
    MARTIN vs. BARNEY.
    1. The return of a sheriff on a capias is the highest and best evidence of its exe- , eution, and cannot be called in question collaterally, nor be impeached or varied by parol proof. Nor will the sheriff be allowed to depose to a state of facts inconsistent with his return.
    
      2, A party injured by the sheriff’s false return on a writ of capias ad responden-dum, has his remedy against the sheriff. Or, if the writ be returned “ executed,” when it in fact was not, and judgment by default goes against tbe defendant on a claim to which he has a good defence, chancery will afford relief.
    Ebkor to tbe Circuit Court of Perry.
    
    Tried before tbe Hon. George Goldtbwaite.
    This was an action of debt on a judgment r eco ver d by Barney against tbe plaintiff in error and one Bell, as partners under tbe firm name of Bell & Martin, in tbe Circuit Court of Perry. Tbe defendant pleaded 1. Nul tiel record; 2. That the writ in tbe case of Barney v. Bell & Martin issued after tbe dissolution of partnership, and notice thereof published in tbe newspapers of tbe county, and that it bad never been served on him; 3. That tbe court bad no jurisdiction to render judgment in tbe case of Barney v. Bell & Martin. Tbe plaintiff demurred to tbe second and third pleas, and bis demurrer was overruled.
    On tbe trial, tbe plaintiff produced a transcript of bis judgment, and rested bis case. Tbis judgment was rendered more tban ten years before tbe commencement of tbe present suit, and no execution was ever issued on it. Tbe defendant tben produced tbe original papers in tbe case of Barney v. Bell & Martin, and showed by tbe sheriff’s endorsement on tbe original writ that it was returned “ executed 18th April, 1838, S. G.'McLaughlin, sheriff.” Tbe defendant tben introduced McLaughlin as a witness, who testified that be was tbe sheriff of Perry county at tbe time tbe writ was issued in tbe case of Barney v. Bell & Martin; that be received it about tbe day on which it issued, and returned it executed gener-erally on tbe 18th April, 1838 ; that bis best recollection was that be executed tbis writ, but did not recollect whether it was on Martin or Bell; that they had been partners as merchants, and that when be bad executed a writ on one partner in a firm be returned it executed generally. To tbis proof tbe plaintiff objected, and tbe court excluded from tbe jury all that related to tbe service and return of tbe writ, to which defendant excepted.
    Tbe defendant also proved that be and Bell bad been partners as merchants, in Hamburg, in Perry county, and that tbe partnership was dissolved on tbe 8th. April, 1837, which was before the issuance of the writ in the case of Barney against them, of which dissolution notice had been given by publication in a newspaper printed’in Marion, Perry county.
    The exclusion of the evidence is now assigned for error.
    JOHN & Moore, for plaintiff in error.
    1.. A sheriff’s return must be certain; if uncertain as to any material fact, it is not good. "Watson on Sheriffs, 7 Law Lib. 49; 46 ib. 282; 1 Tidd’s Practice, 689. All returning officers are ministerial, and must set forth in their returns the acts done by them, so that the court may judge of their legality and sufficiency. . A return that a precept had been legally served, or the duty enjoined by it duly performed, would be clearly insufficient. 12 Pick. 206; Hard. 168. The return in this case is bad, because it does not set out the acts done; it does not aver personal service on the defendants, but simply alleges a legal conclusion.
    2. It cannot be objected, that if the return is false, the party injured has his remedy against the sheriff. If the court determines that this return is legal and sufficient, it cannot be illegal, and therefore cannot be false. It sets out no fact, and can be neither true nor false.
    3. Service of process on one co-partner, after a dissolution of the firm, is not sufficient to authorize the rendition of a judgment against those who are not served. 4 Porter, 181; 7 Ala. 475.
    4. Special matters of defence for want of jurisdiction, either of the subject matter of the suit or of the person, may be specially pleaded to an action on the judgment or record. Biddle v. Wilkins, 1 Peters, 691; 5 Johns. 37; 15 ib. 140.; 5 Wend. 148. If the want of jurisdiction can be pleaded in abatement, then it follows that the facts set out in the plea may be proven.
    5. The case of Cantley. & Co. v. Moody, 7 Porter, 443, as not supported by a single authority from any other court. Its effect is to make a record by presumption.
    I. W. G-arrott, contra.
    
    1. The ruling of the court in the rejection of the evidence was correct. Governor v. Bancroft, 16 Ala. 605; "Watkins v. Gayle, 4 ib. 153; McGeb.ee v. McGehee, 8 ib. 86; Branch Bank at Mobile v. Ford, 13 ib. 431; 3 Smedes & M. 409; 5 ib. 458; 3 Howard, (Miss.) 66. As to the propriety and completeness of tbe sheriff’s return, see Cantley & Co. v. Moody, 7 Porter, 443.
    2. Even if the testimony was admissible, the plaintiff in error was not injured by its exclusion; for it did not tend to prove that the original writ was not served. It amounted, at most, to nothing more than this, that the witness did not recollect whether he served the writ or not. It ought therefore to have been excluded. McKenzie v. McRae, adm’r, 8 Porter, 70.
   LIGON, J".

No objection is here made to the action of the court below in overruling the demurrer, but the sole question presented for our consideration is, did the Circuit Court err in rejecting the testimony of the witness McLaughlin.

We do not think it did, for the purpose of the evidence was to prove the manner in which the writ in the case of Barney v. Bell & Martin had been served, and by this parol proof to contradict or vary the sheriff’s return. It is clear that the return of the sheriff on the writ is, in its nature, both the highest and best evidence of the fact of execution, and that it cannot be called in question collaterally, or be impeached or varied by the parol proof of the sheriff, or any other person. Nor can a sheriff be allowed to depose to a state of facts inconsistent with his return. Price v. Cloud, 6 Ala. 248; Haynes v. Small, 9 Shep. 14; Lawson v. Main, 4 Pike, 184; Baker v. McDuffie, 23 Wend. 289.

If the return is untrue, the party injured has his remedy against the sheriff for a false return. McBee v. The State, 1 Meigs R. 122. Or, if the writ is falsely returned execu-tad, when in fact it never has been served, and the party aggrieved has a good defence to the merits of the action against him, he may go into equity for relief. Crafts v. Dexter, 8 Ala. 767.

There is no error in the record, and the judgment must be affirmed.  