
    Jacob G. Collins vs. Joshua Terrall.
    A sheriff levied upon two horses, under execution in his hands, and left the horses in the custody of one H. The horses were taken out of his custody, and the sheriff returned the execution, with the levy indorsed, and the statement “that the horses had "been taken out of the possession of H. by some person unknown Held, upon motion against the sheriff, that he was liable to the plaintiff in the execution for the value of the-borses, to be assessed by a jury.
    If, in such case, the sheriff had given in his return the value of the property seized by him in execution, he would have been answerable to the plaintiff, on the motion, to that amount.
    In error, from the circuit court of Jasper county.
    The plaintiff in error made the following motion in the court below, on the 9th day of May, A. D. 1842 : “ Whereas, on the 27th day of February, 1841, a pluries writ of fieri facias was issued from the circuit court of' Jasper county, directed to the sheriff of said county, commanding him, that of the goods and chattels, lands and tenements of Pierson Lewis and Thomas Wiatt, he cause to be made the sum. of one thousand three hundred and fifty-six dollars and sixty cents, and interest on said sum at eight per centum per annum, from the 7th day of May, A. D. 1S39, until paid, which Jacob G. Collins had in said circuit court,«.recovered against.the said defendants, Lewis & Wiatt, on the 7th day of May, 1839, for damages; also the sum of twenty-eight dollars and twenty-five cents, costs in. that behalf expended, and to have said moneys before the judge of our said court, on the second Monday of May thereafter, to render to the plaintiff his damages and costs aforesaid, which said writ of fieri facias, afterwards, to wit, on the 6th day of April, 1841, at said county of Jasper, came regularly to the hands of Joshua Terrall, then and there being sheriff of said county, to be executed and returned according to law, and the said Joshua Terrall, being sheriff, did levy the same on certain property of the said defendants, on the same day last aforesaid, but did continually thereafter, until the return term of said writ, to wit, the May term, 1841, voluntarily, and without authority, omit to make the money thereon, according to the commands of said writ, contrary to the statute in such case made and provided ; which said sum of money so due on said fieri facias, hath not been paid by said Joshua, Terrall, sheriff, as aforesaid, although he has been often requested so to do, on, &c. at the county aforesaid.
    “ Therefore, the said Jacob G. Collins, plaintiff, moves the court for a judgment against the said Joshua Terrall, sheriff, as aforesaid, for the sum of fifteen hundred and seventy-three dollars and sixty-five cents, being the amount of the damages aforesaid, in said writ mentioned, on the return day thereof, and for interest on' said sum, at the rate of thirty per centum per annum from the return-day of said writ, to wit, the 10th day of May, 1841. Geo. T. Swann, p. q.
    Notice of the motion was regularly given, and on the trial of it, the execution was read to the court, with the return of the sheriff thereon, in these words :
    “Received this writ April 6, 1841. By virtue of this writ, to me directed, I have levied on one sorrel horse and one sorrel mare, as the property of Thornes P. Wiatt, this April 6th, 1841. Joshua Terrall, sheriff of Jaspar county, by S. A. Reed, deputy sheriff.
    “ The above named property was not sold according to advertisement, on account of its being taken out of the possession of Jesse Hyde, by some person unknown. Joshua Terrall, sheriff, by S. A. Reed, deputy sheriff.”
    On application of the sheriff the court permitted him to amend his return, which the sheriff did as follows:
    “The defendants have no goods or chattels, lands or tenements in my county, out of which I can make the money, or any part thereof. May 4, 1841.”
    The sheriff proved that he placed the horses in Jesse Hyde’s stable, who had locked them up, but that-somebody, unknown, at night, broke the stable down, without Hyde’s knowledge, and took the horses away, and they had never been heard of since.
    
      He also proved that the defendants in the execution had no other property in the county.
    The court below overruled the motion. The plaintiff filed bills of' exceptions, and took the case to this court by writ of error.
    
      Geo. T. Swan, for plaintiff in error.
    
