Cole v. Dugger , 41 Miss. 557 ( 1867 )

Harris, J.,

delivered the opinion of the court.

The only question necessary to be determined in this case, as now presented, is raised by the first assignment of errors : Can the return of a sheriff, upon an attachment, be amended by him after the return term, and after he has gone out of office ?

Official returns upon ret/arnable process are made evidence, because it is the official act of ah officer under oath, acting by the direction and requirement of the law.

■; Eaith is given to these official returns on account of the existing duty and obligation of the officer who makes them to state the truth. The law makes them certifying officers of then legal acts and doings on returnable process, by requiring them to reUzrn, and holding them responsible for the truth of their returns. See Phil. Ev., Cowan and Hill’s and Edwards’ notes, 2d vol. pp. 367-8, and 376, and authorities cited.

Hence, where the term of the officer has expired, and he is no longer under the duty and obligation imposed by law, his certificate or return can be of no greater validity or legal obligation than the returns or certificates of other citizens.

It is said that the return cannot even be amended by order of court by the officer making the return, and during the continuance of his term, so as to affect the rights of persons not parties to the suit acquired before amendment. 2d Phil. Ev., Cowan and Hill’s and Edwards’ notes, p. 376; and Emmerson v. Upton, 9 Pick. R. 167; Freeman v. Paul, 3 Greenleaf’s R. 260; Putnam v. Hall, 3 Pick. 445; Means v. Osgood, 7 Greenleaf, 146, are cited to this point. We do not deem it necessary to express an opinion on this point, as we do not think it is properly presented in this record, though attempted to be raised by the second assignment of errors.

For the error in permitting a sheriff, after his term of office had eapired, to amend bis return on returnable process, this judgment will be reversed and cause remanded for further proceedings.