#### HARRISON M. WAUGH *v.*JOSEPH BRITTAIN.

*“*Due return” of process, means a proper return, made in proper time. What is a proper return, in form and substance, is a question of law, to be decided by the Court; but whether it was made in proper time, is a question of fact, to be decided by a jury.

This was a soiee eacias, to make absoluto a judgment nisi/ beard before his Honor, Judge Dice, at the Eall Term, 1856, of Surry Superior Court.

The defendant, as sheriff of Burke County, was amersed at Spring Term, 1856, of Surry Superior Court, in the sum of one hundred dollars, *nisi,*for failing to make due return of an execution, which had issued from that Court, in favor of the plaintiff, against one Gaither. The execution was produced, and on it was endorsed, “ Came to hand 25th Oct, 1855.” “No goods, nor chattels, lands, nor tenements, found in Burke County, to satisfy this fi. fa.” Signed by the defendant as sheriff. The clerk of Surry Superior Court was examined, and swore that the execution, above mentioned, was not returned during the week of the Court, to which it was returnable, but on a day thereafter, to wit, on the 7th of March, 1856. The defendant’s counsel contended that there being a proper and sufficient return on the writ, as the allegation in the sci. fa. was the failure to make a due return, the defendant was entitled to the judgment of the Court. But his Honor being of opinion with the plaintiff upon the law and facts of the case, gave judgment according to the sci. fa., from which the defendant appealed.

Mitchell, for the plaintiff.

JBoyden, for the defendant.

Battle, J.

We concur with his Honor in the opinion, “ due return” of process, means a proper return, made in proper time ; and such, we believe, has always been the construction put upon those words, as used in the act of 1777, (see Rev. *471Code, ch. 105, sec. 17.) "Whether, in any particular case, a due return has been made, may involve questions, both of law and fact. Whether the return is a proper one in form and substance, is a question of law, to be decided by the Court, but whether it was made in proper time, is a question of fact, to be decided by the j ury. It is true, that in the case of *Kea*v. Melvin, 3 Jones’ Rep. 243, it was held, that the Supreme Court, from which a *sowe facias*had issued against a defaulting sheriff, and to which the return ought to, have been made, must, itself, decide the facts involved in the issue made by the defendant’s plea; but the decision was put expressly upon the ground of necessity, because the Court had no power confer, red upon it, to have a jury summoned and impanneled. The jury is, by the principles of the common law, which we have adopted, the appropriate tribunal for the trial of disputed facts, and the Court ought never to assume that jurisdiction, unless it is expressly, or by a necessary implication conferred upon it by the Legislature.

Our opinion, then, is that his Honor erred in undertaking to decide a question of fact, whether the process was returned in proper time. Upon that fact, the jury will decide according to the evidence submitted to them. In it may be involved the consideration of the question, not only whether the process was actually returned to the clerk’s office within the time prescribed by law, but whether the sheriff had used all due diligence in carrying it, or sending it by mail, or otherwise, and was prevented from filing it, or having it filed in the office, by such an accident, or necessity, as would excuse him.

The judgment must be reversed, and this opinion will be certified to the Court below, in order that that the cause may be there disposed of according to law.

Pee CubiaM. Judgment reversed.