1. It is well settled, that if a sheriff justifies under mesne process after the time appointed for its return, he must either aver its return, or show some legal excuse why it ■was not returned.—See McAden v. Gibson v. 5 Ala. 343, and the cases there cited. The two special pleas in the ease before us, contain no such averment, and the demurrers to them were improperly overruled by the court.
2. The judgment entry shows that the plaintiff demurred to the two pleas of justification, and that the demurrers were overruled; the demurrer also appears upon the record. Under these circumstances, we think it very clear, that we cannot look to the order in which the clerk has recorded the pleadings, and determine that the demurrers were waived, because issues of fact precede the demurrers; but we must presume/" rather that the clerk has inadvertently inverted the order of pleading in the transcript.
3. But it is contended by the counsel for the defendant, that although the court may have erred in upholding these pleas, yet this court should not reverse, as it is not shown that any injury resulted to him. The plaintiff does show injury when he shows *49a verdict for the defendant upon insufficient pleas, and having shown that the court committed an error prima facie prejudicial to him, it was the duty of the defendant to make the record certify to us, that no injury resulted from the error, if such was the “fact. In Marshall v. Betner, we said that if the entire record affirmatively show that the plaintiff never can recover, and the matter which renders a recovery impracticable is obvious and undisputed, the court will not reverse, for in such case, it would do a useless thing. — (17 Ala. 836.) This case however, is not shown to fall within that category.—See also, Davis v. The State, 17 Ala. 415; Seawell v. Henry, 6 Ib. 226.
4. As the case must go back, it becomes our duty briefly to notice some other questions presented by the bill of exceptions, and which will probably arise in the further progress of the cause. We are informed that the plaintiff claimed title under a deed made to him as trustee to secure certain debts due from the maker, and White, who was the maker, was offered as a witness to sustain the deed. In order to render him competent, the plaintiff produced the certificate of his discharge in bankruptcy obtained subsequent to the making of said deed, and also a deed assigning, setting over and releasing all interest he might have in the recovery in this suit, and in all his effects, to the assignee in bankruptcy, for the use of his (White’s) creditors, and the surplus, if any, to go to the use of the assignee in his individual right, but without recourse on White. The first objection raised to this witness is, that he has such interest as he cannot release so as to render him competent. Mr. Greenleaf holds that there is no interest of a disqualifying nature but that may in some manner be annihilated. — 1 Greenl. Ev., § 428, citing Perryman v. Steggal, 4 C. & P. 197; Van Shaack v. Stafford, 12 Pick. 565—see also, lib., § 426. We do not think this witness occupies such position as that he cannot release his interest. If any surplus remains, or any interest accrues to him by reason of the recovery, it would vest in his assignee in bankruptcy, who by the release would be exonerated from all liability to account for it to the witness. No case in our reports goes to the length of holding that White cannot be made competent by a release. It is not the case of a transferror becoming a witness for the trans-ferree to support the transfer, as in the cases of Houston, adm’r, v. Pruitt, 8 Ala. 846; Maury’s Adm’r v. Mason’s Adm’r, 8 *50Por. 211; Powell v. Powell, 10 Ala. 900, and Clifton et al. v. Sharp, use &c., 15 ib. 618. In the cases cited, it was held that the witness could not assign the chose in action and support the assignment by his own testimony, as this would be against the policy of the law, as letting in all the evils of champerty; but in the case before us the interest in the property had already vested by the deed in the trustee, if the grantor had title. This was the sale of a thing in possession, and if a surplus remained in the hands of the trustee, then that surplus vested in the assignee in bankruptcy, and it was certainly competent for the witness to release the assignee from all obligation to pay over the same to him. We do not see how any principle of public policy would be violated, in permitting such an interest to be released. We deem it unnecessary to decide upon the effect of the certificate of discharge, as upon a subsequent trial, the party can procure the transcript of the record, if its production be not waived. If White be discharged from his debts, lie has no legal interest in having property devoted to their payment, if by his release ho can never succeed to the residuum after the debts are paid, so that the argument that he is interested in defeating the creditors of Stiles by applying it to the payment of his own debts, cannot avail the defendant in error.
5. But it is insisted that White, being the defendant in the attachment, was rendered incompetent by the act of 1845, which makes defendants in executions incompetent witnesses upon the trial of the right of property under the statute allowing claims to be put in to property levied upon. In Easly v. Dye, 14 Ala. 164, this court said, (Collies, C. J.,) “ This enactment introduces an arbitrary rule, irrespective of the interest of the witness, but is applicable to a specific case, and cannot be extended by construction to an ordinary action in which the title to. personal property is litigated.” We think the act being in derogation of the common law, and introducing a disqualification as applicable to the statutory remedy designated, we should not only push it beyond the intention of its framers, but should violate the settled policy of the law which restricts such disqualifications, wore we to extend its provisions to the ordinary common law actions or to causes in equity, instituted for the recovery of damages or specific property in which the title may be and usually is put in issue. The cases of Yarbrough v. Moss, 9 *51Ala. 382; Webster v. Smith, 10 ib. 429, and Brumby v. Langdon & Co., ib. 747, do not militate against this view. The reasoning in the case of Scott, Slough & Co. v. Stallsworth, 12 Ala. 25, would seem to lead to a different conclusion, but it occurs to mo that it would amount to judicial legislation to extend the disqualification to all suits when the Legislature has limited it to a particular species of trial.
6. If the attachments were regular on their face and authorised a levy upon and seizure of the defendant’s property, the sheriff is not bound to go beyond them and show bonds and affidavits, or that there was a subsisting debt on which they might properly issue.—Governor v. Gibson, 14 Ala. 327.
Perhaps what wo have said will be sufficient direction for the future conduct of the cause.
Let the judgment be reversed and the cause remanded.