
    Shelton v. Merrill, Fitch & Allen.
    
      Motion against Sheriff for Failure to Return Execution,
    1. Return day of execution, under general law, and special statute in Mobile, Under the general statutes of the State, the ’return term of an execution is the term next after its date, except when it is issued less than fifteen days before the commencement oí that term (Code, §3191), and the sheriff is required to make return o,f the writ three days before the first day of the term; but, under the special statute regulating the practice in the Circuit Court of Mobile, approved February 28th, 1870, which is still of foi-ce in this particular, an exe. cution is returnable on the first Monday in the month next after the expiration of five months from the day it is issued.
    Appeal from the Circuit Court of Mobile.
    Tried before the Hon. H. T. Toulmin.
    E. S. Darg-an, for the appellants.
    John T. Taylor, and C. H. Lindsay, contra.
    
   MANNING, J.

This was a motion in the Circuit Court of Mobile, on behalf of appellees, against Shelton, sheriff of that county, and his sureties, for his failure to return a writ of execution upon a judgment of said court in plaintiffs’ favor. They obtained a judgment in this proceeding, for the statutory penalty of twenty-per cent, of the amount of the execution. This writ was issued and delivered to him on the 11th of April, 1878; and in the body of it he was commanded to make return of it, and of the execution of it, “ according to law, to-wit, on the first Monday of October, 1878.” _

_ The judgment on the motion was rendered in June in that year, during a term of the court which began on the 29th day of the same month (April) in which the writ was issued, and only eighteen days afterwards. The term was made to commence at that time, by a recent act of the legislature, which was carried into the Code of 1876-7; the terms of the court previously beginning on the first Monday in March, and the third Monday in November, in each year, according to “an act to regulate the practice in the Circuit Court of Mobile county,” approved February 28th, 1870.

The judgment appealed from was founded on the following sections, numbered 3190 (2852), and 3191 (2853), in the Code of 1876-7. The sheriff “ must execute the writ with diligence, and, if practicable,- perform the mandate thereof, and make return of - his acts to the clerk, three days before the first day of the return term of the writ.” “ The return term of the writ is the term next after its date, unless issued less than fifteen days before court; in which case, it is the term next thereafter.”

These provisions of law have been on our statute-books very many years. They are found, in the exact form quoted, in the Codes of 1852 and 1867; and the continuance of them in the Code of 1876-7 does not give to them any greatér effect, or more extended operation, than, they had prior to and at the time of its adoption. Then, and before, these sections, or the portions of them affecting this case, had been limited and superseded, so far as the Circuit Court of the county of Mobile was concerned, by the second section of the statute above mentioned, of February 28th, 1870; which enacted in respect of that court, that all executions and final process shall be made returnable on the first Monday of the month, whether in term time or not, next after the expiration of five months from the date of the issuance thereof.”

The writ of- execution, for the failure to return which this judgment was obtained, was issued in accordance with that provision, and made returnable the first Monday in the month next after the expiration of five months from the day it was issued. The precept of the writ — the command to make the money — had not lost its force, nor had the time lapsed which was allowed to the sheriff within which he was to perform this service. The part of the local statute not inconsistent with the subsequent enactment changing the time of holding the Circuit Court of Mobile was not thereby repealed. — Code, § 10. The Circuit Court erred in supposing that it was; and its judgment on this motion of appellees must be reversed.

Let the cause be remanded, that the motion may be overruled, or dismissed, in the Circuit Court.  