
    Edwin Palmer, Trustee vs. John R. Thayer and another.
    A trastee In insolvency takes the property assigned subject to the; equities which affected the debtor.
    Fraudulent conveyances of the assignor however, being void against creditors, ; are also void against the trustee, such a conveyance creating no equity in the fraudulent grantee.
    The court may allow an officer to amend his yeturn after the case has gone into judgment, after the expiration of the term at which the judgment was rendered, and after the officer has gone out of office.
    It is settled in this state, (departing from the common law;) that an 'officer’s • return is only prima facie evidence of the facts stated in it.
    An officer attached personal property on the 2d day of December, 1850, but by mistake stated in his return that he attached it on the 2d of January, 1857. The defendant in the suit made an assignment of all his property for the benefit of his creditors on the 25th of February, 1857. The assignment operated by law to dissolve all attachments of the property made within sixty days preceding. The debtor supposed the attachment to have been made at the time stated in the return, and made bis assignment in the belief that he was thereby dissolving the attachment. The trustee in insolvency, after demand, brought an action of trover for the property against the officer and the plaintiff in the suit. While the last suit was pending, after the lapse of more than a year from the time when the first, suit Went into judgment, and after the officer had gone out of office, the officer filed a motion praying to be allowed to amend his return so as to make it conform to the fact. It appeared that the officer had not discovered the mistake until after the case had gone into judgment and after the assignment had been made. Held, that the amendment might properly have been allowed ' against the debtor, and ought equally to be allowed against the trustee. .
    [ *238 ] *Trover, for-a quantity of lumber, brought ; by the plaintiff as trustee in insolvency of the estate of Isaac Gr. Ford.
    Ford was the owner’ of thedumber on the 2d day of Decern-. ber, 1856, at which ■ time it was attached by the defendant Thayer, asa con stable, upon a writ in favor of Prentice,, .the other defendant, the property being at the time in the hands of Thayer as a constable under a prior attachment. The writ was returnable to the superior court, at its session in-New London county on the 3d Tuesday of- January, 1857, and Prentice obtained judgment by default at that term. The constable, in making his return upon the writ, stated the attachment to have been made on the -2d day of January, 1857, instead of the 2d day of December, 1856, the time when it was actually made. On the 25th of February, 1857, Ford made a general assignment in insolvency to the plaintiff as trustee. Under our insolvent laws the effect of this assignment was to dissolve all attachments of the - property of the debtor made within sixty days' preceding, and to. vest the- property free from the attachments, in the trustee. The trustee having demanded the property of the constable and of Prentice, brought the present action against them. The suit was brought to the April term, 1857, of the superior court in New London county, and at the August term of the court in the year 1858, and while the action was pending, the defendant Thayer filed a motion to the court, praying to be allowed to amend- his return upon the writ of attachment against Ford, so- as to state the attachment to have been made on the 2d day of December, 1856, instead of the 2d day of January, 1857—averring that the attachment was actually made on the former day, and that the latter-day was stated in the return wholly by mistake, and that he did not discover the mistake until after the close of the term of the court to which the writ was returned and at which judgment was rendered'in the suit, and not until after Ford had made his assignment in insolvency. To this motion the plaintiff filed an answer, averring that Ford, at the time of his assignment, had no notice of any other time of the