Martin v. Barney

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.