The defendant pleaded "Nul tiel record," and specially "that the writ offi. 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 same was made returnable;" and, further, he pleaded specially "that the fi. fa. in the above case came to his hands on the 5th of June, 1855, and that he did levy the same on 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 the fi. fa."
Plaintiff replied generally to these pleas.
The plaintiff moved that the judgment be made absolute 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 *Page 244 which 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. 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 it was returnable. The defendant pleaded nul tiel 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 jury before them; we are therefore compelled, in a case 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, properly 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 tiel 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 burden 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. *Page 245