
    James Thatcher and Another, Plaintiffs in Error, versus Seth Miller, Jun.
    This Court refused to permit an officer to amend his return of an original writ, issued from the Court of Common Pleas six years before, and now brought here upon error, the Court below having denied a like motion; although supported by the officer’s affidavit.
    The Court below having refused permission to the officer to amend his return upon the original writ [ Vide ante, vol. xi. page 413],
    Miller, for the defendant in error,
    at the last July term at Ply•. 
      
      mouth, moved the Court, either to allow the officer to amend his return here, or to issue a mandamus to the Common Pleas, commanding them to allow the amendment to be made in the record of that Court; and, in support of the first branch of his motion, he cited Bac. Abr. Tit. Amendment, &c., where it' is laid down, that the record of an inferior court, sent up upon a writ of error, may be amended in the superior court, if the other refuseth ; also the case of Bishop vs. Hall, as stated by Dana, C. J., in the case of Wells & al. Ex'rs. vs. Dench. 
      
    
    
      Thomas and Holmes, for the plaintiffs in error,
    insisted that it was too late to admit the amendment, and that, if it was allowable at all, it could not be done in this Court; and they cited the cases of Williams & al. vs. Brackett, 
       and Hutchinson vs. Crossen. 
      
    
    
      
       1 Mass Rep. 233.
    
    
      
       8 Mass. Rep. 240.
    
    
      
       '0 Mass. Rep. 251.
    
   The cause stood continued to this term for the consideration of this motion ; and now the opinion of the Court was delivered by

Parker, C. J.

The original action being founded upon the trustee process, in which judgment was rendered at * the Court of Common Pleas, a writ of error is brought to reverse that judgment. Although the judgment, as certified to us, is clearly erroneous, for the cause assigned, we have delayed reversing it, that opportunity might be had to apply to the Court below for permission to the officer to amend his return, he having made an affidavit that he did in fact leave a summons witn the principals, as the law requires.

It is understood, that such an application has been made to the Court of Common Pleas, and that it has been refused ; and a motion is now made to this Court, either to allow the return to be amended here, or for a mandamus to the Court of Common Pleas, requiring them to allow it.

But we are all of opinion, that the motion cannot prevail in either respect. Without deciding whether this Court has authority to allow amendments in the return of officers to precepts which issued from, and were returnable to, another court, provided such court should improperly refuse them ; we are satisfied, that this case was peculiarly within the discretion of the Court of Common Pleas, and that we have no reason to question the correctness of their decision. Indeed, if the precept had originally issued from this Court, we are inclined to think, that we should not, so long after the transaction, permit the officer to alter his return. More than six years have elapsed since the return was made ; and the deputy sheriff now offers to insert an essential fact, the omission of which may render him liable to an action for damages. It would be unsafe to expose officers to so much temptation.

At the same term in which a precept is returnable, to correct a mistake or omission may be highly proper ; but for an officer to undertake, six years after a defective return, to know with certainty the performance of a particular duty, when he is daily and hourly performing similar duties upon different persons, is more than can be expected of men, however strong their memory. In the cases cited, where amendments have been permitted, there was something on the record, by which the correction could be * made ; and in such cases there can be no difficulty.

Such was the fact in the case of Bishop vs. Hall, referred to by Chief Justice Dana.

As the amendment cannot be made, and the error assigned is a fatal one, the judgment must be reversed.

Judgment reversed  