
    Harman vs. Childress.
    The act of assembly of 1777, ch. 8, sec. 5, applies to the return of executions, as well as to original writs.
    A return on an execution in these words, “Came to hand 8th November, 1830 — no money made on this writ,” is not such a return as the act of 1777, ch. 8, sec. 5, requires.
    Upon such a return the plaintiff in the execution is entitled to have a judgment nisi, on motion against the sheriff, for the [penalty given by the act.
    A judgment that the plaintiff recover of the defendant according to the provisions of the act of assembly in such case made and provided, the siim of,” áse. is informal and uncertain, and will be set aside and reversed, and the cause remanded tobe proceeded in.
    This was a motion made in the county court of Madison county, by Edwin H. Childress against the plaintiff in error, (who was sheriff of Henderson county) for not duly returning a fieri facias placed in his hands at the suit of said Childress against Samuel Wilson. The writ issued upon a judgment rendered in the county court of Madison; upon which writ the said Harman made the following indorsement and return: “Came to hand 8th November 1830 — no money made on this writ. John T. Harman, sheriff.”
    The motion was for the penalty of one hundred' and twenty-five dollars, given by the act of 1777, ch. 8, sec. 5. Judgment was rendered against the defendant, “that the said Edwin II. Childress recover of the said John T. Harman, sheriff as aforesaid, according to the provisions of the act of assembly in such case made and provided, the sum of one hundred and twenty-five dollars, besides costs,” &c.
    
      Jl. B. Bradford and Huntsman, for the plaintiff in error.
    1. There was a return made on the execution* and the same was returned in .due time, and therefore judgment could not be rightfully entered up. Peck’s Rep. 196, Cunningham vs. Philips, in supreme court, 1825. 4 Hay. 196. ■ It will appear that the act of 1777 gives the penalty on mesne process.
    2. The sheriff lived out of the county in which the judgment was rendered, and from which a fieri facias issued, and therefore not liable to be punished by amercement or penalty, in this way, as the act of 1777 only referred to the county in which the party was sheriff.
    The act of 1774, ch. 1, sec. 7, makes it lawful for the clerk of the county court, at the request of the plaintiff, to issue execution to any county of this state, where the defendant or his goods may be found; and the sheriff is directed to execute and return the same in the same manner as is directed for process issuing from the circuit courts. This is the first and only act, and does not prescribe the same penalty on behalf of the plaintiff as the act of 1777.
    In the act'of 1777, ch. 8, sec. 5, there is a penalty of one hundred and twenty-five dollars given against the sheriff on motion, if he fail to execute all writs and other process legally issued and directed to him within his county, <&c. This relates to mesne process, to notices, subpoenas, and the like, and not to executions and final process to carry into effect the judgment, sentence and decree of courts. This will more fully appear by a careful examination of this act, and other acts providing remedies against the sheriff for failing to make return of executions, &c.
    There must be ten days’ notice given by the act of 1777, ch. 8, sec. 5. In this case no notice has been given; consequently, for this reason the judgment of the court below will have to be reversed.
    
      Read and J. D. Martin, for defendant. in error,
    cited and relied upon the statute of 1777, ch. 8, sec. 5 and 8; also 1803, ch. 18, seel: 1801, ch. 13, section 1: 1829, ch. 50.
   Green, J.

delivered the opinion of the court.

The motion in this case was properly made. The act of 1777, ch. 8, sec. 5, was intended to apply to executions as well as original writs; it says “writ and other process.” This language includes every description of process which by law could come into the hands of the sheriff to he executed.

The return intended is not simply bringing the paper into court, and delivering it into the hands of the clerk. The act says he shall “execute all process,” &c. “and make due return thereof.” “Due return” means the bringing the process into court, with such indorsements on it as the law requires him to make. Whether the in-dorsement be true or false, if it be such an one as the law requires, it is a true return. But it is not a “due return,” if the indorsement be such as is not authorized by law, whether it be true or false. The indorsement on this execution, “no money made,” is not authorized by law. If property could be found, it was the duty of the sheriff to levy the execution, and make the money, and so to indorse the fact. If he could find nothing whereon to levy, that fact should have been indorsed.— But he says he has not made the money, without saying wherefore.

But the judgment of the county court must be reversed, because the judgment nisi, instead of being rendered up in form, merely refers to the act of assembly on which it is founded. The record is, that the plaintiff ‘¿recover against the said John Harman, sheriff, &c. according to the provisions of the act of assembly in such case made and provided,” &c. A judgment must express with certainty and precision, the determination of the court. This is vague and uncertain. A judgment in any other case, that the party recover according to law? would be just as good.

This cause must be remanded to the county court of Madison, there to have a proper judgment nisi rendered, and proceeded on.

Judgment reversed.  