
    Hare v. Niblo.
    March, 1833.
    Capias ad Respondendum — Returnable to Term Generally — Effect.—A capias ad respondendum is made returnable to the next term generally, instead of the first day of the term as the statute requires; the writ is executed before the term and returned to the first day; an office judgment is entered at rules; at the ensuing term, defendant moves to quash the writ and all the proceedings on it at rules, on the ground that the writ being returnable to term generally, was naught; and the court overrules the motion; Held, the motion was rightly overruled.
    Debt, in the circuit court of Petersburg, by Niblo against Hare. The writ was made returnable to the next term after its date, generallj-, instead of the first day of the next term, as it ought regularly to have been. But it was executed before the commencement of the term. After the term, Niblo filed his declaration at the rules; whereupon a conditional’’''judgment by default for want of appearance, was entered against Hare by the clerk, which was confirmed at the succeeding rules; so that the case stood among the office judgments at the then next term. But owing to a vacancy in the office of judge of the court, that term was lost, and all the pending causes stood over till the succeeding term; when Hare’s counsel moved the court to quash the writ and all the proceedings had thereon in the office, on the ground that the writ had been made returnable not to the first day of a term of the court, but to the term, generally, and so was irregular. The court overruled the motion. Hare, thereupon, pleaded to the action ; and there was a trial, verdict and judgment for Niblo. And then Hare applied to a judge of this court for a superse-deas ; which was allowed.
    Allison, for the plaintiff in error.
    Formerly, writs in actions in the circuit court, were required to be made returnable to the next court, generally; Rev. Code of 1702, ch. 66, $ 21, Pleasants’s edi. p. 77, and the process might be served at any time during the term to which it was returnable ; Dunbar v. Long’s adm’r, 4 Hen. & Munf. 212. In that case, Roane, J., dissented; and the inconvenience of having no particular return day, for such process, was clearly pointed out in his opinion. To remedy this inconvenience, the legislature provided, that every writ of capias ad respondendum shall be returnable, at the option of the plaintiff, either to the first day of the next succeeding term, or in the clerk’s office to some previous rule day; 1 Rev. Code, ch. 128, | 70, p. 507. The writ in this case, therefore, was clearly naught, and furnished no foundation for any proceedings at rules upon it. The court ought to have quashed the writ and the proceedings upon it in the office; for the statute provides, that the court, in term, shall have control over all proceedings in the office during the preceding vacation, and may correct any mistakes or errors, and for good cause set aside the rules and proceedings, and make such order concerning them as may be just and right; Id. § 77, p. 508. *And if the court shall not be held at any stated term, all pending matters and causes stand over in the same plight to the next term. Id. ch. 69, $ 8, p. 230.
    Wyndham Robertson, for the defendant in error.
    The provision of the statute of 1819, requiring that writs shall be made returnable to the first day of the succeeding term, might defeat a writ made returnable to the term generally, in ease the writ were executed during the term but after the first day (which as the law formerly stood, was perhaps permissible, according to the judgment in Dunbar v. Long’s adm’r) ; but this new provision does not require the abatement of a writ, which, though made returnable to the term generally, has been in fact executed before the term, and returned to the first day of it, as was the case here. The statute does not require, that the writ shall, on its face, be made returnable, bat only that it shall be returnable, to the first day of the term; and if it is in fact executed, and returned the first day, it is enough. Even under the former law, judge Roane thought, that a writ returnable to the term generally, should be intended to be returnable to the first day of the term. But, in truth, this motion to quash the writ for irregularity, was in substance and effect, a plea in abatement of the writ; and, as such a plea could not have been received after office judgment; so neither ought this motion to quash the writ, to have been entertained.
    Allison, in reply. If the writ was irregular, all the proceedings on it in the office were also irregular, for they had no foundation but the writ. To say that the motion to quash, is equivalent to a plea in abatement, and therefore cannot be heard after office judgment, were, in effect, to deny the control of the court over proceedings in the office, in every case in which there has been an office judgment. This would render the provision, which gives the court such control over the proceedings in the office, almost intirely nugatory.
    
      
      Capias ad Respondendum — Returnable to Term Generally — Effect.—In Gas Company v. Wheeling, 7 W. Va. 29, it is said: “The Revised Code of Virginia of 1819 required that a writ of capias ad respondendum should be returnable either to the first day of the next succeeding term, or in the clerk’s office to some previous rule day. 1 R. C. ch. 128, § 70. Under this provision it was held by the court of appeals that a writ returnable generally to the ‘next term’ of a circuit court after its date, not to the first day of the Dext term, was good. Hare v. Niblo, 4 Leigh 359. We submit to the authority of this case, and recognize its application to the case in hand.”
      For this proposition, the principal case is cited in White v. Sydenstricker, 6 W. Va. 49.
    
   PER CURIAM.

The judgment is to be affirmed.  