Findley v. Ritchie , 8 Port. 452 ( 1839 )

COLLIER, C. J.

— By an act passed as early as 1807, (Aik. Dig. sec. 111, p. 278,) it is enacted, that all process “ in any court of the' territory, (except subpoenas for witnesses, which in term time may be made returnable immediately,) shall be issued by the clerk of such court, and shall be returnable to"the first day of-the term, and shall be.executed at least five day&before the return thereof ; and if any person shall take out any. writ 'or- process while such court is sitting; or within five days before the beginning of the term, such writ or process shall be made returnable to the term next after.that thén held', or to be held: within five days as aforesaid, and not .'otherwise :■ and all writs of process, issued, made returnable, or executed in any other manner, or at any other time, than -is herein before directed', may be-abated on the pleia, of the defendant.”

This statute makes abateable, the- writ in the case at bar, if it be returnable at a-term-of the County court, beyond that next to be holder! . If the question were res integra,.we should • not consider it one of .any intrinsic. difficulty, yet it has been so greatly perplexed by the opposing opinions of learned judges,-that we have felt not a little embarrassed in striking out a course satisfactory"' to ourselves.

In Bunn vs. Thomas & King, adm'rs, (2 Johns. R. 190,) a question somewhat mini:.sous was raised. There a writ was issued, bearing teste the twelfth day of May, eighteen hundred and six, and made returnable on the seventeenth day of May nrc:!. It was contended, that as the writ was returnable in I,lay, eighteen hundred and seven, it was absolutely void; and so the court decided. (To the same effect, is 1 Dunlap’s Prac. 117, 140; and Burk vs. Barnard, 4 Johns. R. 3 9.)

But Scott vs. Adams, (12 Wend. R. 218,) a later decision of the same court, than the'esses cited from Johnson, we think in direct conflict with them, and of consequence, overrules them. In that case, a capias was tested on the seventh day of July. eight can hundred and thirty-four, made returnable on the eighth (h^ of July úext; a motion was made to set it aside, on the assumption that more than a term intervened between its teste and return. The court denied the mol ion, and held that the “ eighth day of July next,” should he read “ eighth day of July next after the seventh day of July,'1 the teste of the writ. Thus stands the question, upon the authority of foreign courts, so far as we have had access to them.

Commencing with the decisions of our own State, to which wc have been referred, the case of Wallace vs. Hill, (Ala. Rep. 70,) is first in the order of time. There, the point was not as to Hie validity of prpeess in' the cause, but whether a promissory note, dated the fourth day of December, eighteen hundred and twenty, and payable “ on or before the .twevly-fifih day of December next,” was due in eighteen hundred and twenty, or in December, eighteen hundred and twenty-one. The court say, the most usual tvacl known signification of the terms employed defer the period cf payment to the twenty-fifth day of December, in the yec.r next succeeding the date of the note. This decision is clearly correct, yet we cannot perceive its analogy to the present case. Language must he interpreted according to tlic subject matter in respect to which it is used. It was entirely competent for the parties to have prescribed such time as they could agree on, for the performance of their contract, and there was nothing extrinsic to which the court could refer to ascertain its meaning. Low, it is confessedly true, that the term next, in the connection in which it is-found in the note, must, according to the moat usual and known signification of the terms, mean the twenty-fifth day of the next December, that is, December, eighteen hundred and twenty-one. In the case before us, the writ must be construed in reference to the law which provides for the issuance and return of process. That law, as we have seen, directs that where a writ is issued more than five days before court, it is regularly returnable to the next term, and if it be made returnable co a more distant term, it is abateable on plea by the defendant. Now, as the writ can only be regular, upon the hypothesis that the word next refers to the fourth Monday next after the third day of January, eighteen hundred arid thirty-eight, we should so interpret its meaning; unless in doing so, some rule of construction would be thereby violated. It is a rule in grammar, that “ the antecedent bears relation to what next follows, unless it destroys the meaning of the sentence.” By connecting next, with its antecedent, January, the meaning of the sentence, it is true, is not destroyed, but the process itself is made inoperative, a result which we'think may be avoided by a due regard to the subject matter, without disregarding; any settled principle. • • . .

In Gibson vs. Laughlin, (Ala. Rep. 182,) the writ issued on the second day of September, eighteen hundred and twenty two, and returnable .to the “next Circuit court to be held,” &c. “ on the first Monday after the fourth Monday in September next.” The court say, “At most, the term used, viz. ‘ September next,’ is one of double import.- The return of the writ is susceptible of being rendered sufficiently certain, by a reference to its date and the time of service.”

But in the Bank of Mobile vs. the State, (Ala. Rep. 290,) where a notice was issued on the sixth day- of" March, eighteen hundred and twenty-four, returnable “on the second Monday after the fourth Monday in March next,” the court held, that the notice- was defective, as being returnable to a term of the court beyond the one next succeeding its issuance.

In Brown vs. Simpson, (3 Stewt. Rep. 331,) a capias ad satisfaciendum appeared to - have issued on the 'first ■day of November, eighteen hundred and twenty seven, returnable to the next term of the court,-to be holden on the first Monday in January, eighteen hundred and twenty-seven. . And. the court, by a bare majority, determined that the process was void,- because It was returnable previous to its teste. This case, it may be remarked, is únlik.e the present; the decision did not depend' upon the interpretation of terms, yet it cannot be sustained; and the court should have considered the words “ next term of the court,” as controlling the time expressed for the return of the era sa, and. held it to have been then returnable.

And in Lyon vs. Malone, (4 Porter’s R. 414,) it appeared that a writ of error, sited to this court, expressed on its face no time for its return.. On motion to quash, the court said that the statute prescribing that it shall be returnable to the first day of the next term after its issuance, makes it thus returnable, and overruled the motion.

We have felt it due to ourselves, though the question is one seemingly of but little importance, to review the authorities cited at the argument, that ■ it may be seen that our conclusion is the result'of deliberation. The decisions of our own State, as well as those of others, are contradictory, and some of them, directly the opposite of each other. In such a state of things, we feel licensed to consider the question open to the operation of our own judgments, under the guidance of principle; and following the rules most approved by reason for the interpretation of language, we cannot doubt the legality of the writ, for the reasons already stated. We lay no stress upon the fact, that the judgment of the County court is rendered on a motion to quash, instead of putting the. defendant to his plea in abatement — as in'either form, it would be alike indefensible.

The judgment is reversed, and the case remanded.