
    Farmers’ and Merchants Bank vs. D. Johnson et al.
    
    1* The act of 1838 ch. 131, repeals not only so much of the act ofl794,ch. l,sec. 10, as requires that all process except subpoenas for witnesses returnable inslanter, shall be executed at least ten clays previous to the commencement of the next term of the court, but by necessary implication, repeals also so much of said act as directs that process issued within ten days of the commencement of a term, shall be returnable to the term next thereafter.
    2. The word “'shall” in common parlance has a compulsoxy meaning*, yet in law the words “shall” and “may” are often convertible terms: so in the act of 1794, ch. 1, sec. 10. *
    The President and Directors of the Farmers’ and Merchants’ Bank of Memphis, issued a writ in assumpsit on a promissory note against Daniel Johnson and William D. Johnson, on the 12th day of September, 1840. It was made returnable on the 8d Monday in September, that day being the day of the commencement of the September term of the circuit court of Fayette county.
    It was executed upon W. D. Johnson, and returned not found as to D. Johnson. An alias writ issued against D. Johnson on the 16th day of December, 1840, made returnable on the 3d Monday in January next thereafter. This was executed on D. Johnson on the 13th January, 1841.
    The plaintiffs filed their declaration, and defendants pleaded that the said original writ was issued within ten days next before the beginning of the term to which the said original writ was made returnable, to wit: on the 12th day of September, 1840, and returnable to the September term of said court, between which said 12th day of September, 1840, and the beginning of said September term, there are only nine days, when according to law, the said original writ should have been made returnable to the January term, 1841, of said court, and that in this case said original writ was not sufficient to compel the defendants to answer. The plaintiffs filed a demurrer to this plea and the defendants joined in demurrer.
    This demurrer was argued before Judge Totten at the December term, 1841, who overruled the demurrer and quashed the plaintiffs writ.
    The plaintiffs appealed in error from this judgment.
    
      Wheatly & Williams, for the Bank.
    J. C. Humphreys, .for the defendants.
   Turley, J,

delivered the opinion of the court.

This is an action of assumpsit, brought by the plaintiff against the defendants; to.which they plead in abatement, that the process by which the suit was commenced, was issued within ten days before the beginning of the term to which it was returned — to this plea there is a demurrer, which was overruled by the circuit court, and judgment given for the defendants — to reverse which this writ of error is prosecuted. The 10th sec. of the act of 1794, ch. 1, makes all process, except subpoenas for witnesses returnable to the 1st day of the term succeeding the date of their issuance, and requires that they shall be executed at least ten days previous thereto. If the law had stopped here, there would have been a period of time within ten days of a term, during which no process for.the commencement of suits could have been issued, in as much as it could not be served, and could not be made returnable to any other term than the one next approaching, and which might be productive at times of serious mischief — -to remedy which the statute provides, that if any original or mesne process be taken out within ten days before the beginning of any term, such process shall be made returnable to the term next succeeding that which shall commence within ten days after taking out such process, and makes all process made returnable at any other term, or executed at any other time, void upon the plea of the defendant. The act of 1838, ch. 131, provides that all process except subpoenas instanter, made returnable to the circuit courts, shall and maybe executed five days previous to the commencement of the term to which it is returnable, and repeals so much of the act of 1794, ch. 1, as requires the execution ten days previous thereto. Now the question is, does this also repeal that part of the statute which makes process issued within ten days of the term returnable to the next? We think it does by necessary implication. The reason why the act of 1794 made such process returnable to a subsequent term, was that it would otherwise have had no return day, and would have been dead process. Then when a subsequent statute is passed which authorizes such process to be served, why may it not be returned? The evil intended to be remedied by giving a later term for the return, is better effected by shortening the time required for its execution. It is the use of the word shall in the act of 1794, which has in all probability lead into the error upon the subject; the words are “shall be made returnable to the term next succeeding.” Now in common parlance shall has always a compulsory meaning — but in law shall and may are often convertible terms. They are so here: shall means may, and is intended to give the power to make the process returnable to a term different from what it would have been by law — and to which it could not have been returned, but for such grant of power. We therefore reverse the judgment of the circuit court, award a respondeat ouster and remand the case for further proceedings.  