HARRELL v. MARTIN, PLEASANTS & CO.

HARRELL v. MARTIN, PLEASANTS & CO. 1. Evidence is admissible to show when in fact an execution issued, either by proving that the clerk made a mistake in the teste of the writ, or that it has subsequently been altered. 2. A w’rit of fieri facias does not become a record of the court until it has been returned by the sheriff. Error to the Circuit Court of Madison. This was a motion in the court below, to quash an execution, because, though issued more than three days before the then next succeeding term of the circuit court, it was made returnable to the second term after. Upon the trial of the motion, the clerk proved that he issued the execution on the 23d Nov. 1841, and that it was dated of that date, and not the 23d Sept. 1841, as it now appears, the word Sept, being written over an erasure. The sheriff proved that the previous execution had remained in his hands until the 23d November, 1841, when he returned it to the clerk, and that he stood by him until he issued the execution, to quash which this motion is made. That when he, as sheriff, levied and returned the last execution, it was not altered. He also stated it as his belief, that the execution was issued on the same day that another which he mentioned was quashed, but that was shown to be on2Sth Oct. 1841. The entry on the execution docket of the clerk, showed that the'execution was issued on the 23d Nov. 1841, and he had made a similar memorandum on the previous execution. Two witnesses were introduced, who swore that they were acquainted with the hand writing of the clerk, and that they believed the word ‘‘Sept.” was in the hand writing of the clerk. The defendant moved to exclude the testimony of the clerk and sheriff, which motion the court rejected, and he excepted and overruled the motion to quash the execution. The assignments of error are, 1. In the admission of the testimony. 2. In overruling the motion. Moore, for the plaintiff in error cited 1 Ala.Rep. 104; id. 650, Robinson, contra. [5 B. & C. 149; Peake’s C. 209; 3 Star-kie’s C, 138; 2 Stewart’s R. 492.] [MAJORITY — ORMOND, J.] ORMOND, J. We think it very clear, that the court did not err in receiving testimony to show when the execution in fact issued. If the clerk, by mistake, should teste the writ improperly, or the date should be afterwards altered, the court has the power to correct it. A writ offieri facias does not become a record of the court until it has been returned by the sheriff, and is as much within the control of the court, as the declaration or any other part of the cause, upon a" question of this character. The evidence is very satisfactory as to the time when the execution was in fact issued by the clerk, and there being no error in the judgment of the court, it is therefore affirmed.