
    Howard, et als. vs. Union Bank.
    1. A sheriff cannot amend his return so as to avoid a motion pending against him; neither can his deputy, so as to discharge his principal.
    2. An execution was in the name of the President and'Directors of the Bank of Tennessee, and a motion for the non-return of said execution was made in the name of the President, Directors and Company of the Union Bank of the State of Tennessee. This is an immaterial variance.
    3. Bond and security for cost in amotion, is not essential to the jurisdiction of the court. If a motion to dismiss on that ground be not mado in the Circuit Court, the objection is waived.
    This motion was made in the Circuit Court of Sevier county, on the 8th day of August, 1846, by the President, Directors and Company of theUnionBank ofTennessee against Howard, sheriff of Sevier county, and his securities. It appeared, that on the 6th day of April, 1846, a fi.fa. was placed in the hands of the sheriff of Sevier county, by the Clerk of the Circuit Court of Sevier, in favor of the President and Directors of the Bank of Tennessee. The following return was made:
    “Search made at the house of Lewis Reneau, and there was no property of the defendant found in my county to make the money, this 3d day of August, 1846.
    P. CATE, Deputy Sheriff.”
    After the making of the motion on the 8th day of August, the sheriff, Howard, came in and made a motion, that his deputy, Perry Cate, be allowed to amend his return, so as to show, “that said Perry Cate, a deputy sheriff of Sevier county, who had held said fi.fa. in hands from the 6th day of April, 1846, until the 3d day of August,- 1846, the day of its return had made search, and could find no goods or chatties, lands or tenements of the defendants in said execution, in said county of Sevier,” and he read in support of said motion the affidavit of Cate, stating these facts.
    This motion was overruled, and judgment rendered for plaintiffs, from which defendants appealed.
    
      Wdclcer, for plaintiffs in error.
    
      Lyon and Maynard, for the Bank.
   GREEN, J-

delivered the opinion of the court. .

The Union Bank moved against the plaintiff in error, sheriff of Sevier county, for an insufficient return on an execution that had come into the hands of the deputy sheriff. After the motion was made, the sheriff moved the court to permit the deputy to amendhis return, which application was refused, and a judgment was rendered against him and his securities, from which judgment this appeal in error is prosecuted.

In the case of Mullins vs. Johnson & Rayburn, (3 Hump. R. 396,) This court held, that an officer cannot be permitted to amend his return, so as to avoid a motion pending against him for not having made a return.

1. It would be, in our opinion, too strong a temptation to the officer, to so amend his return, as to shield him from the pending action, though it might be at the expense of truth. And we can perceive no difference in the application of this reasoning, for the deputy to amend, and thereby protect his principal, and as a necessary consequence, protect himself from liability to his principal.

2. The ex.ecution was in the name of the “President and Directors of the Bank of Tennessee,” and the motion is, on behalf of the “President, Directors and Company of the Union Bank of the State of Tennessee.” This is an immaterial variance.

3. No security was given for’ costs of this proceeding. The execution of a bond with security for cost, is not essential to the jurisdiction of the court. The defendant should have moved in the Circuit Court to dismiss the suit for want of the security-required by law, not having done so, the objection was waived.

Let the judgment be affirmed.  