
    David Epstein v. Erastus Peck, Circuit Judge of Jackson County.
    Capias — Return day — Error in stating.
    Relator sought to compel the respondent by mandamus to quash a writ of capias ad respondend/um on the ground that the return day was more than three months after the teste day; that the first day of the next term of court fell within said three months, which date should have been the return day under 3 How. Stat. § 7295, whieh provides that writs of capias ad respondendum shall be made returnable on the first Tuesday of any month, and also on any day in term, subject to the proviso that said writs shall not be made - returnable beyond three months from their date, unless more than that time intervenes before the next term of court, in whieh case they shall be made returnable on or before the first day of the next term.
    
      John G. Hawley, for relator.
    
    
      Bowen, Douglas <& Whiting, for respondent.
    The respondent returned that the capias was issued March 16, 1896, and, as stated therein was made returnable on the seventh day of July, 1896, that being the -first day of the succeeding term of court; that the first day of the next term of court was April 7, 1896, and that in respondents opinion the writ was intended to be-made returnable on that day.
   A writ of mandamus was denied under Wonderly v. Circuit Judge, 41 Mich. 722, where a capias was made returnable “on the seventh day of October, 1879, that being the first day of the next succeeding term,” when, in fact, the first day of said term was Oct. 6,1879. And in denying the application of the defendant for a mandamus to set aside the writ it was held that the capias showed plainly on its face that if was intended to be returnable • on the- first day of term, which was the only day on which it could be made' returnable. (This was before the 1885 amendment of the statute); that, having such a recital in it the writ furnished the means of its "own correction, and the erroneous mention of a wrong day of the month would not vitiate it; that one or the other day being incorrect it must be held that the intention was to make the writ returnable on the day whieh would be legal.  