#### James Thatcher and Another, Plaintiffs in Error, *versus*Seth Miller, Jun.

An officer may be allowed to amend his return of an original writ, although more than six years have elapsed; but he does it at his own peril, being liable to an action if he, by such amendment, maltes his return false.

This was a writ of error brought to reverse a judgment of the Court of Common Pleas for this county, recovered upwards of six years since by the defendant in error, in an action wherein the said *Miller*was plaintiff, and the said *Thatcher fy Al.*defendants.

Several errors were assigned, but the one principally relied on was, “ that the original writ sued out by the said *Seth Miller,*Jun., against the plaintiffs in error, was never served upon them, nor had they, or either of them, any notice of said writ.” And, upon inspection of the record sent up, it appeared that the officer to whom the said original writ was committed for service returned thereon an attachment of certain real estate, and a summons to a person charged as a trustee, but made no return of any summons to the principal defendants, the present plaintiffs in error.

The defendant in error read the affidavit of the officer who served the writ, testifying that he summoned each of the original defendants by reading the writ to them severally; and relating certain facts, by which the circumstance had been fixed in his memory. Whereupon the defendant in error, in order to obtain leave in the court below for the officer to amend his return, suggested a diminution of the record, and moved for a *certiorari*to issue to the Common Pleas to certify the whole record.

The plaintiffs in error contended that it would be very dangerous to permit officers to amend their returns from memory [ *414 ] only, after so long an interval of time, which in this * case was more than six years. Amendments are not regularly to be allowed, except *pendente lite.*

(b)

**See S. C. *Thatcher*vs. Miller, 13 *Mass. Rep.*270.— *Welles & Al.*vs. *Batelle & Al.*post, 481. — *Commonwealth*vs. Parker, 2 *Pick.*550. — *Smith*vs. Hudson, 1 Cow. 30. — Jackson, *Dem.*Culver, vs. Brown, 4 *Cow.*550.— *Williams*vs. Rogers, 5 *Johns.*163

*Curia.*

The first error assigned is, that there was no service of the original writ upon the defendants; and, upon inspection, the return of the officer does not show that a summons was left with or read to either of them; yet it appears that the action was continued several tetáis, and that the defendants were notified of the levying of the execution upon their property, they having chosen one of the appraisers, who set off the real estate. Still the want of service is error fatal to the judgment, since the record does not show that the defendants ever entered an appearance to the suit, *(a)*

*375*Thomas*and the *Solicitor-General*for the plaintiffs in error.

*Wood*and *Miller*for the defendant in error. (b)

But as no defence is now suggested against the demand upon which the original suit was brought, and as it does not appear that any advantage was taken of the debtors in the service of the execution, we think it our duty to give opportunity to have this error corrected in the Court of Common Pleas, with whom the record still remains. And it appearing, by the affidavit of the officer, that he did, in fact, make a legal service of the writ, and that it was through his carelessness only that it does not appear in his return, we are inclined to continue this action until the next term, that in the mean time application may be made to the Court of Common Pleas for leave for the officer to amend his return, which we think that court has the power to grant. Such motions have often succeeded in this Court, although made several years after the fact omitted in the return; and there seems to be no reasonable objection, since the officer amends at his peril, and is liable in an action if he makes a false return.

Let a *certiorari*issue to the Court of Common Pleas; and when that shall be returned, the other errors suggested can be attended to.

(a)

*Smith*vs. Rice, post, 512