Cole v. Flournoy , 9 Ala. 401 ( 1846 )

ORMOND, J.

We should be strongly inclined to think, that the act of 1814, requiring at least ten days to intervene between the test and return of the warrant, to be directory to the justice of the peace, as no conceivab le injury could accrue, if the process was executed five days' before the time appointed for the trial. It must be the same to him, whether the warrant had slept one day, or twenty, in the hands of the constable, or in the office of the magistrate, before he was notified to attend the trial.

We do not however consider it necessary to' decide this point, because in our opinion, the local law for the government of Chambers county, (Meek’s Sup. 114,) has introduced' a different rule. By that act, justices hold their courts once a month, which is to be agreed on, and settled, and if not so settled is determined by the act.

All process sued out “ within five days” of this stated term, is by law made returnable to the succeeding" term of the court. Now suppose “a suit to be instituted,” in the language of this act, six days before the time of holding the term, it must be executed in time, that is within five days. as required by the act of 1814, and stand for trial at the ensuing term. This is the clear implication of the act, and therefore it must necessarily repeal that portion of the act of 1814, which requires ten days to intervene between the test, and return day of a warrant; being incompatible with it, it must to that extent repeal it.

The warrant in this case, being executed five days before the sitting of the court, was improperly dismissed by the county court, conceding that it could dismiss a warrant for this cause. But we think the provision of the statute, which requires appeal cases to be tried according to the equity and justice of the case, without regarding defects in the warrant, &c. would of itself prevent the appellate court from noticing a defect of this kind, if it were one.

Let the judgment be reversed and the cause remanded.