the judgment thereon, and that the subsequent amendment attempted to be made was unauthorized, illegal and void —because the affidavit is not made by the sworn officer who made the original return*; because it was done after judgment final, at a subsequent term of the court, when said court had no power over the cause, and because the sheriff could not empower S. B. Newman to make such return for him, the sheriff being a sworn officer could not depute his conscience to another. Besides, it is not pretended that Hughes did not receive the said summons at the bank on the day of its being left there.
    The right of the plaintiff to dismiss as to Howell was unquestioned, independent of its expediency after the plea of bankruptcy— it was competent for the plaintiff either to confess the plea, or to submit to a ?ion pros, for want of replication to plea of discharge under the act of bankruptcy. This dismissal could not prejudice the defendant Hughes, particularly if Howell was discharged under the bankrupt law ; and as Walker was a subsequent indorser to defendant Hughes, there can be no pretext as to any injury to him by reason of the discontinuance as to said Walker. But we rely confidently, that this court has ex-presslysettled the question involved in this cause, in the case of Dorsey v. Peirce, et al. 5 How. 174, to which we refer, together with the authorities there cited ; also to the case of Planters Bank v. John H. Walker, decided last term, in that case, there was an affidavit (Dorsey v. Peirce) of the defendant that there was no service upon him. We are not advised as to the affidavit in this cause, but we rely confidently that this court cannot allow the loose and dangerous practice of allowing a party to amend, at a subsequent term after judgment. It would be a great temptation to malpractices. If the sheriff did make a false return, the plaintiff in error must look to him. We therefore insist that the judgment of the circuit court be affirmed with costs and damages.
    
      
      Quitman and McMnrran, for Hughes.
    There is a single question involved in this case, whether this court will reverse the decision of the court below, in allowing the sheriff to amend his return as to the service of the writ on Hughes, at the term after the return term of the process, and at which return term a judgment by default final had been taken against Hughes?
    The question is important in its consequences in this case, and must depend on the powers of our courts to allow amendments in their own process or proceedings, where the application is made by the officer who has made the error or mistake. And we are met, at the threshold of the discussion, by the opposite counsel, with a decision, or rather an opinion of this court in the case of Dorsey v. Peirce et al. 5 How. R. 173. But, upon examination of that opinion, we do not think it will govern the court in this case. According to our reading of it, that decision went on the ground that the circuit court allowed its own judgment to be amended at a subsequent term, without notice to the opposite party, and on that ground the judgment of the court below was reversed. True, it is stated in the opinion that it would be right to allow the officer to amend his return at any time before judgment. But say the court, “ after the term had passed, the judgment was no longer under the control of the court, and the injured party’s remedy was to this court,” &c.; but the record was so defective that the court would not say what or where the party’s remedy was. Now we did not pretend to amend or charge the judgment against Hughes in the court below, but prosecuted a writ of error to' this court to reverse that judgment in the regular way. But if this opinion is to be construed as the decision of this court, that it is error in all cases, for the court below to allow its officer to amend his return on an original writ, after a judgment in the case, leaving the judgment untouched and standing in the court below, but subject to reversal on writ of error, we respectfully contend that it is not supported by principle or authority.
    In the first place, that portion of the opinion of the court to which we refer, was nothing more than the obiter dictum of the judge who delivered it, no reasoning or authorities are given either by the court or counsel in the argument of the case, (according to the report,) sustaining the opinion, and the question was not necessary to be considered in the decision of the case; and therefore the court will not be bound by such opinion (unless it be correct,) upon this occasion, when the question is directly presented, and alone presented in the case now before the court.
    And in the next place, this opinion of the court, as contended for by the opposite counsel, is, according to our understanding of the law upon the subject, directly at variance with the whole current of decisions, as well as the reason and object of the law in authorizing amendments ; and therefore if this court should conclude, upon a solemn review of its former decision, that it has gone too far in the language used by the judge in delivering that opinion, we know it will readily retrace its steps and correct the error. Of this we can most sincerely say we entertain not a shadow of a doubt. The opinion of this court át a later day, in the case of Williams v. Doe, ex dem Oppelt, 1 S. & M. 559, expresses the correct rule upon this subject.
    We think the doctrine laid down in the books upon this subject, is correctly expressed in the opinion of the then supreme court of this state, in the case of Garner v. Collins, Walker’s R. 518. The court say, “it is the universal practice of courts to permit sheriffs to amend their returns, or make an entire return where it has been neglected, agreeably to the'facts of the case.” In this case the officer, by the permission or authority of the court,- amended or made his return on • an, execution, which must have been long subsequent to the return day, for it was done upon the trial of an action arising upon the proceedings under the execution, and in which a third person was one of the parties, and the supreme court sanction it. How much stronger the case now before the court — the application to amend was made at the term succeeding that to which the writ was returnable, and no person affected in any way by the amendment, but the immediate parties to the suit.
    In the case of Gap v. Caldwell, Hardin’s R. 63, the deputy sheriff, after the term of office of the sheriff had expired, and after a lapse of five years, and pending a writ of error in the court. of appeals of Kentucky, had leave to amend his return in an essential part, and he amended accordingly ; and the court sanction the act.
    Another very strong and striking case will be found in Thatcher etal. v. Miller et al. 11 Mass. R. 413. In the supreme court of Massachusetts, a writ of error was brought to reverse a judgment obtained in an inferior court six years previously. And the principal error was, that it did not appear by the sheriff’s return that the principal defendants had been summoned. And the supreme court suspend the case until the party shall have time to obtain the sheriff’s amendment of his return to show summons, and in the mean time award a certiorari to have the record of the court below certified after the amendment shall be made. The opposing counsel urged the same objections which our opponents urge on this occasion, that it would be dangerous to allow officers to amend from memory only, after so long an interval, and that amendments can be allowed only pendente lite. But the court holds a very different doctrine. The court decided, that the inferior court had full power to grant leave to amend after the lapse of six years; that such motions had often succeeded in the supreme court, and the court could see no objection to it, as the officer amended at his peril, and is liable in damages, &c. We are aware that some of the judges in their opinions, or some of the courts, say that the returns of an officer can be amended as long as there is something to amend by. This either means, that there is the distinct recollection or affidavit, or the like, of the officer, upon which the amendment is made, or it means nothing when applied in practice in such cases. For the sheriff’s acts are matters in pais, and in most cases there is nothing of record for him to amend by. Thus it was in the case just cited.
    So, an officer was permitted to amend his return of an extent by inserting notice to the debtor, &c., after the execution was returned and recorded, and pending an action for the land between the creditor and grantee of the debtor. Buck v. Hardy, 6 Greenl. 162.
    
