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tween Midsummer and Michaelmas, which was allowed for the hay-time and harvest. All Sundays also, and some particular festivals, as the days of the purification, ascension, and some others, were included in the same prohibition: which was established by a canon of the church, A. D. 517. and was fortified by an imperial constitution of the younger Theodosius, comprised in the Theodosian code (m) (6).
Afterwards, when our own legal constitution came to be settled, the commencement and duration of our law terms were appointed with an eye to those canonical prohibitions; and it was ordered by the laws of king Edward the Confessor (n), that from advent to the octave of the epiphany, from septuagesima to the octave of Easter, from the ascension to the octave of pentecost, and from three in the afternoon of all Saturdays till Monday morning, the peace of God and of holy church shall be kept throughout all the kingdom. And so extravagant was afterwards the regard that was paid to these holy times, that though the author of the mirror (0) mentions only one vacation of any considerable length, containing the months of August and September, yet Britton is express (p), that in the reign of king Edward the First no secular plea could be held, nor any man sworn on the *evangelists (q), in the times of advent, [*277] lent, pentecost, harvest, and vintage, the days of the great litanies, and all solemn festivals. But he adds, that the bishops did nevertheless grant dispensations (of which many are preserved in Rymer's foedera) (r), that assises and juries might be taken in some of these holy seasons. And soon afterwards a general dispensation was established by statute Westm. 1. 3 Edw. I. c. 51. which declares, that "by the assent of all the prelates, assises of novel disseisin, mort d'ancestor, and darrein presentment, shall be taken in advent, septuagesima, and lent; and that at the special request of the king to the bishops." The portions of time, that were not included within these prohibited seasons, fell naturally into a fourfold division, and, from some festival day that immediately preceded their commencement, were denominated the terms of St. Hilary, of Easter, of the holy Trinity, and of St. Michael: which terms have been since regulated and abbreviated by several acts of parliament; particularly Trinity term by statute 32 Hen. VIII. c. 21, and Michaelmas term by statute 16 Car. I. c. 6, and again by statute 24 Geo. II. c. 48 (7).
There are in each of these terms stated days called days in bank, dies in banco: that is, days of appearance in the court of common bench. They are generally at the distance of about a week from each other, and have reference to some festival of the church (8). On some one of these days in bank all original writ must be made returnable; and therefore they are generally called the returns of that term: whereof every term has more or
(m) Spelman of the terms.
(n) c. 3. de temporibus et diebus pacis. (0) c. 3, 8.
(6) In New-York the terms of the Supreme Court are, the first Mondays of January, May, and July, and the third Monday of October: the first and last are held at Albany; the second in the city of New-York; and the third in Utica. (2 R. S. 196, § 2, &c.)
(7) Michaelmas and Hilary are fixed terms, and invariably begin on the same day every year; but Easter and Trinity are moveable, their commencement being regulated by the
(p) c. 53.
(q) See page 59.
(r) temp. Hen. III. passim.
feast of Easter. See post, 278. note (11). Hilary and Trinity are called issuable terms, being the terms after which the judges go their circuits, for the trial of causes wherein issues have been previously joined.
(8) Easter term has five return days, the rest four. These are called general or common return days, all the others are particular or special return days.
less, said by the mirror (s) to have been originally fixed by king Alfred, but certainly settled as early as the statute of 51 Hen. III. st. 2. But though many of the return days are fixed upon Sundays, yet the court never sits to receive these returns till the Monday after (t): and therefore no proceedings can be held, or judgment can be given, or supposed to be given, on the Sunday (u).
[*278] *The first return in every term is, properly speaking, the first day in that term; as, for instance, the octave of St. Hilary, or the eighth day inclusive after the feast of that saint: which falling on the thirteenth of January, the octave therefore or first day of Hilary term is the twentieth of January. And thereon the court sits to take essoigns, or excuses, for such as do not appear according to the summons of the writ: wherefore this is usually called the essoign day of the term (9). But on every return-day in the term, the person summoned has three days of grace, beyond the day named in the writ, in which to make his appearance; and if he appears on the fourth day inclusive, quarto die post, it is sufficient (10). For our sturdy ancestors held it beneath the condition of a freeman to appear, or to do any other act, at the precise time appointed. The feodal law therefore always allowed three distinct days of citation, before the defendant was adjudged contumacious for not appearing (v) ; preserving in this respect the German custom, of which Tacitus thus speaks (w): "illud ex libertate vitium, quod non simul nec jussi conveniunt ; sed et alter et tertius dies cunctatione coëuntium absumitur." And a similar indulgence prevailed in the Gothic constitution: "illud enim nimiae libertatis indicium, concessa toties impunitas non parendi ; nec enim trinis judicii concessibus poenam perditae causae contumax meruit (x)." Therefore, at the beginning of each term, the court does not usually (y) sit for dispatch of business till the fourth or appearance day, as in Hilary term on the twentythird of January (11); and in Trinity term, by statute 32 Hen. VIII. c. 21. not till the fifth day, the fourth happening on the great popish festival of Corpus Christi (z); which days are therefore called and set down in the almanacks as the first days of the term, and the court also sits till the quarto die post or appearance day of the last return, which is therefore the end, of each of them.
