Peck v. Whitaker

The opinion of the court was filed Pee Cukiam. It is trne a sheriff out of office cannot amend his return so as to defeat an action brought against him for damages. That rule does not apply to the facts in this case. Here the sheriff is merely the legal plaintiff in the action ; but it is solely for the benefit of the lien creditors entitled to the fund : Tindle’s Appeal, 27 P. F. Smith 201. The money, however, is not to be distributed on the trial of this cause. After the recovery is had, and due notice to all, claiming to share in the fund, a distribution will be made. They are not parties to this suit, and the precise quantum of their shares are not to be determined now. The amendment was properly allowed. The statute of limitations qualifying the effect thereof was not interposed as a plea. We see no error in the record. Judgment affirmed.