      And in New York an amendment was permitted, by which a certificate of rule and application of money' under an execution were set aside, the certificate amended, and the money applied to another execution. Ganesvoort v. Gilliland, 1 Cow. 218.
    But we will only refer, generally, to a few more of the many leading authorities, which we feel satisfied warrant the amendment in this case. 1 Cow. 430; 5 N. Hamp. 9; Irvine v. Scobie, 5 Litt. 70; 3 Murph. 128; 3 Monr. 295 ; 3 J. J. Marsh. 500; Commonwealth v. Parker, 2 Pick. 550 ; Rucker v. Harrison, 6 Munf. 181. And in the case before the court, the plaintiff, Lapice, had notice; he appears by counsel and resists the motion to amend, and takes his bill of exceptions, as appears by it.
    Upon these authorities and the whole current of decisions, we think it is clearly settled, that the court may grant an officer leave to amend his returns, in either mesne or final process, after the final disposition of the cause in the court where the application is made for leave to amend. And the only qualification to the exercise of this power by the courts is, that the amendments shall not affect the rights of third persons previously acquired without notice. The statutes of amendments and jeofails in England and this country, extending so liberally in favor of amendments generally, and the tendency of all modern decisions in the same direction, are of themselves a powerful argument in favor of the doctrine for which we contend. And again, it will be seen, by a review of the decisions, that the exercise of this power of allowing amendments, is left very much and very generally to the sound discretion of the court, exercising the power in regard to her own process and the acts of her officers; and the supreme tribunal, on appeal or writ of error, will not interfere or reverse the order or judgment of the court in the exercise of such discretion in any case; or, if in any case, not on the ground of want of power in the court, but where the facts did not warrant the amendment, which is not pretended in this case.
    
      We conclude, then, that in every aspect of this case, this court will not disturb the judgment of the court below.
    
    
      
       The argument of Messrs. Quitman and McMurran, in the case-of Hughes v. Lapice, as to the effect of the discontinuance of the action against Walker and Howell, is not inserted, because the point is not noticed in the opinion of the court. B.
    
   PER Curiam.

This action was originally brought against three indorsers of a promissory note. A discontinuance was taken against two, and Hughes made default. The process was returned “executed” generally, and at a term subsequent to the judgment, the sheriff moved to amend his return, on his affidavit that he executed the process as to Hughes, by leaving a copy at the Commercial Bank of Manchester, with some person in the bank; and Hughes made affidavit that the bank was not his place of residence, and thereupon the court allowed the return to be amended according to the facts, which made it a defective return. To this decision, Lapice by his counsel took exceptions, and brought his writ of error. Hughes also prosecutes his writ of error to reverse the judgment taken on default, in consequence of the defective return. Thus it will be seen, that both cases must turn upon the right of the sheriff to amend his return.

The general right in the sheriff to amend his return, by the permission of the court, is not questioned ; but it is contended, that an application comes too late after the return term, and the case of Dorsey v. Peirce, 5 How. 173, is relied on in support of this position. The decision is to that effect, and it does .not stand alone. The same question was directly raised, and fully considered in the case of The Planters Bank v. Walker, 3 S. & M. 409, and we there held that an application of this kind comes too late after judgment. In such cases, the party must seek redress by his action for a false return. This application was made after judgment, under which'rights had been acquired, and we must adhere to the rule by holding that the application was not made in time. The consequence is, that the judgment against Hughes will be affirmed, and the judgment allowing the amendment reversed.  