
    Valentine vs. Cooley, et als.
    
    The act of 1794, ch. 1, sec. 10, providing that “all writs and other process, except snbpamasfox witnesses returnable immediately, shall be returned to the first day of the term to which the same shall be returnable,’’ does not embrace within its spirit and meaning writs of Jim facias.
    
    The act of 1803, ch. 18, sec. 1, giving the remedy by motion in certain cases against any sheriff, coroner or other officer who shall fail to return any 'execution in his hands on the second day of the term to which the same;.is returnable, -constitutes the second day the return day of the term; and a sale of land made on the second day of the term is a good and valid sale.
    At the May sessions of the county court of Stewart county, in the year 1825, Nathan Ross, chairman of the county court of said county, recovered a judgment for the sum of four hundred and seventy-two dollars and forty-two cents against Jonathan Cooley and Richard Cooleyadministra-tors of the estate of Wm. M. Cooley, dec’d. The plea of fully administered being found in favor of the administrators, the plaintiff had a judgment for damages, to be levledde bonis testa toris. Jt being suggested that real estate had descended to the heirs of William M. Cooley, deceased, the court ordered a scire facias to issue, which was accordingly done on the 26th day of May, 1826, and made known to the heirs at law of William M. Cooley, deceased. The defendants filed a demurrer to the scire facias, which was overruled, and an execution awarded to the plaintiff an the 3d day of May, 1826, to be levied of the lands and tenements which descended to them as the heirs- at law of William M. Cooley, deceased, and which belonged to him in his lifetime. On the 27th day of May, 1826, an execution issued to the sheriff of Stewart county in the following words, to wit:
    “State of Tennessee, Stewart county. To the sheriff of Stewart county, greeting: You are hereby commanded that of the lands and tenements of Richard Cooley,. Jonathan Cooley, George Cooley, William H. Haggard and Rebecca, his wife, William G. Cooley, Thomas D. Beauchamp and his wife, Ann, Joseph Webster and his wife, Elizabeth, that descended to them as the heirs at law -of William M. Cooley, in your county, you cause to be made the sum of four hundred and seventy-four dollars and forty-two cents, to satisfy the damages which Nathan Ross, chairman of the court of Stewart county, recovered against Richard Cooley and Jonathan Cooley, administrators of William M. Cooley, deceased, before the justices of our court of pleas and quarter sessions, atj their May term, 1825; as also eleven dollars and eighty-six cents, which was adjudged by the court for his costs in that behalf expended; and also the further sum of thirteen dollars and twelve and a half cents, the costs on the scire.facias against the heirs of William M. Cooley, deceased, whereof the said heirs are convicted, as appears to us of record, and have the monies before the justices of our court of pleas and quarter sessions to be held for the county aforesaid, at the court-house in the town of Dover, on the first Monday in August next, ready to render to the said Nathan Ross, chairman as aforesaid, and have you then and there this writ: Witness, William Williams, clerk of our said court, at office, in the town of Dover, on the 1st Monday in May, 1826, and the fiftieth year' of American Independence.
    William Williams, Clerk.”
    Upon this execution was the following endorsement: “Levied on the 10th day of June, 1826, on three hundred and forty-five acres of land lying on Dyer’s creek in Stewart county, the place whereon Wm.M. Cooley resided in his lifetime, and where Mrs. Cooley, the widow, now resides; and after having advertised the land according to law, exposed the above tract of land to public sale at the court-house in the town of Dover, on the 8th day of August, 1826, and sold the same to William Bailey, county trustee, for the use and bem> efit of Stewart county, for the sum of four hundred and ninety-nine dollars and thirty-eight and one-half cents, the principal, interest and costs of the above suit, which satisfies this execution. August 8th, 1826.”
    Thomas Ward, the sheriff of Stewart county, who sold this land, conveyed it to William Bailey, trustee, by deed dated February 8,1827. Bailey, trustee, conveyed it by deed, dated 12th July, 1832, to Christopher C. Clements. Clements turned Richard Cooley out of possession by writ of forcible entry and detainer, and on the 26th day of July, 1826, com veyed .the land to Solomon K. Valentine, and put him in . „ . of the premises.
    The land levied on was part of a six hundred and forty acre tract granted by the Statejof North Carolina, on the 26th day of November, 1789, to Richard Fenner, assignee of Joshua English. The grantee conveyed the whole tract to Robert Fenner, and Robert Fenner, on the 1st day of August, 1812, conveyed the premises in dispute td William M-Cooley, the ancestor of the plaintiffs below_and of the defendants'fin this court.
    On the 21st of June, 1836, an action of ejectment was instituted by Cooley’s heirs against Yalentine, in the circuit court of Stewart count}. The cause was transferred to the Montgomery circuit court by affidavit.
    At May term, 1839, it was tried before judge Martin, who charged the jury “that when a sheriff, by virtue of an execution in his hands, levies upon land, and the land is not sold on or before the return day of the writ, the sheriff could not, after the return day, sell the land without a venditioni exponas; and that if the sheriff, by virtue of the levy, sold the land on the Tuesday after the first day of the term to which the writ is returnable, the sale was void and communicated no title to the purchaser.’’
    A verdict was rendered for the plaintiffs on the plea of not guilty. The defendant moved for a new trial, which motion was overruled, judgment rendered, and thereupon he appealed in error to this court.
    