day, falls on the morrow of Corpus Christi day (as it did A. D. 1614, 1698, and 1709, and will again A. D. 1791), Trinity full term then commences, and the courts sit on that day, though in other years it is no juridical day. Yet in 1702, 1713, and 1724, when midsummer-day fell upon what was regularly the last day of the term, the courts did not then sit, but it was regarded like a Sunday, and the term was prolonged to the twenty-fifth of June. (Rot. C. B. Bunb. 176.)
on the 23d of January, and ends on the 12th of February; unless either of those four days falls on a Sunday, and then the term begins or ends on the day following. Easter term begins always on the Wednesday fortnight after Easter Sunday, and ends on the Monday three weeks afterwards. Trinity term begins always on the Friday after Trinity Sunday, and ends on the Wednesday fortnight after it begins. 1 Cromp. Prac. I. Tidd, 8 ed. 101, 2
THE next step for carrying on the suit, after suing out the original, is called the process; being the means of compelling the defendant to appear in court. This is sometimes called original process, being founded upon the original writ; and also to distinguish it from mesne or intermediate process, which issues, pending the suit, upon some collateral interlocutory matter; as to summon juries, witnesses, and the like (a). Mesne process is also sometimes put in contradistinction to final process, or process of execution; and then it signifies all such process as intervenes between the beginning and end of a suit.
But process, as we are now to consider it, is the method taken by the law to compel a compliance with the original writ, of which the primary step is by giving the party notice to obey it. This notice is given upon all real praecipes, and also upon all personal writs for injuries not against the peace, by summons; which is a warning to appear in court at the return of the original writ, given to the defendant by two of the sheriff's messengers called summoners, either in person or left at his house or land (6); in like manner as in the civil law the first process is by personal citation, in jus vocando (c). This warning on the land is given, in real actions, by erecting a white stick or wand on the defendant's grounds (d) (which stick or wand among the northern nations is called the baculus *nunciatorius) (e); and by statute 31 Eliz. c. 3. the notice [*280] must also be proclaimed on some Sunday before the door of the parish church.
If the defendant disobeys this verbal monition, the next process is by writ of attachment or pone, so called from the words of the writ (f), " pone per vadium et salvos plegios, put by gage and safe pledges A. B. the defendant, &c." This is a writ not issuing out of chancery, but out of the court of common pleas, being grounded on the non-appearance of the defendant at the return of the original writ; and thereby the sheriff is commanded to attach him, by taking gage, that is, certain of his goods, which he shall forfeit if he doth not appear (g); or by making him find safe pledges or sureties who shall be amerced in case of his non-appearance (h). This is also the first and immediate process, without any previous summons, upon actions of trespass vi et armis, or for other injuries, which though not forcible are yet trespasses against the peace, as deceit and conspiracy (i); where the violence of the wrong requires a more speedy remedy, and therefore the original writ commands the defendant to be a once attached, without any precedent warning (j) (1).
If, after attachment, the defendant neglects to appear, he not only forfeits this security, but is moreover to be farther compelled by writ of distringas (k), or distress infinite; which is a subsequent process issuing from the court of common pleas, commanding the sheriff to distrain the defendant from time to time, and continually afterwards by taking his goods and the profits of his lands, which are called issues, and which by the common law he forfeits to the king if he doth not appear (1). But now the issues may be sold, if the court shall so direct, in order to defray the reasona[*281] ble costs of the plaintiff (m) (2). In like *manner by the civil law, if the defendant absconds, so that the citation is of no effect, "mittitur adversarius in possessionem bonorum ejus (n).”
And here by the common, as well as the civil law, the process ended in case of injuries without force: the defendant, if he had any substance, being gradually stripped of it all by repeated distresses, till he rendered obedience to the king's writ; and, if he had no substance, the law held him incapable of making satisfaction, and therefore looked upon all further process as nugatory. And besides, upon feodal principles, the person of a feudatory was not liable to be attached for injuries merely civil, lest thereby his lord should be deprived of his personal services. But, in case of injury accompanied with force, the law, to punish the breach of the peace, and prevent its disturbance for the future, provided also a process against the defendant's person in case he neglected to appear upon the former process of attachment, or had no substance whereby to be attached; subjecting his body to imprisonment by the writ of capias ad respondendum (o). But this immunity of the defendant's person, in case of peaceable though fraudulent injuries, producing great contempt of the law in indigent wrongdoers, a capias was also allowed to arrest the person, in actions of account, though no breach of the peace be suggested, by the statutes of Marlbridge, 52 Hen. III. c. 23. and Westm. 2. 13 Edw. I. c. 11. in actions of debt and detinue, by statute 25 Edw. III. c. 17. and in all actions on the case, by statute 19 Hen. VII. c. 9. Before which last statute a practice had been introduced of commencing the suit by bringing an original writ of trespass quare clausum fregit, for breaking the plaintiff's close vi et armis; which by the old common law subjected the defendant's person to be arrested by writ of capias: and then afterwards, by connivance of the court, the plaintiff might proceed to prosecute for any other less forcible injury. This practice (through custom rather than necessity, and for saving some trou[*282] ble and expense, in suing out a special original "adapted to the particular injury) still continues in almost all cases, except in ac
(k) Appendix, No. III. § 2.