attachment than that stated in the return, and that the indorsement of the officer *upon the copy left with [ *239.] him in service stated the attachment to have been made on the 2d day of January, 1857, and that he supposed it to have been made at that time, and made his assignment in insolvency on the 25th of February, 1857, and within-sixty days from said 2d day of January, in that belief; and insisting that-the amendment 'ought not to be allowed as against the plaintiff, who was a trustee for creditors, whose right would be -prejudiced by the allowance of the amendment. The court found the allegations ot both the motion and the answer to be true, and further found that the defendant Thayer went out of office on the 1st day of October, 1857, and had not held the office of constable since ;.and on the facts so found, allowed the amendment to be made ; tbe action of the court, both in receiving the evidence and in allowing the amendment, being subject to the opinion of this court as to the admissibility of the evidence and the propriety of allowing the amendment upon the facts proved by the evidence. The court also found the value of the property, and reserved the case for the advice of this court as to the judgment to be rendered;
    • Halsey and Crocker, ([with whom was Waite,) for the plaintiff.
    1. The officer’s return can not be contradicted or falsified by him, without a violation of well established principles of law as to the conclusiveness of such returns. Gardner v. Hosmer, 6 Mass., 325, 327. Sheldon v. Payne, 3 Seld., 453, 457. Gardner v. Hosmer, 22 Maine, 14. Barrett v. Copeland, 18 Verm., 69. Benjamin v. Hathaway, 3 Conn., 528. Williams v. Cheesebrough, 4 id., 356. The return of an officer is the only certain and safe criterion on which third persons can rely for information. Gates v. Bushnell, 9 Conn., 536.
    2. If such alteration of the officer’s return is otherwise allowable, it ought not to be permitted to be done so as to affect or divest the rights of Ford’s creditors under his assignment. The position of th'e plaintiff is that of a creditor and bona [ *240 ] *fide purchaser. Swift v. Thompson, 9 Conn., 63, 69. Meade v. Smith, 16 id., 346, 360. A court of equity will not interfere on the ground, of accident or mistake against a bona fide purchaser, for such purchaser has as high a claim to protection as any other person can have. 1 Story Eq. Jur., sec. 108. The party asking for relief on the ground of mistake must stand upon some equity superior to that of the party against whom he asks it. Id., secs. 176, 7. The general rule is, that, if a party loses his remedy at law by negligence, he shall not be relieved in equity. 2 Swift Dig., 94. Penny v. Martin, 4 Johns. Cha., 566. Equity never interferes to aid one creditor against another on the ground of mistake. Smith v. Turrentine, 2 Jones Eq. R., 253. No amendment of an officer’s return will be permitted, or allowed to have effect, when such amendment would destroy or lessen the rights of third persons previously acquired, bona fide, and without notice by the record or otherwise. Drake on Attachment, sec. 219. Emerson v. Upton, 9 Pick., 167. Means v. Osgood, 7 Greenl., 146. Berry v. Spear, 13 Maine, 187. Banister v. Higginson, 15 id., 73. Fairfield v. Paine, 23 id., 498. The plaintiff in this case stands in precisely the same position as to his rights that he would have occupied had he been appointed trustee upon compulsory proceedings in insolvency. Had Ford’s, property been put into a trustee’s hands by the court of probate, on proceedings had for that purpose by his creditors, and had the trustee duly qualified himself, by giving bonds, taken the property into his hands, and proceeded in the settlement of the estate and incurred expense, and all the while relying in full faith upon the correctness of the record, and without any knowledge of the mistake, it is clear that the property could not have been taken or kept out of his hands under such a claim as is here set up. To allow it to be done would be hostile to the policy and object of the law, as well as opposed to every principle of justice and reason.
    
