The tenant Barrows disclaims as to one sixth, but insists on his better title to one sixth, in virtue of a levy of execution on the same, as the property of George Spencer. The demandant claims the two sixths, in virtue of his levy on the same, as the property of John W. Spencer and George Spencer, on a joint judgment against the two. The tenant’s levy was prior to the demandant’s, but the demandant’s was made in pursuance of an attachment, on mesne process, which preceded that of the tenant. If that attachment was valid, and the levy regular, the demandant has the elder and better. *416title to the one sixth in controversy, taken by each as the property of George Spencer.
The first objection is, that the attachment was not valid, because the officer who made it did not sign his return until after the tenant’s attachment. But it does appear that whilst the action was pending in the court of common pleas, the officer was allowed to come in and amend his return by signing it. We think it was perfectly competent for that court to permit such amendment; and, when made, it proves that the attachment was made at the time stated in the return. The return, when amended, is to have the same effect as if it had been so made originally. Any other construction would lead to uncertainty, and make the rights of parties depend upon unsatisfactory parol proof.
We have considered it, as if the fact of such amendment being made after the tenant’s attachment were judicially proved, because the case comes before us by an agreed statement embracing that fact. But if the question had arisen, in the course of the trial, on a question of title, and, to prove the fact and time of attachment, a certified copy of the writ and return from the record of the court of common pleas, all appearing complete and correct, had been given in evidence, it is doubtful, to say the least, whether evidence would have been admissible to show that the return had been signed after the cause came into the court of common pleas, in pursuance of an order of that court.
An objection was taken to the demandant’s levy, viz. that it does not distinctly appear by the return that the land was taken, appraised • and set off, and the time when it was set off. Rev. Sts. c. 73, § 23. We think this objection is not sustained by the proof. The return of the officer certifies acts done, which constitute a taking or seizing. He caused it to be appraised, and delivered possession and seizin to the creditor’s attorney, and left him in quiet possession; which could only be done on the premises. The date of the oath, the appraiser’s certificate and the return, being all of the same dav, prove the time of the taking.
Judgment for the demandant for the one sixth not disclaimed.