The judgment of the corn't was pronounced by

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 ex*371press'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.