      Cooke, for the plaintiff in error,
    cited Cro. Eliz. 174: 2 Show. Rep. 485: 12 Mod. Rep. 5: 16 John. Rep. 567: 8 Mod. Rep. 225: Cro. Eliz. 181: 2 Ld. Ray. 775: Watson on Jud. and Ex. 189, 488: 2 Bur. 1188: Pettiford vs. Sanders, 1 Hay. 399: 16 John. Rep. —: 13 John. Rep. —: 1 Salk. 272: 8 John. 361.
    
      Meigs, for the defendants,
    cited Prescott vs. Wright, 6 Mass. 20: 4 Hawk. 279: Overton vs. Perkins, 10 Yerger: 4 Mass. 402: 4 Hen. and Mun. 212: 2 Bur. 812: 4 J. Rep. 450.
   Turley. J.

delivered the opinion of the court.

The only question presented for the consideration of the court in this case, is, whether a sale of land under execution, made by a sheriff on the second day of the term of the court to which the execution is returnable, is void. This court, in the case of Overton vs. Perkins, 10 Yerger, held that a levy of an execution upon land vested no right thereto in the sheriff, and that if he sold after the return day of the execution without a venditioni exponas, the sale was made without authority, and was consequently void.

Then, to see whether the principle of this decision applies to the present case, it becomes necessary to ascertain at what period of time executions from our courts are returnable; If an execution be made returnable to a term of the court, and no particular day be specified when it is to be returned, either in the process itself or by the law, it is returnable to the term at any day thereof, because, by fiction of law, á term is but one day. Then the question is, is there a particular day specified in the process? If there is not, is there oñe by the law? There is none in the process: the order is to have the monies before the justices of the court of pleas and quarter sessions, at a court t® be held for the county of Stewart, at the court-house in the town of Dover, on the first Monday in August. This order makes the process returna* hie to the term in general, and not to any particular day thereof. Is there a particular day prescribed by law? It is contended that there is: 1st. By the act of 1794, ch. 1, sec. 10; and 2d. By the act of 1803, ch. 18, sec. 1. The act of 1794 provides that “all writs and other process, except subpoenas for witnesses, returnable immediately, shall be returned to the first day of the term to which the same shall be returnable, and shall be executed at least ten days before the begin* niñg of such term; and if any original or mesne process shall be taken out within ten days before the beginning of any term, such process shall be made returnable to the term next succeeding that which shall commence within ten days after taking out such process, and not otherwise; and all process made'returnable at any other term, or executed at any other time or in any other manner than by this act directed, shall - be adjudged void upon the plea of the defendant.”

This statute is loosely worded, but we think upon a close investigation it will be obvious that it was intended to apply to leading process, and not to final. It provides that all process shall be returnable to the first day of the term, and shall be executed at least ten days before. W'hat is an execution of process? It is the performance of its mandates. Of a capias ad satisfaciendum, it is to arrest the body; of & fieri fa-cias, it is to make the monies. Now to say that a fieri fa-cias shall be executed ten days before court, would make it the duty of the sheriff to collect all monies within that time, and would make it illegal for him either to levy or sell thereafter, a thing that no one has ever thought of. Furthermore, it provides that if any original or mesne process be taken out within ten days before the term such process shall be returnable to the next succeeding term, and that all process made returnable at any other term, or executed in any other manner, shall be held void upon plea, &c. Now a fieri facias is not embraced in the words original or mense process, though it is in the words “all process.” What, then, shall be done with a fieri facias issued within ten days of the commencement of a term. It .cannot be returnable to the succeeding term, because it is not so provided by the statute, and if the words “all process made returnable at any other term,” prevents it being returned to the first term after issued, tlien it is returnable no where, and the consequence is tííat a fieri facias cannot be sued out within ten days of a term, a principle which might be productive of much mischief. But furthermore, the statute provides that the process served in any other manner than therein prescribed shall be void upon plea. Now what doe's this mean but that the defendant must plead the matter in abatement if he wishes to take advantage of it, and that, if he enters his appearance and pleads in bar, the defect is cured? To talk about avoiding a fieri facias by plea, would be something new in the law.

We therefore think that the statute of 1794, ch. !,sec. 10, does not embrace a fieri facias within its spirit and meaning, though it does within its words. The act of 1803 provides that if any sheriff, coroner or other officer of this State shall fail or refuse to make return of any execution that may come to his hands, issued from the clerk of the county or circuit where such sheriff, coroner or other officer resides, on or before the second day of the term to which said execution is made returnable, judgment may be rendered against him and his securities, on motion, for the money and costs mentioned in such execution. This statute makes it the duty of the officer to return fiis executions to the second day of the term, and inflicts a heavy punishment upon him if he neglects to do so. To say that executions are. not returnable on the second day of the term would be to violate, as we think, the spirit and meaning of this act. We therefore think that executions are returnable to the second day of the term, and that no action can be had under them after that time; but they are in full force during the day upon which they are returnable, and a sale made on that day is as good and valid as if it had been made at any period of time before. Then the circuit judge erred in determining that the sheriff’s sale, under and by virtue of which the plaintiff’s claimed the premises in dispute, was void. The judgment will therefore be reversed, and the cause remanded for a new trial..  