
    Webb, Administrator, v. Kemp.
    In proceedings against a sheriff, to render him liabie, under the 7th section of the stat. of 7 April, -182G, for failure to return* a on or before its return day, he may show any cii-
    cdmstaiice whicli will legally excase his failure to return* the‘writ before that time; and Where the writtenreturn on the writ is offered in evidence by the plaintiff, the facts which it recites will be evidence for the defendant*
    Appeal from the District Court of St. Helena, Jonas, J.
    
      Merrick, for' the appellant. Bailies, for the defendant',
    cited 1 Mart. N. S. 243, 5 lb. N. S. 179, 19 La. 4S2, 9' Rob. 4’64', to show that the return made on a fiu fa. by defendant, having been introduced by plaintiff, was evidence for the former of the facts recited in it.
   The judgment of the corn't 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 the'writ 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 record'is 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 to'make 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 excu'se him for a failure to return, or execute, a fieri facias. No more valid excuse can be offered, than the express'instructions 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.  