      E. Perkins, for the defendants.
    It is conceded by the plaintiff, and is found by the court *as a fact, that the lumber in question was ac- [ *241 ] tually attached on the 2d of December, 1856, but that by mistake the officer made return upon the writ that it was attached on the 2d of January, 1857. As between the original parties to the suit of Prentice against Ford, there can be no question, upon any authority, but that the officer in these circumstances ought to be allowed to amend his return, according to the facts, within a reasonable time. We claim that the amendment ought equally to be allowed against the present plaintiff. The right so to amend was an equity existing at the time of the assignment to the plaintiff, known to the assignor, and constructively therefore to the plaintiff. The plaintiff as assignee in insolvency takes the property subject to such equity. His interest in the property is derived from the statute of 1853. By that act he takes the assignor’s interest, nothing more, nothing less ; he is not therefore in the situation of a bona fide purchaser without notice ; and under the statute he takes the property subject to all attachments made more than sixty days previous to the assignment. Rev. Stat., (Comp. 1854,) p. 514. The language of the act is not, attachments returned as made, but attachments made, &c. The taking of the property is the test, not the return. The return is the officer’s justification for his act, and is the ordinary evidence of the attachment, but the attachment itself is distinct from the return and must be complete before the return is made.
   Ellsworth, J.

The title of the plaintiff to the property in question, is as assignee of Isaac Gf. Ford, who failed and assigned his property on the 25th day of February, 1857. It is not denied that the defendants, one of. whom is the attaching creditor of said Ford, and the other the officer who served the writ and took the, property, have a good and legal defense, if the evidence offered by the defendants to prove the day when the pioperty was attached is admissible in proof; and if, further, there be nothing in the character and position of the plaintiff, [ *242 ] as assignee for- creditors, to *exempt him from the consequences which would otherwise ensue.

We.state the question in this form, because we have nothing to do with the sufficiency, or effect of the evidence when admitted, for the superior court, found it to. be sufficient, and reserved only the question of its admissibility for our advice ; and because receiving proof of the fact as to the time when the writ wras served, is not exactly the same thing as receiving proof to contradict an official return, although the distinction will make little or no difference - in this , case.; for, upon the evidence adduced, the court allowed the officer to come into court and amend his return according to the truth of the fact, and so it then appeared from the return itself, that the defendants’ attachment was op the 2d day of December, 1856, and not on the 2d day of January, 1857,,as the return first stated. If the law be, as has been claimed, that the day of the attachment can not be learned except from the return, and.'indeed that the existence of the attachment itself can not be proved except by it, then enough was done to satisfy even this rule, for .the court have found the fact to be as claimed by the defendants, and have allowed the return to be anaended so as to" speak in conformity to the truth of the fact.

In Connecticut the law is settled, and has been ever since, and probably before, the cases of Watson v. Watson, 6 Conn., 336, and Wilkie v. Hall, 15 id., 36, that an officer’s return, whether on mesne or dinal process, is only prima facie, evidence of the fact stated in it, and may be collaterally as well as directly inquired into .and denied, which we suppose is contrary to the common law and to that of some of the adjoining states; but we believe it is the law of our courts, and therefore, in this case, we see not why the defendants should not have been allowed to prove the time when the attachment was made, as the fact became ¿11. important to. their defense.

Looking at the subject more generally, the questions stated are of no ordinary interest and importance, and well deserve careful examination. And, as to the first, it may be [ *243 ] ' flaid down as a general principle of law., that mistakes are and ought to be amendable, provided the correction is asked for within a reasonable time and in proper manner. • To err is incident to human affairs,, and no jurisprudence ’ is entitled to be reckoned just or wise, which does not admit the possibility of error, and provide such redress, when it is discovered, as is consistent and practicable. The most solemn transactions are not exempt from error; neither judgments, decrees, records, • deeds, nor writings of any kind; and this principle we fully admit whenever we allow these, records and muniments of title to be corrected in equity and otherwise as we often do. The court in Massachusetts say, in Clark v. Lamb, 8 Pick., 418, “ In all proceedings mistakes will occur,-notwithstanding all ordinary care; and when they do thus happen, they ought, if possible, to be corrected without injury to either party.”

Why now should the returns of executive and ministerial officers be considered an exception to the general rule ? Where these officers 'have failed to state the precise truth, as they are sworn to do, in their indorsements on process which they have served, why may and ought they not to be allowed afterwards to do it, both on tneir own account and to protect the rights of the parties to the process, if it can be done consistently with the rights of third persons? We perceive no reason for an exception ; and in fact we well know there is no exception, not even in judicial proceedings. During the first term of the court, and all future terms while the case is pending in court, any judgment, decree, order, entry, or return of process is amendable, and, if an error has intervened, ought to . be amended and made to speak the exact truth. Such is the uniform practice in all our courts we believe. Nor are the corrections-in all cases, of necessity or in practice, confined to a term of the court in which the case is pending. The rule is much broader.

