delivered the opinion of the Court;
Two points are assigned for error in this case, which appear in the bill of exceptions. The first relates to the exclusion of parol evidence to show the admission by defendants, Smiths, of the Bryans being tenants in common in the lands for which they ask them to account for the rents and profits. On this point we have no doubt the Circuit Court decided correctly. It was inadmissible for the plaintiffs to show title to the lands, by parol admissions, while paper title existed ; upon the acknowledged principle that there was higher, better, and more certain testimony resting in record evidence, of their title, which was within their power to produce, the production of which would subject them to no possible inconvenience, if they were tenants in common, of the lands stated in the declaration.
On the second point, of the rejection of the alias fieri facias under which the plaintiffs derived their title by purchase, at the sheriff’s sale, it is admitted that if the strict regular rules of the English and many American authorities, in some of the State courts are to prevail with us, there would, in the rejection of the executions offered in evidence, be no departure from those rules, as adopted by them ; and that alias executions not corresponding in the amount of the costs, with the first or original writ of fieri facias, should be rejected on the ground of variance. In courts where a regular judgment roll is made up, containing the amount of the whole judgment with the costs, there is much reason that this correspondence should be observed ; and the more so as no execution can embrace any subsequent, costs, made beyond the amount for which judgment is given in numero. But our practice has uniformly, in all our courts, been different.
In the first place, the clerk enters the judgment on his records, when rendered ; and costs are awarded without any specification of the amount. He subsequently makes up his costs without any taxation by the court, and inserts them in the writ of fieri facias. Whenever a second or alias writ issues, the costs attendant on the first writ are included with the additional costs in the second, and those of the alias, in like manner, in a pluries, if it issue; hence the alias and pluries cannot correspond with the original writ of fieri facias ; and therefore it would be unjust to require the exact correspondence in those writs, which is exacted in courts which do not allow the subsequent costs, and where the adherence to the judgment roll, in respect to costs, is considered as essential to the regularity of the proceedings, on the execution of the judgment. We presume that it was the discrepancy between the executions in the amount of costs, which induced the Circuit Court to reject the alias writ of fieri facias, and which, on more mature reflection, we presume it would not have considered as a serious objection to its reception in evidence. If the rigid rules to which we have alluded, were adopted in our courts, it would be most manifest that the titles to real estate purchased under execution at sheriff’s sales, might be most seriously affected in numerous cases, if not entirely destroyed. Hence it becomes a question of grave import, whether the present practice, although it may not be entirely free from objection from its looseness, had not better continue to be sanctioned, than to innovate on it, by which such serious consequences might ensue. We think so; and therefore reverse the judgment of the Circuit Court with costs, and remand the cause with directions to the Circuit Court, to award a venire de novo.
Judgment reversed.
Note. Variance: See Slocumb v. Kuykendall, 1 Scam. 187 ; Felt v. Williams, Idem 206 ; Leidig v. Rawson, Idem ; Hall v. Blaisdel et at., Idem ; Peyton et al. v. Tappan, Idem ; Linn v. Buckingham et al., Idem ; Bliss et al. v. Perryman, Idem ; Hollenback v. Williams et al., Idem ; Brooks et al. v. Jacksonville, Idem.