      Heyfuon and Dozier, for defendants in error.
    The counsel for defendant respectfully state to your honors, that the motion for .judgment against defendant, is founded on the forty-second section of the forty-eighth chapter of Howard & Hutchinson ; and w.e presume on that part of said section which here follows, “or shall make any other return upon any such execution, as will show that such sheriff, hath voluntarily, and without authority, omitted to levy the same.”
    The court below acted correctly in permitting the sheriff to amend his return. It is the universal practice to permit sheriffs to amend their returns. Walker’s Rep. 518. It is correct to allow a sheriff to amend his return, even at a subsequent term. 3 Marshall (Kentucky Rep.) 350. Hardin Rep. (Kentucky) 63. The return then, does not show that the sheriff voluntarily and without authority, omitted to levy. If the return when amended was false, they might have traversed it.
    'The evidence, as contained in the -bill of exceptions, proves the return as amended, true. The sheriff used ordinary diligence in having the horses locked up in a stable. We think this extraordinary diligence, and the sheriff is not bound to more than ordinary diligence. Story on Bailments, 97. 6 Johnson’s Rep. 9. But plaintiffs wholly failed to make out any case in the court below; they offered no evidence of any kind to prove that S. A. Reid, who styles himself deputy, was such. The return of a person styling himself deputy sheriff, is not evidence against the principal, unless it be shown that such person is deputy. 3 Marshall, 413. The court below, therefore, we think, properly overruled the motion.
   Mr. Justice Thacher,

delivered the opinion of the court.

On the 9th day of May, 1842, of the Jasper county circuit court, the plaintiff entered his motion against the defendant, as sheriff, for judgment for the amount of an execution, for voluntarily, and without authority, omitting to make the money upon a phtries writ of fieri facias, issued out of said court, and placed in his hands on the 27th day of February, 1841. The writ was returnable to the May term, 1841, of said court. It then bore the following return, “ By virtue of this writ to me directed, I have levied on one sorrel horse, and one sorrel mare, as the property of Thomas P. Wiatt, this April 6, 1841. The above named property was not sold according to advertisement, on account of its being taken out of tjie possession of Jesse Hyde, by some person unknown,” &c. Upon the sheriff’s motion, at the May term, 1842, he was permitted by the court to amend his return, which he did by adding to the original return that of nulla bona. Evidence was then introduced to prove the facts of the returns, and the plaintiff’s motion was overruled. Bills of exceptions were taken, and by writ of error the cause is brought into this court.

It was determined by this court in Dorsey v. Pierce, et al., 5 How. 173, that a sheriff cannot be permitted to amend his return upon an execution, after its return term has elapsed. But this point is not necessarily raised in this cause.

The motion of the plaintiff in this case, was probably based upon that portion of the foi;ty-second section of H. & H. 642, which authorizes a motion against a sheriff who “shall make any other return upon an execution, as will show that such sheriff, &c. hath unlawfully and without authority omitted to levy the same.” The word “ levy,” in law, has a technical meaning, which is to collect the money. Tomlin’s L. D. title Levy. This was not done by the sheriff, in this instance, and is he excused therefor by his own showing? If a sheriff’s return makes out a case of rescue, it is not good in law. 2 Saund. Rep. 71, a. And although the goods be lost out of his possession, it will not amount to an excuse which will exonerate him with the plaintiff in the execution. Clark v. Withers, 2 Lord. Raym. R. 1075. Had the sheriff, in this case, given, in his return, the value of property s'eized by him in execution, he would have been answerable to the plaintiff, on the motion to that amount.

The judgment of the court below must be reversed, and the cause remanded, with directions to inquire by a jury the value of the property mentioned in the original return, and to give judgment and award execution against the sheriff, the defendant, in favor of the plaintiff, for the amount thus found. As it does not appear that a demand was made upon the sheriff, the interest directed by the statute in such cases, cannot be added thereunto. H. & H. 296, sec. 25.  