I fully concur with Judge Dalt that this judgment is erroneous, and should be reversed. The plaintiff established his right to recover upon proving the undertaking entered into by the defendants, the rendition of the judgment L.erein referred to, and the sheriff’s return of the execution --sued upon the judgment unsatisfied. The reasons which --av have induced the sheriff to make such a return, or '•.'aether it was made upon request of the plaintiff in the action 7 not, were entirely immaterial, and not the subject of inquiry -i *m action like this.
By 2 R„ S. 440, sec. 77, sheriffs are required to execute and • me due return of all process delivered to them, according to *98the command thereof, and for any violation of this provision they are liable to an action for damages, by the aggrieved party, in addition to such other punishment as the law authorizes ; and the general rule is too well settled to admit of any doubt, that their acts hi the return of such process, as far as the rights of parties affected thereby or their privileges are • concerned, must be taken as true when brought into contest collaterally, and can only be impeached by direct proceedings, such as those which make the officer a party, or rectified upon a summary application to the court to annul or set aside the return. Harrington v. Taylor, 17 East, 378 ; Rex v. Elkins; 4 Burrows, 2129 ; Bean v. Parker, 17 Mass. 591; 4 Id. 478 ; 9 Id. 96 ; 10 Id. 313; 11 Id. 163; 15 Id. 82 ; Boynton v. Willard, 10 Pick. 169; Andrews v. Linton, 1 Salk., 265 ; 3 Cowen, Hill and Edwards’ Notes to Phill. on Ev. 370 ; Sewwell’s Law of Sheriffs, 387; Putnam v. Mann, 3 Wend. 202 ; Allen v. Martin, 20 Id. 301; Baker v. McDuffie, 33 Wend. 289 ; Case v. Redfield, 7 Id. 398 ; Van Rensselaer v. Chadwick, 7 Howard P. R. 297; Crocker on Sheriffs, §§ 44, 45 ; arid see also Boomer v. Laine, 10 Wend. 525, which, like the present case, was an action on a bond executed by one Way and by the defendant Laine, as his surety, on the adjournment of a cause pending before a justice of the peace in favor of the plaintiff against Way, conditioned that Way should render himself in execution, or in default thereof, that he or his surety would pay such judgment as should be rendered in the plaintiffs favor. . -
Upon the trial the plaintiff proved the execution of the bond, the rendition of a judgment in favor of the plaintiff Boomer, the issuing of an execution upon it, and a return of non est inventus thereon. The defendant then offered to prove that at the time of the issuing of the execution against Way the defendant in the execution had sufficient property to satisfy it, but the evidence was objected to, and rejected. The case went to the Common Pleas, by certiorari, and from thence by Writ of Error, to the Supreme Court, where it was held, that the evidence was rightly rejected, as' the return of the officer was conclusive upon that" point •
So in the case now before us: the sheriffs return upon the execution was conclusive, and the justice improperly ad-*99Wed evidence at the trial having a tendency to impeach ■r question it. Haughey v. Wilson, 1 Hilton, 259.