
    NOVEMBER TERM, 1844.
    Silas L. Steen, et al. v. Briggs, Lacoste & Co. use, &c.
    Motions against a sheriff for failing to return executions, are not required to be made at the terms to which the executions are returnable; they may be made at a subsequent term.
    The law gives a sheriff until the middle of the term to which an execution is returnable, to make his return ; but if the term be twelve judicial days, and the return be made on the seventh, it is too late, and the sheriff is liable to the penalties of the statute in such case provided.
    This was a motion, made by Briggs, Lacoste & Co., for the use of the President, Directors & Company of the Farmers and Merchants-Bank of Memphis, Tennessee, against Silas L. Steen, sheriff of Rankin county, and John Lawrence, Elias Steen, John ,W. Webb, and Hardy Dear, Sen’r., his sureties, at the June term, 1842, of the Circuit Court.of Rankin county,- for failing to make due return of a writ of fieri fiadas placed in the hands of said sheriff. Upon the trial of the motion, the plaintiff proved, that a writ of fieri facias', in their favor, against Thomas J. Coffee, William H. Washington, Henry K. Moss, and William H. Shelton, for $8870.60, with interest and costs, was placed in the hands of said sheriff, commanding him, &c. ; which 'writ was returnable to the December term, 1841, of said Court; they, the sheriff’s bond, proved service of notice of the motion, and that the writ of fieri facias was returned one day after the middle of the return term, to wit, on the 29th day of December, 1841. The defendants then read the following indorsement, made on said writ by the sheriff: “ There is no property in my county, so that I can make the money, or any part thereof; ” and proved that the indorsement was on the writ when it was 'returned into the clerk’s office ; they also proved that when said writ issued, neither of the defendants named therein had any property out of which the money, or any part of it, could be made, and that they have had none since. This' being all the evidence adduced on either side, the Court rendered judgment against the sheriff and his sureties, for the $8870.60, mentioned in said writ, with interest, damages and costs. The defendants filed their bill of exceptions, and now bring the case to this Court by writ of error.
    Hughes, for plaintiffs in error.
    1st. We insist that the judgment, in a case like this, could only be rendered at the term to which the execution was returnable. See Acts of 1828, 67, sec. 6, edition of Laws of 1838, page 153.
    2d. By the Act of 1838, edition of Laws of 1838, page 892, the sheriff is given until the middle of the term to make his return. There were two weeks to the term. The middle of the term was Sunday, and the execution was deposited on Monday in the office, with the return of nulla bona. Leigh’s Reports.
   Mr. Justice Thacher

delivered the opinion of the Court.

This case is brought here by writ of error from the Circuit Court of Rankin county.

The defendants in error entered their motion in the Court below against Steen, the sheriff, for failing to return an execution in due time. The execution was issued at the June term, 1841, and returned upon the seventh judicial day of the succeeding December term of the Court of, Rankin county. The motion was made at the June term, 1842, and a judgment given in favor of the motion.

The judgment of the Court below is claimed to be erroneous ; lsf, because the motion was made too late, having been made at a term subsequent to that of the ■ return of the execution ; and 2d, because the execution was returned seasonably.

The law regulating the return of executions was enacted February 15, 1828, by which it was provided, that if any sheriff should fail to return any execution to him directed on the return day thereof, the plaintiff in the execution may recover judgment against such sheriff and his sureties, for the amount of such execution, &c., by motion before the Court to which such execution is returnable ; and by the act of February 16, 1838, the sheriff of the connty of Rankin had “ until the middle of each term of the Circuit Court of said county, to make a return of all executions returnable to said Court; ” and by the act of February 2d, 1838, the- Circuit Court of Rankin county was permitted to continue twelve judicial days, and no longer.

By the phrase in the statute, “ the Court to which such execution is returnable,” it does not seem that the legislature designed to restrict such matters against the sheriff to the term at which the execution, upon which such motion is founded, is returnable. The language of the act does not require such an interpretation. Sucfi motions may be made at a subsequent term. But was the execution returned seasonably in accordance with law ? The law gives the sheriff until the middle of the term to make such returns, which, we conceive, means to the middle of the term, and up to that event. The sheriff, in this case, had to the expiration of the sixth day of the term to make his return, and the return upon the seventh day was too late, and subjected him to the penalties of the statute in such case provided.

The judgment of the Court below is therefore affirmed.  