J:—There are two applications in this case; one by the defendant to set aside the sheriff’s return and another by the plaintiff for leave for the sheriff to amend his return.
The facts are these: A summons was issued to the September Term, 1897, which was regularly served. The sheriff did not make his return, as he ought to have done, at the September Term, but waited until some two weeks after the adjournment of the Court, before doing so.
The Court are unanimously of the opinion that the sheriff had no right to make the return in vacation, and we order that it be set aside.
But while we make that order, a majority of the Court will entertain a motion by the plaintiff to allow the sheriff to make his return now so as to conform to the facts. This is the first term after that to which the return should have been made; the rights of no third parties have intervened; there has been no judgment; and the plaintiff had his process regularly issued and the sheriff served it. We therefore do not think that the plaintiff should under the circumstances of this case lose the benefit of his process and of its service.
By the service of the writ the Court obtained jurisdiction of the defendant and he can suffer no injury by allowing the sheriff to do now what he should have done at the September Term.
Mr. Hilles stated that he would later have the sheriff’s re*90turn in proper form before the Court and would move to make the return in that form.
Mr. Cooper then entered a general appearance.
On December 18th, Mr. Hilles on behalf of the sheriff, presented a petition asking to be permitted to make the proper return, upon which motion the Court made the following order: “ And now, to wit, this eighteenth day of December, A. D. 1897, the foregoing petition being read and considered, it is ordered by the Court that the said sheriff be permitted to make the return on the said writ as in the petition mentioned as of the September Term, A. D. 1897, of this Court.”
Dore, C. J.,dissented from the latter decision.