Application for mandamus to compel the respondent to set aside proceedings under a capias as not having been returnable on the first day of term.

The revised statutes of 1838 expressly made a capias returnable the first day of term. Rev. Stat. of 1838, p. 418, § 2.

Under the revision of 1846 it was provided that writs of summons and capias should be in the form heretofore-used in this State, unless the form thereof shall be altered by rule of court. Comp. L., § 5727. The form includes the time of return.

Bule 13 of the circuit court rules provides that all writs except capias may be returnable on the first Tuesday of any month or on any day in term. This exception was made in view of the latter statute.- No other-provision has been made bearing on the subject of the return of a capias, which would change the former practice, and it must be regarded as still in force. This writ, therefore, was bad.

Mandamus granted.