
    Blacklock and Bower against James Gairdner.
    
      Charleston,
    
    1803. Whcreapiain-tiff has occ3* siontoiodge'a defendant^ ter the return <jay Rny <ií>yof tlie slf-ting oF such court, it may-made returnable to the 2d court, as it would be nugatory in that interval to make it returnable to the first court, after the return day had passed.
    CASE on attachment issued on the 1st of Januaru, 1803, and made returnable to May court, 1803, notwithstanding the January term, 1803, intervened between the teste and v return*
    A motion was made during the January term, 1803, before the presiding Judge, (Grimke,) to quash this writ, . , for the irregularity of the return, being to a second court next after the teste of the writ, instead of the next succeeding court after issuing it, which, it was alleged, was contrary to all common law rules on that subject, as all writs and precepts should be made returnable to the court next after issuing them, otherwise there would be a chasm in the proceedings, by leaving out a link in the chain of continuances, which would vitiate them, or amount to a discontinuance ; which was ordered accordingly.
    And now it was moved to have the order of the circuit court, in January, 1803, rescinded, and the proceedings restored to their original order. In support of this motion it was urged, that the act of 1792 had altered the common law, with respect to the return of writs and processes in our courts of justice, which declares, “ That all writs and processes lodged after the return day of any court, and before the first day of the sitting thereof, shall not be void; but shall be good for the second court.” On the construction of this clause in the act, it was said, that if the clause of the act under consideration, declared that a writ served after the return day of a court, and before the sitting thereof, should not be void, but should be good for the second court, it would not be straining the act too far to say it might (in that interval between the return day and the first day of the court) be made returnable at once ■to the second court. There could be no error in making a process expressly returnable to a day certain, which was good by implication or construction. This,, it was said, would at once be giving the act its true and legal efficacy and operation, without the aid of implication.
    And of this latter opinion were all the Judges, who observed, that this construction of the act would, in future guard' against a failure of justice, between the return day, and the first day of thp sitting of the court afterwards ; and wpuld, at the same time, make the practice more liberal, agreeable to the true intent and meaning of the act of 1792, as it would be a nugatory act to make it returnable to the next court, after the return day was past.
   The order for quashing the proceedings made in the circuit court, was therefore rescinded and set aside, and the writ and proceedings were restored.

All the Judges present.  