
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1803.
    Blacklock & Bower v. Gairdner.
    Á writ issued after return day, but before the first day of term, may be made returnable either to the ensuing term, or to the term next succeding ; and in either case the service will be good for the latter term'. Act of 1792,1 Faust, 214. Vide 2 Bay, 507, S. C.
    Appeal from the decision oíGkimke, J. in Charleston district, on the following question. The plaintiff’s writ was issued prior to the meeting of the district court in January, but after the time limited for the return of writs for that court, that is to say, within fifteen days before the meeting of the court; and was made returnable to the clerk fifteen days before the meeting of the next succeding court, for May term: and whether the writ so returnable was regular or not, was the question submitted.
    Grimke, J. determined that the writ was irregular and void, and that the same ought to have been made returnable' in the same manner as if it had issued fifteen days before the beginning of January term ; for that the A. A. 1792 extends to cure such detect, and to make the service of such writ good for the next succeding court from the expiration of fifteen days after the service.
    It was argued in behalf of the plaintiff, that the writ was in proper form, and pursuant to the true meaning and sound construction of the act of 1792, which declares, “ That all process lodged for service, and actually served, or copies left at the defendant’s place of abode,- after the time prescribed b y law for the return of process, shall not by reason thereof be void, but shall be good for the second court thereafter, in the same manner as if executed within the time prescribed by law.” That although this act was passed for the special purpose of remedying the particular inconvenience expressed in the act, yet by an equitable and beneficial construction it may well apply to the present case. In the present case the writ was not lodged for service fifteen days prior to the meeting of January court, but after, and therefore not strictly within the intent and meaning of the act; yet if such strictness of construction should be adopted, there would be no remedy for mischiefs, which might arise in cases, where it may be necessary to sue within fifteen days before the beginning of the term, and before the next term begins, In such case it would be improper to make the writ returnable fifteen days before tbe next court, when there are not fifteen days bc* f01.e jjje court at the time when the writ issues : and therefore to avoid such an absurdity, it is necessary to make the writ returnable to the gucceding return day. By the common law writs were returnable-on a court day. Tbe act of 1791 made them returnable, to the clerk thirty days before court; and the act of February, 1799, requires them to be returnable fifteen days before tbe court to which they shall be returnable : which seems to make two returns necessary, one by the sheriff to the clerk, and the other by the clerk to tbe court. But the right return day is that on which the sheriff shall make his certain returns of writs to the clerk, who shall deliver them to the plain, tiff’s attorneys, which returns are required to be made on oath. See act of Feb. 1791,1 Faust, 93, and the act of 1799, 2 Id. 314.
    On the other side it was insisted, that a writ of mesne process could not issue and be made returnable to the second court after the issuing thereof, as a writ of execution may, as it might operate oppressively : since upon arrest, where the defendaut cannot find bail, he must be confined in prison until the return of the writ. 2 Ld. Raym. 775. By the rules of the common law, in the return of writs oí mesne process, a term cannot be made to intervene ; and it was further insisted, that the act of 1792, cannot apply to remedy or relieve against a hardship arising under a subsequent act, as the act of 1799, which requires writs to be returned fifteen days before the sitting of the court.
   Per curiam.

(Bay, Johnson. Trezevant, and Bkevard, Justices; absent, Guimke, J. and Watiics,J.)

The common law,by which writs were reiurnable on a day in term, was altered here by A. A., which made them returnable some days before the meeting of the court, to which the defendant was required to appear. Tbe act of 1792 appears to have been intended to validate the service of such writs as might be lodged in due time for service before the return day, but which might not be served until alter the return day has passed, so as to make the writ and service good for the next succeding court, at which the defendant shall be bound in such case to enter his appearance : nevertheless, it may be well construed to extend to cases like the present, so as to validate writs issued after the time limited for the return of writs for the next court after the issuing of the same ; in order to allow a party entitled to sue, the privilege of suing immediately. Indeed, to decide that he should not do so until the meeting of the court; and that there was any period of time, however short, during which his right to bring his action is suspended, would bo contrary to the first principles of law, and to the principles of the constitution. The act of 1799 alters the act of 1791, and requires that writs shall be made returnable fifteen days before the next court after they issue, instead of thirty. The act of 1792 is certainly as applicable to the one, as to the other. The inconvenience arising under the one act is as proper to be relieved against, as that which arose under the other, and is of the same nature. The alteration of the act of 1791 did not remove the inconvenience, but only lessened it. But independent of this, the act of 1792 ought to have a free and general construction, and not be confined to its supposed relation to the act of 1791, or any preceding act. This act, then, must betaken to have abolished that rule of the common law, which forbids a term to intervene in the return of writs of mesne process. Where the necessity and the justice of the case demands it, a court may be looknd over, as in this case, and the writ made returnable to the next succeeding court. Yet if the writ had been made returnable to the last'return day, though past, we should have deemed it regular, by an equitable construction of the act of 1792 ; lor although the writs should be lodged for service after the return day had elapsed, yet no apparent absurdity and impossibility could be seen in the writ itself, being tested of the last term. The court was therefore of opinion, that either way of making writs returnable in cases similar to the present, will be regular and proper ; and the decision of the district court was reversed.  