
    Lewisburg.
    Wardsworth, &c. v. Miller, &c.
    
    (Absent Brooke, J.)
    1847. July Term.
    
    A sheriff will be permitted to amend his return on an execution, after an action has been commenced by the plaintiff in the execution against the sheriff and his sureties on his official bond, founded on said return.
    This was a motion by the sheriff of Fayette county, to be permitted to amend his return made upon an execution.
    In February 1841, Wardsworth $* Williams sued out of the clerk’s office of the Circuit Court of Fayette county, an execution against the goods and chattels of 
      Jesse Miller, upon a judgment obtained in said court. This execution was placed in the hands of Henry Stowers, deputy for E. D. Vandal, sheriff of Fayette county, who returned it to the clerk’s office with the f°H°wing endorsement, to wit: “ Levied on two waggons and thirteen head of horses, twelve set of harness, and rescued from my possession and prevented from removing the same by a mob, consisting of” &c.
    Signed,
    
      Henry Stowers, D. S. for
    
      E. D. Vandal, S. F. C.
    In January 1843, Wardsworth Sf Williams instituted an action in the Circuit Court of Fayette county, against the high sheriff Vandal and his sureties, upon his official bond, and laid the breach of the condition of the bond in the failure of the sheriff to make the money upon their execution, and in permitting the property which had been taken in execution, to be rescued. After this action had been instituted, and issues had been made up, the high sheriff moved the Court for leave to amend the return made upon the execution, on the ground that the deputy sheriff when he made that return, was mistaken in supposing that his act amounted to a levy of the execution. The Court, after hearing the evidence, permitted the amendment to be made, and the deputy sheriff set out in his return the facts as he alleged they had occurred, which were as follows: “ That for the purpose of levying the execution on the property of the defendant Miller, I went to his residence in the county of Fayette, and found there seven horses locked in a stable, together with harness for six of them, and a waggon standing hy the stable. Very shortly thereafter, and on the same day, another waggon with six horses and harness was driven up, guarded by armed men, and were unhitched and put in the stable, and were continually guarded by armed men. The waggon last aforesaid was chained and locked to the storehouse, and the waggon first aforesaid was chained and locked to the stable. All the said property was claimed by C. B. Deison and George W. Miller as their property. I told them I must levy on said property, which they affirmed I should not do. I called on all the persons present to aid me in taking said property, which they failed to do. I made every effort myself which I could to take the property in my possession, but was wholly unable to do so. I had not the property at any time in my power, under my control or in my possession. I said to said Miller, Deison and J. Miller, that I had levied on the property; but as I had not the said property at any time in my possession or under my control, I did not levy upon it; and the same was removed out of the county on the night of that day; and I found no other property which I knew to be Jesse Miller's. When I made my former return on said execution, I now believe I was mistaken in the legal effect of what I had done.”
    This amendment was directed by the Court to be made by adding it to the former; and thereupon Wards-worth Sf Williams excepted to the opinion of the Court permitting the sheriff to amend his return, and applied to this Court for a supersedeas, which was granted.
    
      Caperton and Reynolds, for the appellants,
    to shew that the return of the sheriff on an execution of fi. fa. “ levied and the property rescued,” renders the officer and his sureties responsible for the value of the property levied on, referred to Clerk v. Withers, 2 Ld. Ray. R. 1072; Mildmay v. Smith, 3 Saund. R. 679; Bac. Abr. title Ex. letter M.; Gov. for Fisher v. Vanmeter, 9 Leigh 18; 1 Rev. Code, ch. 134, § 48, p. 542, 3; Comyn’s Dig. title Rescue, 37 D.; 3 Croke Jac. 419; Norris v. Crummey & als. 2 Rand. 323. To shew that the sheriff is concluded by his return, they referred to Norris v. Crummey & als. 2 Rand. 323; 7 Law Libr. 52-3; and they then argued to shew that it would be of most mischievous consequence if he was allowed to defeat the claims of creditors founded on that return by amending it. And they referred to Thatcher v. Miller, Mass. R. 270. They insisted further, that the cases relied on to authorize the amendment, were none of them cases in which the application to be permitted to amend the return was made after and whilst an action was pending against the sheriff, founded on that return ; and that this was an important distinction between those cases and the case hnder consideration.
    
      Price, for the appellee,
    admitted the conclusiveness of the sheriff’s return against him; and said that therefore it' was important and necessary that the return should be amended, so that the truth might be brought out. He insisted that the return of the sheriff conferred no rights on the creditor. It was only evidence ; and whilst it is conclusive against the sheriff, if permitted to stand unchanged, the amendment does not preclude the creditor from proving the truth in opposition to the return. He referred to Bullit’s ex'or v. Winstons, 1 Munf. 269; Dawson v. Moons, 4 Munf. 535; Smith, &c. v. Triplett & Neale, 4 Leigh 590; Lathrop v. Lumpkin, 2 Rob. R. 49.
   By the Court.

Affirm the judgment.  