The return of the sheriff cannot be impeached in this action, and the only recourse of the injured party is against the sheriff and his sureties. (United States v., 1 McLean C. C. R. 246; Goodall v. Stewart 2 Hen. & Mum. Virg. R. 105; Trigg v. Lewis' Executors, 3 Little Ken. R. 129; Deller v. Roberts, 13 Serg. & Rawle, 64; Blythe v. Richards, 10 Serg. & Rawle, 261, 266; Stoons v. Kelsey, 2 Paige, 418; Stinson v. Snow, 1 Fairfield, 10 Maine R. 263; Buckminster v. Appleby , 8 N.H. 546; Hodges v. Laird , 10 Ala. R. 678; Comp. L. p. 97, 98, secs. 6 to 9.)
The cases cited in regard to amended returns, are attachments on real estate, and it also appears affirmatively from the cases that the sheriff had nothing to amend by, except from memory. In this case the amendment was allowed by order of Court after notice to the parties to this suit.
JUDGES: The opinion of the Court was delivered by Mr. Justice Heydenfeldt. Mr. Justice Terry concurred.
OPINION
HEYDENFELDT, Judge
It is unnecessary in this case to consider whether a sheriff's return in one action can be impeached in another suit by a stranger to the first action. It is very certain that the sheriff had no right after making a return to amend it so as to affect rights which had already vested.
The case must go back, and the first return of the sheriff must be taken as conclusive as against Schloss and Goldstein, as far as regards the rights of the plaintiffs.
Judgment reversed, and cause remanded.