1. If the execution at the suit of McLester against the defendant should have been rejected because it varied from the judgment, it may well be questioned whether its admission prejudiced the defence. The judgment and execution in favor of Hogan, were sufficient to sustain the sale and sheriff’s deed to the plaintiffs. But be this as it may, the variance did not make the execution an absolute nullity. In Cawthorn v. Knight, 11 Ala. R. 579, it was held, that courts, in virtue of their power over process issued by them, or their officers, without the aid of legislation may amend an execution by striking therefrom the name of a person who is improperly joined as a defendant with several others, without impairing its validity as to those against whom it should have issued. . A misnomer on a ccr. sa. has been amended after it has been executed. 4 Taunt. R. 322; Barnes’ Notes, 10. And an amendment has been allowed, so as to make the amount agree with the judgment, where it is variant. 1 Chit R. 349. So an execution tested after the plaintiff’s death, has been amended to make it conform to the truth of the case. 6 T. Rep. 368, 450; 1 Cow. Rep. 33. In the case cited from 11 Ala. Rep. ut supra, we say it is difficult to prescribe limits to this salutary power possessed by the courts, of permitting amendments in their process, whether mesne or final. It was then, clearly competent for the circuit court to have directed the execution in favor ofMcLester, to have been so amended (if necessary,) as to conform to the judgment upon which it was founded j and it should not have treated it as a nullity — furnishing no authority for the levy and sale.
2. Was not the recital in the execution in favor of Hogan, that the judgment in that case had been affirmed by the sut preme court, prima facie evidence of the fact? If, however, other evidence of the fact was necessary, the certificate of the clerk of this court is altogether sufficient. This is an official paper, which he is required by statute to make as a di? *285rection to the primary court in its further proceedings. If there was an issue involving the identity or verity of the record, perhaps an exemplification of the transcript from the appellate court might have been required ; but in the posture of the case at bar, no such requisition could be made. See 3 Stew. Rep. 54.
3. We think the sheriff, Poe, was an interested witness for the plaintiffs, and his testimony should have been excluded. Although the contract between himself and Abernathy was by parol, or even verbal, yet prima facie, it imposed on him the duty of reconveying the house and lot, and refunding the money, or of conveying his interest in the lands in question to Abernathy. This proposition seems to us too plain to require illustration, and is perhaps best proved by it's mere statement. If this be so, the witness will be bound to return to his vendee what he has received from him, or be •otherwise chargeable upon his contract, and lose all interest in the lands if the plaintiffs are unsuccessful; but if the plaintiffs recover, then he will retain the house and lot, and money, and Abernathy will take his interest in the lands. Thus we see, if the party calling the witnesss, ucceeds, the witness will hold property and money to a considerable amount, but if the opposite result takes place, he will lose all without the prospect of re-imbursement. Here is not the case of an equilibrium of interest, but a clear preponderance in favor of the party who is seeking the benefit of the testimony.
4. The refusal of the court to permit the sheriff to amend his returns to the fi. fa's, was not the decision of a point arising upon, and pertinent to the trial; but was an independent ■and collateral matter. The amendment was asked by the defendant that the proceedings under the executions might be truly shown. This motion should have been made before the trial was entered upon, (though perhaps it might be competent to give leave to amend at any time,) and if improperly denied, it could be enforced by some direct proceeding ; but for the reasons stated, it cannot be assigned for error in the present case. For the error in the admission of Poe as a witness, the judgment of the circuit court is reversed, and the cause remanded.