We do not think it an open question in our courts, whether a sheriff may be allowed to amend his return. It was decided that he could do it in Wilkie v. Hall, (supra,) although, in that particular case, the amendment which had *been made in the county court was not approved by [ *244 ] the higher court—not however for the want of power in the county court, but for other reasons. And such is now the undoubted law, both in England and in all the states of Our republic The cases are exceedingly numerous, especially in the reports'of Massachusetts and New Hampshire, but we cite only a few of them. Whiltier v. Varney, 10 N. Hamp., 300. Wendell v. Mugridge, 19 id., 109. Clark v. Lamb, 8 Pick., 415. Thatcher v. Miller, 13 Mass., 270. Tilden v. Johnson, 6 Cush., 357. Gibson v. Bailey, 9 N. Hamp., 168. Ohio v. Life Ins. & Trust Co. v. Urbana Ins. Co., 13 Ohio, 227. Pratt v. Wheeler, 6 Gray, 520.

-To the-exercise of this power there are undoubtedly limits beyond which it can not be properly allowed; one is, (though it is one affecting the officer rather than the court) that an officer may not, without leave of court, alter his indorsement of service after the process has once been returned to the court, for the process is then out of his hands, and has become a part of the files of the court. Beyond this, amendments of this class would seem to be very much within the sound discretion of the court, to be allowed or not according to the circumstances of the case. Certainly, license should be given only where the amendment is in furtherance of justice, and can be made understanding^ and discreetly, and the mistake is most clear and palpable. As to the time for such correction, it may be made while the court to which the process is returned is in session, or afterwards, when the mistake is discovered, if the court will give its permission ; for the power is the same in both cases. Nor is it indispensable that the officer be still in office, though this circumstance is treated as material in some of the reported cases; but in none of them is it laid down to be indispensable, while in some it is said not to be, and we confess we. do not see why it should be, as the amendment will be allowed only in the discretion of the court, and will- be made, whenever it is made, under the sanctions and penalties of the law. Gibson v. Bailey, 9 N. Hamp., 169. Adams v. Robinson, 1 Pick., 461. Thatcher v. Miller, 11 [ *245 ] *Mass., 413. Welles v. Batlelle, id., 477. In the last case the court remark (page 481) that though the sheriff is out of office, he will act under the penalties of the law in amending the return.

These are the reasons which bring us to the conclusions that the evidence offered below was correctly received, and the amendment of the officer’s return properly allowed ; unless indeed, the plaintiff, being assignee for the benefit of the creditors of I. G. Ford, stands on'different ground from Ford himself; which is the second question to be considered.

In the English courts no such distinction would be admitted or countenanced for a moment. The courts there have always held that the assignee of a bankrupt takes the estate of the bankrupt as the bankrupt himself held it, subject to all the existing equities, not because of any peculiar provision in their bankrupt law, but because of the obvious and natural justice of the thing itself. They hold that the assignee is a mere instrument of the law to receive and settle the estate of' the bankrupt, a kind of net to gather in and keep whatever of his estate is left, and divide it proportionally among the creditors—that he is not a bona fide purchaser, one who has without knowledge advanced his money upon the faith of a clear and perfect title in the vendor, but rather a volunteer, taking what the bankrupt has to assign, neither more nor less. We need not cite cases to these points, for they abound in all the books and elementary treatises in our libraries, and may be found brought together in 2 Story Eq. Jur., secs. 1228,1229, and commented upon in the case of Mitchel v. Winslow, 2 Story R., 638.

