49 N.C. 470 | N.C. | 1857
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. *471 Code, 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 jury. 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 scire 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 conferred 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.
PER CURIAM. Judgment reversed. *472
