
    Thomas B. Winston et al. vs. Thomas P. Miller et al.
    Wliere service of the writ is acknowledged by the defendant, and a judgment by default final is taken, in which it is recited that there was proof of the acknowledgment of the service, it will be sufficient to sustain the judgment.
    
      A writ issued on the 6th of October, 1847, bat bore teste of the April term, 1847, of the circuit court, and was returnable in the body of the writ, on the 2d Monday after the 4th Monday in September next; held, that the^time of the return referred to the date of the teste, and not of the issuance; and the writ was properly returnable to the October term, 1847, of the court.
    It is no objection to a judgment by default, that it was rendered on the third day of the appearance or imparlance term; if rendered before the time for pleading had expired, the application to have the judgment set aside should have been made in the court below.
    In this country, there is no such thing as a compulsory nonsuit, if the party insists that a jury shall pass upon his case; but what by the English practice would he good ground to compel a party to take a nonsuit, would in our law, where the parties have entered on a trial, be good reason for a verdict against him.
    Where a suit is commenced upon a note, before the expiration of the third day of grace, it is prematurely brought, and the action cannot be maintained ; the defect goes to the right of action, and is therefore not cured by a judgment by default.
    In error from the circuit court of Lowndes county; Hon. Francis M. Rogers, judge.
    On the 6th of October, 1847, Thos. P. Miller and others sued out a writ in assumpsit against Thomas B. Winston and Green Hill; returnable to a “ circuit court to be holden for the county aforesaid, at the court-house in the town of Columbus, on the second Monday after the fourth Monday of September next.” At the foot of the writ it was tested, “ Witness the Hon. Francis M. Rogers, &c., the second Monday after the fourth Monday of March, 1847, and the 71st year of American Independence; issued .the 6th day of October, 1847.” It was indorsed, “ This is an action of assumpsit on a promissory note of .defendant to plaintiffs for $3365-24, payable one day after, date, and dated the fourth day of October, 1847.”
    “We, Thos. B. Winston and Green Hill, do hereby acknowledge due and legal service of the within writ, and waive the necessity of being served by the sheriff with a copy of the same. Oct. 6, 1847.
    Thos. B. Winston,
    “Witness, Green Hill.”
    W. McCarthy.” '
    
      The declaration was filed on the 11th of October, 1847, and on the 15th this judgment was rendered, —■ “ This day came the partiesiby their attorneys, and proof of acknowledgment of service of writ being made, and the defendant being solemnly called,” &c. &c.; judgment final being taken.
    The defendants sued out this writ of error.
    
      Evans and Topp, for plaintiffs in error,
    Cited Forniquet v. West Feliciana Railroad Co. 6 How. 121: 3 Phil. Ev.'(Cow. & Hill’s Notes,) 1261, n. 876, and authorities cited; lb. 1263, n. 877; 8 Porter, 454; Bank of Mobile v. State, 1 Ala. Rep. 290; Bell v. Austin, 13 Pick. 92; Laws of 1840, p. 132, ch. 74; Posey v. Branch, 2 McMullin, 338; Brown v. McKee, 1 J. J. Marsh. 473.
    
      Harris and Harrison, for defendants in error,
    Cited 2 How. 930; 4 S. & M. 592; 4 How. 426; H. & H. 591, sec. 11; 1 Greenl. Ev. § 19; 3 Gfeenl. R. 290; 3 Miss. R. 237; 1 T. R. 141; Hurst v. Strong, 1 How. 125; Harrison v. The Agricultural Bank, 2 S. & M. 311; 19 Wend. 99; Nabors v. Nabors, 2 Port. 168; Jordan v. Bell, 8 lb. 53; H. & H. 576, sec. 3; Findley v. Ritchie, 8 Port. 452 - 455 ; Scott v. Adams, 12 Wend. 218; Posey v. Branch, 2 McMullin, R. 338; Gibson v. Laughlin, 1 Minor,'Ala. R. 182; 2 S. & M. 311.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a judgment by default, in the circuit court of Lowndes county; but numerous grounds are now taken for the reversal of the judgment.

The 'service of the writ was acknowledged, and it is now insisted, that there was not sufficient evidence of the service, to authorize the rendition of the judgment. The entry of the judgment itself recites that there was proof of the acknowledgment of the service. This recital of a jurisdictional fact in the judgment, is prima facie sufficient. Saffarans v. Terry, decided at this term of the court. In the cases heretofore determined, it did not appear from the judgment, that there had been proof of the service. Harvie v. Bostich, 1 How. 106; Bozman v. Brower, 6 How. 43.

The next objection is to the writ. It was issued on the 6th of October, 1S47, and was made returnable on the second Monday-after the fourth Monday of September next. It is contended, that this "postponed the return day till October, 1848, and did not justify the judgment in October, 1847. The writ bore teste on the second Monday after the fourth Monday in March, 1847, in obedience to the law which requires writs “ to be tested in the name of the presiding judge, and to bear teste on the first day of the term next preceding that to which the same may be made returnable.” The clerk is also directed to mark the day of issuance. Hutch. Code, 835. The language in the body of the writ refers to the teste and in contemplation of law the writ relates to the first day of the preceding term. This writ was then properly returnable to the October term, 1847, and any other construction would render it inoperative. But still the doctrine of relation does not preclude an inquiry into the true date of the issuance, when necessary'for the ends of justice. Murfree v. Carmack, 5 Yerg. 270. Thus if .the writ be issued within five days of the commencement of the next term of the court, it must be returned to the succeeding term. It may be requisite, too, to show that the writ issued before the cause of action accrued. In these, and perhaps in other instances, the true date becomes important. We shall say more in conclusion upon this latter point.

The next objection is, that the judgment by default was taken on the third day of the term. We can see no error in this sufficient to reverse. If it were taken before the time allowed for pleading had expired, the court should afterwards have set it aside, if the defendants had applied for the purpose, and had asked leave to plead. As there was no such application, the judgment will not be reversed on that ground.

The remaining objection is, that the writ was issued before the days of grace upon the note had expired, and that consequently the suit was prematurely brought. This objection is fatal, either upon a plea in abatement, upon demurrer, or upon a, motion for nonsuit, in the English law. 1 Chit. PI. 453; Comyn, Dig. Abatement,'G., C. In this country there is no such thing as a compulsory nonsuit, if the party insists that, a jury shall pass upon his case. But what by the English practice would be good ground to compel a. party to take a nonsuit, would in our law be good reason for a verdict against him; that is, where the parties have entered upon the trial. It is insisted, however, that our statute in regard to amendments, cures this defect after a judgment by default. Its words are, “ No judgment after verdict, or by nil dicit, shall be reversed for any defect in the writ, or for any defect whatsoever, in the declara-ration or pleading, either of form or of substance, which might have been taken advantage of by a demurrer.” Hutch. Code, 847. These terms are very comprehensive, and cure almost every conceivable defect in the proceedings. But we do not think they embrace a case in which the writ and declaration show, that, at the time of .the commencement of the suit, the cause of action had not accrued. That is a defect which rises above the writ and declaration, and is not inherent in them. It shows tbe party had no right to sue out either, and the utmost perfection of their form could not aid the total absence of cause of action.

We held this defect to be fatal at the last term of the court, in Wiggle et al. v. Thomason, 11 S. & M. 452, and farther investigation has more thoroughly convinced us the decision was right.

Judgment reversed and cause remanded.  