#### JAMES E. KEA vs. JAMES MELVIN.

Where upon scii'e facias against a sheriff fór not returning' an execution in this Court, the parties are at issue upon matters of fact, the Court, having no power td empannel a jury, must; of necessity, decide the case upon affidavits.

This was a scire ÉAcias to amerce the sheriff of Bladen county, for failing to return into the office of this Court, at June Term, 1855) a fi. fa. issuing from the same, in the case Of James E. Kea V. Jahiés A-. Robiilsom The deféndaíit pleaded “ Nul tiel record,” and specially “ that the writ of fi-. fa., in the case of Kea v. Robinson, did not come to his hands twenty days before the term of the Court to which the sanie was made returnable;” and, further, he pleaded specially “ that the fi. fa-, in the above case carné to his hands on thé 5th of June, 1855; and that he did levy the samé dn several negro slaves, the property of the defendant in that execution, James A. Robinson; and that he endorsed the said levy on the writ, and returned the same to the next term of the Supreme Court, (the term to which it was returnable,) and that there was not sufficient time for him to sell and make the money from the time of making the said levy until the return day of thej?. fa?

Plaintiff replied generally td these pleas.

The plaintiff moved that the judgment be made absoluté for $100 ; which was opposed by the defendant, on the ground, that two issues of fact, which had been tendered by the defendant and accepted by the plaintiff, were not disposed of, and *244which it was necessary should be tried by a jury, before the Court could render a final judgment on. the case. No proofs were filed by defendant, nor was the day of receiving the execution entered on it.

W. A. Wright, for plaintiff:,

McDugald, for defendant..

Nash, C. J.

The execution set forth in the scire facias, issued from this Court, upon a judgment obtained here. The scire facias is returnable of course- to the Court from which the execution issued', and to which i't was returnable. The defendant pleaded nul hid record, and other pleas to the country, which, in the ordinary course of practice, are to be tried by a jury.. This Court has no power to call a j ury before them ; we are therefore compelled, in a ease where we have jurisdiction of a question which ordinarily requires the action of a jury, to decide the matters of fact ourselves. In such cases, we must resort to affidavits, propfoly to. enlighten us on the facts. The Act under which these proceedings are instituted, authorises a judgment final, against the sheriff', unless he can, at the succeeding, term,, show sufficient cause to the Court.

The- defendant has pleaded that there is no such record as is set forth in the scire facias,, or in other words, nul hid record. The Court adjudges there, is. such a record.

Upon his other two pleas,, which involve matters of fact, he has not sustained them by any evidence. . As- before remarked, he was- at liberty to have- sustained them by affidavits; he has not done so. As the plaintiff replied to- the defendant’s pleas, the bm-dlen of proof lay upon the latter to bring in matter of excuse.

The rule is made absolute, and judgment rendered against the defendant for $100, the penalty for not making a due return upon the execution. .