Why is not the English doctrine applicable here ? What is there in the nature of a general assignment to vary the equities between the parties ? If the bankrupt had fraudulently conveyed away his property before he failed and assigned, that conveyance of course created no equity in favor of the fraudulent grantee, and is by statute made positively and absolutely void as to creditors, so that the property yet remains the proper estate of the bankrupt, and the assignee, acting in their behalf, must inventory it and treat it *as a portion of the as- [ *246 ] sets. So our court held in Swift v. Thompson, 9 Conn., 63, in Andrus v. Doolittle, 11 id., 286, in Miner v. Mead, 3 id., 289, and in Booth v. Patrick, 8 id., 106. In the last two cases it was held to be the duty of the executor or administrator of a fraudulent grantor, to inventory the property fraudulently conveyed away. And although, in Swift v. Thompson, the learned judge who gave the opinion of the court does, in his remarks, compare an assignee in insolvency with a bona fide purchaser, it is an illustration which the case did not call for, and which, as a principle of law, I must think is open to great doubt, as is shown by Williams, J., in his dissenting opinion. Suppose I purchase a farm of my neighbor, and pay him for it $5,000. Through mistake one of the witnesses to the deed was really incompetent as a witness, and my deed is therefore, as a conveyance of legal title, inoperative. The vendor fails and assigns all his estate. The assignee-takes the legal title of the farm, but does he take the equitable ? Have not I an equity, alien on the farm, a claim altogether higher than that of the assignee ? Or will he hold the farm, and force , me to come in as a general creditor and take my pro rata share ? The farm in equity and truth is my own, and I could have got a new deed of it from my grantor. Why may I not hold it against one who occupies his place for the single purpose of settling his estate ?

This question has often been before the courts of this country, and, so far as I can learn from the books, they have uniformly followed the English decisions. Judge Story (in. 2 Eq. Jur., sec. 1229,) says: ■“ But there is a clear distinction between the ■case of such a general assignment for the benefit of creditors generally, and a particular assignment to specified creditors for their particular security or satisfaction. The former are deemed to take as mere volunteers, and not as purchasers for a valuable consideration, strictly so called. The latter, if a* conveyance of the property has been actually made, and they have no notice of the purchase .money being. unpaid to the vendor, are deemed entitled to the same equities as any other bona fide particular purchasers.”

[ *247 ] *TKe same is held by Chancellor Walworth in The Matter of Howe, 1 Paige, 128. He there says, “ It is a well settled rule of equity that the general assignee of a bankrupt takes his estate subject to every equitable claim which exists, against it bv third persons, and that the. assignee can not avail himself of the legal estate thus acquired to defeat a prior equhy of which he had no notice at the time of ' the assignment. He differs in this respect from a bona fide purchaser of the legal estate, and from mortgagees who have advanced their money on the credit of the land, and who are considered quasi bona fide purchasers. I can see no good reason why a different rule should be applied to general assignees for the benefit of all the creditors, created by the voluntary act of the debtor, from that which prevails in respect to those created by operation of law. Neither can be considered bona fide purchasers who are protected because their legal estate is united to an equitable one.” He cites numerous authorities in support of this position, to which we need not particularly refer. The same doctrine is held in Mitchell v. Winslow, 2 Story R., 636, and in Pratt v. Wheeler, 6 Gray, 520, and is impliedly admitted in Bailey v. Greenleaf, 7 How., 56. See also Warren v. Fenn, 28 Barb., 334 ; Dows v. Dennistoun, id., 400; Watson v. Wells, 5 Conn., 472.

Upon the whole, we are satisfied that the plaintiff, as assignee of Ford, takes the estate assigned subject to the defendants’ equity, and not as a bona fide purchaser for a valuable consideration ; and therefore, as the officer’s return could have been amended as against Ford himself, it can now be 'amended as against the present plaintiff, as the court below was fully satisfied of the existence of the mistake which was the ground of the application.

We think the evidence was admissible,-and. that judgment should be rendered for the defendants.

In this opinion the other judges concurred.

Officer’s return to be amended.

Judgment,to :be rendered for defendants.  