The judgment of the cornt was pronounced by
Kin®, J.
The defendant, Kemp, is sought to b‘e rendered liable for the amount of a Writ of fieri facias directed to him, which he failed to return within tlie delay prescribed by law.- He pleaded tlie general issue, and further avers that, immediately aftei thewrit came into his hands, He made a seizure^ and that the property levied upon would Have been sold within the time prescribed by law, had- not the plaintiff ordered the sale to be postponed to a day beyond the return day of the writ; and that he made a- sale of the property seized, which produced $10(1, which sum, he avers, lie paid to-the plaintiff, and returned therwrit.
The only testimony in the recordis the execution itself, w-ith the return tliereon, which were offered in evidence by the plaintiff. From the latter it-appears that, the writ was received by the defendant, on the- 3d November, 1842; tliat, on the 15th of the same month, a slave was seized; that the sale was postponed by order of Thomas Webb, the plaintiff in execution, until the-lii-st Saturday in February, 1843; and tliat, on- the 6th of February, 1843, the slave was sold for $100. The writ was not returned until the 9th of August following. The court below rendered a judgment in favor oftko defendant, from which the plaintiff has appealed.
We tliink tliat the judge did not err. A plaintiff who has authorised the sheriff to protract the execution of a writ beyond the return day, cannot afterwards complain that the latter has failed tomake a return within the delay fixed, nor claim to hold liim liable for the amount of the execution, in consequence of his-failure to make a return within the prescribed delay.
When a sheriff is sought to be rendered liable, under the act of 1826, he may show any circumstance which would legally excuse him for a failure to return, or execute, a fieri facias. No more valid excuse can be offered, than the ex pressinstructions of tlie plaintiff in execution. The complaint, in (he present instance, is not that the sheriff failed to return the writ after it had been exe- . cuted, nor that he refused to execute it; and there is neither allegation nor proof that the plaintiff has suffered damage from the neglect of the sheriff to snake a timely return. Judgment affirmed.