dissenting: While concurring in much contained in the opinion of the majority of the court in this case, I feel constrained to put on record my dissent from the statement therein appearing that “ the writ, by its terms, was made returnable on a day and to a term of court then past. It was, therefore, returnable on an impossible day and to an impossible term.” There is no question of the fact that there was a clerical error — a lapsus calami in the writ. The question is whether this was sufficiently .serious and of a character so liable to cause mistake or deception as to be fatal.
The plaintiff made his affidavit for attachment before ■Jesus Ma. Tafoya, probate clerk of San Miguel county, on the twenty-first day of September, 1880, as the verification .shows. It is also marked filed on that day. Said clerk forthwith issued the writ of attachment which is dated on said 21st of September, 1880. On the next day the goods of the defendant were attached, the defendant Ilolzman, with two sureties, gave his bond, commonly called a forthcoming bond, which bears date Sept. 22,1880, and binds the obligors to have the attached property forthcoming when and where the court shall direct, etc.
On receiving his goods, on the filing of this bond, the defendant Holzman, also gave a receipt therefor, which is dated on the same 22d of September, 1880. The writ, to the validity of which objection is made, is written in Spanish, and the return day is stated as follows : “ Ante la corte del distrito en y por el condodo de San Miguel, en el proximo termino de Marzo de 1880,” or as translated in the transcript “before the district dourt in and for the county of San Miguel, at the next March term, 1880.” In my opinion, the words “ next March term,” made the time sufficiently plain and distinct for any one of ordinary understanding to comprehend it. The writ being dated in September, 1880, and the goods attached retaken and bond given, all in the same month, there could be no possible mistake as to what term is meant by the “ next March term.” The addition of “ 1880 ” instead of “ 1881,” is evidently a clerical error, not unnatural- or unusual in using the date which the copyist was constantly .writing during that year. No one could be deceived by it, taking the whole substance together. The word which controls and fixes the meaning definitely and beyond mistake is “next.” It was attempted to be shown on the argument, that “ next ” meant “ nearest,” and therefore March, 1880, was as likely to be “ next ” to the date in September, 1880, as March, 1881. But this is too far-fetched and strained a construction to require much argument or illustration to show its fallacy. When we say “ next year,” although we may be speaking in February, we do not mean the year past, but the year to come.- If even on a Monday, we speak of “ next Sunday,” we mean the ensuing Sunday, and not the one just past; although the latter is much the nearer in point of time. No one could possibly mistake the meaning in such cases. And so when in September, 1880, a writ names the “ next March term,” it can have no other signification than the March term ensuing, viz.: that of 1881. A large number of authorities were quoted by the appellant in the endeavor to show that “ the writ was void, because returnable on an impossible clay,” but on examination it will be found that not one of them affects the case in question.
There is no doubt that when a writ is returnable on an impossible "ay, or a day when there is no term, it is void. This is what was held in Holliday v. Cooper, 3 Mo., 285, the writ being returnable on the first Monday of July, 1883, when there was no term till the fourth Monday. The same is the point in Mills v. Bond, as long ago as the sixth year of George I, when the process was returnable out of a term time: 1 Strange, 399.
The point decided in Dame v. Fales, was that oral evidence was not admissible to vary the written date of a writ: 3 N. H., 70.
Other of the cases cited, are simply to the effect that when a writ is returnable to a term not immediately succeeding its issuance and date, it is void. This is the point decided in the following of the authorities cited in the brief, viz.: Bunn v. Thomas de King, 2 Johnson, 190; Burk v. Barnard, 4 Johns., 309; Parsons v. Loyd, 3 Wilson, 341.
The same has also been frequently held in Illinois and other states. See, Calhoun v. Webster, 2 S. C., 221; Hildreth v. Hough, 20 Ill., 331; Elee v. Wait, 28 Ill., 70; Miller v. Handy, 40 Ill., 448; Hochlander v. Hochlander, 73 Ill., 618.
These include all of the cited cases that I have been enabled' to examine. There is no authority quoted which oven tends to show that a term described as is that in the writ in this case, is an “ impossible term,” and none which on the real point in question, which is, that the word ‘•next ” in the writ, fixes the term beyond ambiguity. Were that word not in the writ no doubt it would be fatally faulty, and void under the decisions, but the language being as it is, I hold that it was good, and gave the defendant the legal notice required of the return day. That it gave him actual notice, is evident from the fact that he appeared at the proper time by his counsel.