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. .