
    Thomas C. Thornton et al vs. John Fitzhugh.
    If mesne process be not executed at least five days before the return day of the writ, and objection thereto be not made in the court below, it cannot be entertained in the high court of errors and appeals ; and it seems that such objection can only be taken in the court below by plea in abatement to the writ.
    If the return term, to which mesne process has been executed, fail, so that no court is held at that term, such term will nevertheless constitute the appearance term of the case, which will stand for trial at the next term in the same way as though the appearance term had been regularly held.
    Under the imparlance law of 1840, the return term of the writ and the return term of the action is that term wherein the writs in the action are all returned served, or at which all the parties have entered an appearance.
    In error from the circuit court of Rankin county; Hon. Morgan L. Fitch, judge, presiding.
    John Fitzhugh sued Thomas C. Thornton and James B. C. Thornton, on a note for one hundred and twenty dollars. The declaration was filed on the 27th of November, 1844; the writ issued on the same day returnable to the first Monday of December, 1844; and was executed on the day of its issuance. The defendants filed the plea of non assumpsit to the December term, 1844. At the June term, 1845, there was a jury and verdict for plaintiff. The bill of exception recites that the writ was returnable to the December term, 1844, which by law commenced on the 2d day of the month; that no judge attending at that term, the court was not opened and there had been no term held until the then June term. The defendants claimed a continuance, the plaintiff insisted the cause was ready for trial, and the court refused to continue the case and ordered a trial, to which the exception was taken.
    Mayes, Clifton and Mayes, for plaintiff in error.
    1. The writ having been executed less than five days before the court, the defendant had until the next term to plead, even if the court had been holden. H. & H. 577.
    2. That the writ issued on the 27th and court sat on the 2d of the following month, this was not five days before the return day, and the statute is explicit that it shall be executed at least five days before the return day. Ibid.
    3. No court being held in December, the June term was the term for pleading. Acts of 1840, p. 132. No steps could have been taken to prepare the case for trial at the December term; no provision of the statute could have been complied with ; in fact there was no December term. Maury v. Commercial Bank of Natchez, 5 S. & M. 41.
    
      William and William G. Thompson, for defendant in error,
    contended that the continuance was properly overruled and the judgment legitimately rendered, and should stand.
   Mr. Justice ThacheR

delivered the opinion of the court.

The writ in this case bears test of the June term, 1844, of the Rankin circuit court, and was made returnable to the December term, 1844. It was executed on the 27th day of November, 1844; and the first Monday of December, the first day of the December term, fell upon the second day of that month. It is here contended that the process was not executed at least five days before the return day thereof. In the first place, this objection was not taken in the court below. In the next place, in that court, the objection should have been made by plea in abatement. How. & Hutch. 576, § 3; Hurst v. Strong, 1 How. 123.

Secondly, at the following term, the defendants below pleaded non assumpsit, and claimed a continuance by virtue of'the act of 1840, ch. 74, regulating the practice of the circuit courts. It appears by the bill of exceptions that the previous term, that of December, was not held on account of the non-attendance of the judge. The court overruled the motion. The objection to the writ not having been made seasonably or in the proper mode, we can look to it to ascertain what was the return term ill view of the act of 1840. In giving an interpretation to that act in the case of Maury & Sessions v. Commercial Bank of Natchez, 5 S. & M. 41, we have said that the return term of the writ and the return term of the action is that term wherein the writs in the action are all returned served, or at which all the parties have entered an appearance. In the present case, the writ was executed upon both the defendants to the December term, which, according to that decision, constituted the December term the return term.

Judgment affirmed.  