
    Bosworth vs. Clark.
    
      1. In a claim case, if a claimant except to the sufficiency of the execution, the proper motion on his part is to dismiss the levy, or object to the execution as illegal evidence in his case; and not a motion to quash the execution. The claimant’s only concern therewith is, that such execution shall not be used against the property claimed.
    
      2. Where the plaintiff made a prima facie case to the court for the introduction of the contents of a deed said to be lost, by notice to the claimant to produce the same, and by subpoena duces tecum to the defendant in execution, such efforts to produce the paper are sufficient to uphold the legal discretion of the court on the questions of diligence and the admission of the evidence; and if the claimant offer to introduce other deeds from defendant in execution, and his grantee, with a view to show want of diligence in the plaintiff in not issuing subpoenas duces tecum for them, such deeds will not be restricted to the mere question of diligence, but will be competent evidence in the entire case, the trial being by consent before the judge alone without the intervention of a jury.
    8. Whilst the execution must be put in evidence by the plaintiff in a claim case, yet it constitutes a part of the papers returned to court by the sheriff, and is so far a part of the record as to come up to this court as record and is not required to be embodied in the bill of exceptions.
    Claim. Executions. Practice in the Superior Court. Evidence. Practice in the Supreme Court. Before Judge LIillyer. Pulton Superior Court. September Term, 1878.
    Clark, as the indorser who had paid off an execution against J. T. Lewis, principal, and T. M. Clark, indorser, in favor of Chandler, caused the same to be levied on certain land as belonging to tiie principal. Bosworth claimed. The case was submitted to the court without a jury, by agreement. On the trial, claimant’s counsel moved to quash the fi. fa. on various grounds. The motion was overruled. Plaintiff’s counsel put in evidence a deed from Jones et al. to A. F. Hurt; he then exhibited a subpoena duces iecum served on J. T. Lewis, calling on him to produce a deed from A. F. Hurt to said Lewis for the premises, and the affidavit of Lewis that he was not in possession of the deed, and thought it was lost. Claimant’s counsel objected to this showing, because Lewis was a party, and not subject to the subpoena; the objection was overruled. Plaintiff’s counsel exhibited a notice to produce this deed, served on claimant, and then offered secondary evidence of its contents. Claimant’s counsel objected on the ground that proper diligence to procure the deed had not been used. In support of this idea he offered two deeds subsequent to the deed sought, one from Lewis to Bosworth, and one from Bosworth to Wallace. The court refused to consider them on the question of diligence alone, and held if they were introduced for one purpose they could be used for all purposes, and the onus would be shifted. The court overruled the objection to the secondary evidence, and admitted it. Possession in Hurt for more than seven years before sale to Lewis was shown. Claimant introduced no evidence. The court held the property subject, and claimant excepted.
    The third division of the opinion reports itself,
    T. P. Westmoreland, for plaintiff in error.
    John Collier, for defendant,
    cited on secondary evidence, Code, §§3508, 3509. On motion to dismiss, 7 Qa., 258 ; 59 IK, 781; QIK, 410; 37 IK, 12; Code, §3939.
   Jackson, Justice.

It is not necessary to consider the various objections to the execution in the view we take of the claimant’s motion. Her motion was to quash the fi. fa. The motion should have been to exclude it as evidence when it was tendered as such, or to dismiss the levy. In a claim case, the only concern that the claimant has with the execution is to see that it does not touch his property; that it does not proceed illegally against it. Defendant in execution is not a party,, and he might be willing for the fi. fa. to stand against him,, or to be amended, or an alias to issue at once. lie could move to quash on any legal ground, but not the claimant. His motion ought to be to withhold the fi. fa., or reject it as evidence, or to dismiss the levy. The court was right to refuse the motion to quash the fi. fa. at the instance of the claimant.

Nor do we think that the court erred in permitting the plaintiff in execution to prove the contents of the deed. The prima facie case of its loss was made out when he showed that he had notified the claimant to produce it, and had served the defendant in execution with a subpoena duces tecum to have it in court. This showed diligence on his part to get the deed, and we will not control the judge’s discretion in pronouncing it sufficient to admit the contents of the paper.

When the claimant made a counter showing, or attempted to do so, by producing other deeds which showed that the defendant had sold and conveyed, and his grantee also had sold and conveyed, so that the proper custodian of the deed was not served with a subpoena duces tecum, the presiding judge did not err in ruling that those deeds, thus tendered and exhibited to him — -he trying the case as judge and jury both — could be and should be considered evidence in the case for all purposes.

A motion was made to dismiss the bill of exceptions on the ground that the evidence .was not embodied in the bill of exceptions, the execution which was levied and essential to condemn the property being left out, and coming up in the record only as part thereof. Ye think that the execution is evidence, and must be put in evidence, and such has ever been the practice so far as I remember; but still it is also a paper which the sheriff must return to court with the affidavit and claim bond .(Code, §3736); and therefore it may well be considered a part of the record,in the case, and may come up to this court as part of the record, and need not also appear in the bill of exceptions, although no motion was made for a new trial, but the case comes up solely on exceptions. Ye decline to dismiss this bill of exceptions for this reason, but we affirm the judgment for the reasons previously stated.

Judgment affirmed.  