afterward drew up the opinion of the Court. The demandant claims under a conveyance from John Wait, dated December 15, 1828, to Abijah L. Burnap ; the tenant, under a levy of an execution against John Wait, and an attachment on the original writ, the attachment being dated, as *198returned by the officer, December 17, 1828, at half past 1 o’clock in the forenoon. It was proved that the conveyance was made after noon of the 15th of December, 1828.
The tenant moves, that the officer may be permitted to amend his return according to the alleged truth, so as to state the attachment to have been made on the 15th, instead of the 17th of December, 1828, at half past 11 o’clock in the forenoon, which would be before the conveyance. And -lie question is, whether the amendment shall be made.
In Williams v. Brackett, 8 Mass. R. 240, the officer was not permitted to explain his return, so as to make it apply to other lands of the debtor, although he was offered as a witness to prove such explanation. The officer’s return cannot be amended by parol. Davis v. Maynard, 9 Mass. R. 242. In the case of Thatcher v. Miller, 11 Mass. R. 488, the officer was not permitted to amend his return on the original writ six years after it was served, by adding that he left a summons with the debtor. And that was a case between the parties to the original suit ; and the officer made an affidavit of the fact proposed to be added to the return, and no objection was made to the process or the justice of the debt, or of the levy of the execution. The case was sent to the Court of Com mon Pleas, where the record remained, to the end that that court might order the amendment, if they should think proper to do so. But that court refused to permit it. Afterwards the case came on again in this Court, 13 Mass. R. 271, and the plaintiff in error moved for a mandamus to compel the Court of Common Pleas to order the amendment ; which this Court refused, to grant, and observed, that if the precept had issued from this Court, they were inclined to think it would not permit the amendment so long after the transaction.
Judgments may be amended by the judge’s notes after a writ of error. 6 Dane’s Abr. 302.
And we have no doubt but that amendments may be permitted, of the return of an officer, under certain circumstances, where there is something to amend by ; as was done lately in the case of Haven v. Snow, 14 Pick. 28, from minutes made at the time upon the writ. It would be analogous to the clerk’s making up his records at large from memo randoms made on the docket at the time.
*199This subject was much discussed in Emerson v. Upton, 9 Pick. 167, and it was held, that an amendment, made by leave of the Court of Common Pleas, of the officer’s return on the writ, cannot affect the right of persons, who were not parties to the suit, acquired before the amendment is made. The Court observed, that “ the officer should be bound by the official stamp which he gives to his proceeding ; there is no other guard or check upon him. He should, at least, make a minute of his doings when the act is to have its legal operation, and not, after months have elapsed, be permitted to retrace his steps, and change the whole effect of his proceedings, as apparent by his official return.”
In the case at bar, the Court are called upon to permit the amendment, not months but years after the transaction, and after a title has been acquired by a third party who had no connexion with the writ in the original suit. Independently of the time, upon examining all the evidence in the case, it is questionable whether the return is not correct as it now appears.
[The judge here went into an examination of the evidence.] On the whole, we are very doubtful whether in fact there is any mistake in the return, as it appears upon the writ. There is no original minute of the officer, made at the time, to amend by. The amendment, if permitted, must be allowed upon doubtful inferences from questionable facts. But the party moving for the amendment, should make out the mistake beyond any reasonable doubt. It is the opinion of the whole Court, that the officer should not be permitted to amend his return, and that the judgment should be for the demandant.
Tenant defaulted.