
    Elijah Williams and Another, Plaintiffs in Equity, versus James Brackett.
    A sheriff cannot be admitted, in a suit between other parties, to change the description of land in his return of an attachment, made by him in a former action, so as to make the description apply to other lands of the debtor.
    The plaintiffs, by their bill in equity, claim a right to redeem and have possession, &c., of two third parts of a tract of land in Quincy, in this county, bounded, &c., and say that the premises in question were mortgaged by Ebenezer Vezey to James Brackett, the defendant, on the 21st of March, 1804, to secure the payment of 1500 dollars and interest; and again on the 13th of January, 1806, to secure the payment of 486 dollars 69 cents, and interest; in both which mortgages the premises are expressed to be “ the same land, two thirds of which were devised to the said Ebenezer in remainder by his father, Ebenezer Vezey, deceased.” — And the plaintiffs aver an assignment to them by the said James Brackett, on the 21st of October, 1806, of the said second mortgage, in consideration *of the said principal sum of 486 dollars 69 cents paid therefor by the plaintiffs, and a release to them by the said Ebenezer Vezey, the mortgagor, of all his right of redemption, for a valuable consideration paid him by the plaintiffs on the 19th of March, 1807 ; and that on the 3d of March 1810, they tendered to the said Brackett, the defendant, 2000 dollars for the payment and discharge of the said first mortgage, being within three years after he had possession of the said mortgaged premises.
    The defendant, in his answer, sets forth an attachment of the said Vezey's equity of redemption, made on the 16th of April, 1805, by force of a writ of attachment brought and prosecuted at the suit of Stephen Brigham, and others, and an execution issued on a judgment recovered by them against the said Vezey, the mortgagor ; and avers the said execution to have been levied on his said equity of redemption in the mortgaged premises on the 28th of January, 1806 ; which, after the requisites of the law in that particular had been pursued, was sold to and purchased by the defendant, at a public auction, on the 31st of March, 1806, for the sum of 327 dollars, and was conveyed to him by Joseph N. Arnold, a deputy sheriff, &c., on the 2d of April, in the same year. And the defendant avers that on the same day he entered into possession of the mortgaged premises, with the consent of the mortgagor; and denies any right of redemption in the plaintiffs, and also the sufficiency of their tender, because not extending to the sum paid for the equity of redemption purchased at the sheriff’s sale ; if at the time of the said tender the plaintiffs had any right of redeeming, &c.
    - The two mortgages being admitted by the pleadings, the assignment by the defendant to the plaintiffs of the second mortgage was proved at the hearing had before Sewall, J., at the last March term in this county ; and the defendant admitted the tender, and the suf ciency of it to discharge the first mortgage, with all disbursements, &c. — The defendant then gave in evidence the return of the said Joseph N. Arnold upon the said writ of attachment, *intln-se words: “ Norfolk, ss. 16th April, 1805. I attached all the right, title, and interest, which the within-named Ebenezer Vezey has in and to the estate of Sarah Vezey, late of Quincy, deceased, and left him a summons,” &c., and moved to have the said Arnold sworn and examined, suggesting that he could explain the said return, and prove that he in fact attached the right of the said Vezey in the mortgaged premises.
    This motion was overruled by the judge; the defendant admitting that the land mortgaged came to the said Ebenezer Vezey from his father, and that the said mortgagor had, at the time of said attachment, other real estate situate in Quincy, which came to him from Sarah Vezey, deceased.
    Upon this evidence the judge was of opinion that the plaintiffs were entitled to redeem, and to have possession of the mortgaged premises ; — but the defendant excepting to this opinion, and to the rejection of his motion, the further hearing was postponed, to have the decision of the whole Court on the case as reported.
    Accordingly, at the succeeding March term in Suffolk, Parker, of counsel for the defendant, solicited the attention of the Court to the cause, contending that the plaintiffs had no right to redeem, without paying, in addition to the amount due on the first mortgage, the sum of 327 dollars, paid by him for the equity of redemption dependent on the first mortgage, and interest; and to entitle him to this claim, renewed the motion made at the former hearing, that the deputy sheriff Arnold should be admitted on oath to explain and amend his return on the writ of attachment served by him, the mistake in the return being merely a clerical one.
   But the Court

were all of opinion with the judge, who sat at the hearing, that the officer could not be admitted to explain, or rather alter, his return in the manner proposed, and determined that the plaintiffs had right to redeem the mortgaged premises, agreeable to their bill; the parties to be heard in chancery at the present term.  