#### WILLIAM PHILLIPSE, et al., vs. LEONARD & SAMUEL HIGDON.

Where a Court has power to allow an amendment, the exercise of its discretion cannot be revised by an appellate tribunal. But where a Superior Court allows an amendment without power, the Supreme Court upon appeal will correct the error.

A Court has not power to allow an amendment, by which the rights of persons not parties, will be affected; for example, to amend a fi. fa.} so as to make it an alias, and give it relation back, and other like cases. Nor has a Court power, by allowing an amendment, to defeat or evade the provisions of a statute; for example, to allow the sheriff’s return of a levy on land to be amended, by inserting a particular description of the premises, required by statute, the original return being defective, and so of the like cases.

The subject of amendments in the pleadings, process and records of Courts discussed, and the principles relating thereto, stated and explained.

(The cases of Quielt v. Boon, 5 Ire., 9; Galloway v. McJZciihen, ibid, 12; Bender v. Askewy 3 Dev., 149; Purcell v. McFarland, 1 ire., 34, and Cape Fear Bank v. Wil* liamson, 3 Ire., 147, cited and approved.)

This was a rule against the defendants to show cause why a constable should not be allowed to amend his return of a levy of a Justice’s execution on land, returned to the County Court, so as to make the description comply with the requirements of the statute. Upon an appeal from the County to the Superior Court, the case was tried before Ellis, Judge, at Haywood, on the last Spring Circuit, when the following appeared to be the facts shown by the transcript of the record sent up to this Court: — ■

*381“ The levy of the constable was endorsed upon a Justice’s judgment in the following words : — c Levied this execution upon Leonard Higdon’s land, lying on Carny Fork.’ It appeared that under this levy, after it had been returned to the County.Court, and an order of sale obtained, the land was sold by the sheriff, and one John B. Allison became the purchaser, at $115. It appeared also, that one Chasteen had the legal title previously to that time, and had contracted with the defendant, Leonard, for the sale of it, and that the latter had paid the price agreed on, but had not taken a deed when the said levy was made. On the part of the defend* ants in the rule, it appeared that Samuel, the son of Leonard, had made a contract with his father for the purchase of his interest in said land, and that in pursuance of this agreement, and by the direction of Leonard, the said Chasteen had, after the sheriff’s sale, accordingly made title to the'land to Samuel.

“ One Coward testified.that the lands were as well identified in said levy, as they would be by a strict compliance with the words of the statute ; that no other land ^adjoined them, except that of the State, known as the ( Speculation claim,’ covering a large tract of country, and that Leonard Higdon then lived on said land and had no other in the county so far as was then known ; that since that time he had seen a deed to him for other lands on Carny Fork, but this was not generally known at the time of the levy. Another witness testified that the land was as well identified in the levy, as it would have been by adopting the words of the statute, and the public generally knew the land in question by the description in the levy. Higdon lived on it at the time, and so far as was generally known, had no other land in the county.

“ Another witness testified, that as agent of J. B. Allison, he went to the defendant, Leonard, soon after the sale, and told him he might redeem the land by paying what it sold for, or that Allison would buy from him, by increasing the price to what the land was worth: Said Leonard replied, he had not the money with which to redeem the land, and that he must sell it. And it was then agreed between them, that the land was worth $325, which sum the witness paid to him for said Allison, it including the amount bid at the sale. Thereupon said Leonard surrender* *382ed the possession to Allison, who conveyed to the plaintiffs ; and his deed was exhibited.

“ It also appeared in evidence, that an action of ejectment, by Samuel Higdon, against the plaintiffs, for the premises in question, is now pending in the Superior Court of Haywood county, and has been pending for several years.”

The defendants’ counsel objected to the. amendment, for that the Court had not the power to make it — that it could not take cognizance of it upon the case sent up from the County Court— and that if it had the power, the evidence did not warrant its exercise here.

His Honor gave judgment making the rule absolute, and the defendants appealed to the' Supreme. Court.

J. Baxter, for the defendants.

.Gaither and N. W. Woodfin, for the plaintiffs.

Peaks ON, J.

Our jurisdiction in regard to amendlnents in the Court below, is confined to tlie question of power ; with its discretion in the exercise of the power, supposing the Court below to have it, we have no concern.

The subject may be divided into three classes : 1. Every Court has ample power to permit amendments in the process and pleadings of any suit pending before it. Quiett v. Boon, 5 Ire. 9. 2. Every Court of record has ample power, after a suit is determined, to amend its own record, that is, the journal or memorial of its own proceedings, kept by the Court or its clerk, by inserting what has been omitted, or striking out what may have been erroneously entered ; for every Court of record is entrusted with the very responsible duty of keeping it faithfully and making it speak the truth, as it imposts absolute verity, arid cannot be collaterally called in question ; and the record, so amended, stands as if it never had been defective. Galloway v. McKeithen, 5 Ire., 12. 3. The power of a Court to allow amendments, after the determination of a suit, in the process or returns made to it by ministerial officers, is much more restricted and qualified, for the reason, among others, that the Court is not in such cases *383presumed to act upon its own knowledge, but upon information derived from others. The case now under consideration falls within this class of amendments ; and it may be subdivided into three heads: (1.) .Where the amendment is for the purpose of correcting a mere oversight of an officer in not making an entiy, such as he ought to have made as a matter of course, and as a part of his duty according to law, the Court has power to allow the amendment, notwithstanding third persons may be thereby affected; e. g., if a clerk, in sending an execution to another county omits to affix the seal, or a deputy sheriff, in making a return, signs his own name but omits to sign the name of the high sheriff. Bender v. Askew, 3 Dev., 149. Purcell v. Mc Farland, 1 Ire., 34. (2.) Where the amendment is for the purpose of making the process different in substance from what it was when it issued, the Court has no power to allow the amendment, if the rights of third persons will be thereby affected : — e. g., if a fieri facias issues, and a motion is afterwards made to amend it, so as to convert it into an alias and give it relation back ; or, if a fi.f oKfeoes not conform to the judgment, and the object of the amendment is to make it conform. Cape Fear Bank v. Williamson, 3 Ire.; 147. 4 Maul & Selwyn, 328. This principle applies to the present case, because Samuel Higdon alleges that he is a purchaser for value, and is a third person who will be affected by the amendment, the object of which is to make the return of the constable different in substance from what it was when made. We will not put our decision on this ground, however, because the other defendant was a party to the original proceeding, and the case clearly falls under the third head. (3.) Where the amendment will evade or defeat the operation of a statute, the Court has no power to allow it. This is clear ; for no Court has the power of nullifying a statute. By way of illustration, the statute requires tha^a levy should describe land in a particular wa3>-, for the purpose of informing the defendant in the execution, and all who may wish to become purchasers, what land the sheriff is to sell: — If a levy is not sufficient, and a sale under it is made good by an amendment of the levy, the effect is to defeat the operation and purposes of the statute, and to allow land to be sold without the safeguards which the Legislature has *384provided against surprise and fraud. It might happen that a defendant in an execution, who from the levy, “ land lying on Carny Fork,” was under the impression that some out tract of his was to be sold, might, after the sale, find himself deprived of his “home place,” under the power of the Court to allow the constable to amend his levy by adding the words — “ being the tract of land lying on the forks of the said creek, on which the defendant now resides. ”

The judgment must be reversed and the rule discharged, and judgment against the plaintiff for costs.

Per Curiam, Judgment reversed and the rule discharged.