(1) Finch, L. 325.
(m) Stat. 10 Geo. III. c. 50.
(2) Now by 51 Geo. III. c. 124. s. 2. continued by 57 Geo. III. c. 101. a distringas can not be issued: but at the foot of the summons or attachment, notice as therein directed, is to be given to defendant to appear, or in default of an appearance, that plaintiff will enter one for him, and proceed thereon as if he had ap peared. If, however, the summons or attachment cannot be personally served on defendant, and it be left for him at his house or place of abode, the court or a judge in vacation may grant leave to sue out a distringas, with a notice thereon as pointed out in the act, and
(n) Ff. 2. 4. 19.
plaintiff may levy 40s., and if defendant still make default in appearing, an appearance may be entered for him, and plaintiff may proceed as usual. These acts have expired, but see ante, 274, n. 4.
These provisions seem to extend to the process by distringas in the exchequer, 5 Taunt. 71. (a); but see 3 Price, 263. 266. 5 Price, 522. 639. They do not extend to persons having privilege of parliament, nor to the process by attachment on a justicies in a county palatine. 5 Taunt. 69.
tions of debt; though now, by virtue of the statutes above cited and others, a capias might be had upon almost every species of complaint.
If therefore the defendant being summoned or attached makes default, and neglects to appear; or if the sheriff returns a nihil, or that the defendant hath nothing whereby he may be summoned, attached, or distrained; the capias now usually issues (p): being a writ commanding the sherifl' to take the body of the defendant if he may be found in his bailiwick or county, and him safely to keep, so that he may have him in court on the day of the return, to answer to the plaintiff of a plea of debt or trespass, fc. as the case may be. This writ, and all others subsequent to the original writ, not issuing out of chancery but from the court into which the original was returnable, and being grounded on what has passed in that court in consequence of the sheriff's return, are called judicial, not original writs; they issue under the private seal of that court, and not under the great seal of England; and are teste'd, not in the king's name, but in that of the chief (or, if there be no chief, of the senior) justice only. And these several writs being grounded on the sheriff's return, must respectively bear date the same day on which the writ immediately preceding was returnable (3).
This is the regular and ordinary method of process. But it is now usual in practice, to sue out the capias in the first instance, upon a supposed return of the sheriff; especially if it be suspected that the defendant, upon notice of the action, will abscond; and afterwards a fictitious original is drawn up, if the party is called upon so to do, with a proper return thereupon, in order to give the proceedings a colour of regularity. When this capias is delivered to the sheriff, he by his under-sheriff grants a warrant to his inferior officers or bailiffs, to execute it on the defendant. And, if the sheriff of Oxfordshire (in which county the injury is supposed to be committed and the action is laid) cannot find the defendant in his jurisdiction, *he returns that he is not found, non est inventus, in [*283] his bailiwick: whereupon another writ issues, called a testatum capias (q), directed to the sheriff of the county where the defendant is supposed to reside, as of Berkshire, reciting the former writ, and that it is testified, testatum est, that the defendant lurks or wanders in his bailiwick, wherefore he is commanded to take him, as in the former capias. But here also, when the action is brought in one county, and the defendant lives in another, it is usual, for saving trouble, time, and expense, to make out a testatum capias at the first; supposing not only an original, but also a former capias, to have been granted, which in fact never was. And this fiction, being beneficial to all parties, is readily acquiesced in and is now become the settled practice; being one among many instances to illustrate that maxim of law, that in fictione juris consistit aequitas.
But where a defendant absconds, and the plaintiff would proceed to an outlawry (4) against him, an original writ must then be sued out regular
(p) Appendix, No. III. ◊ 2.
(3) Or rather on the quarto die post, and even then only where the plaintiff means to proceed to outlawry; in which case there must be fifteen days at least between the teste and the return of each writ, Trye, 60. 2 Wils. 117; but the cursitor will expedite the process. Dyer, 175. Tidd, 8 ed. 103. Unless the plaintiff mean to proceed to outlawry, the capias
may be tested before the original, and even before the cause of action accrued, provided it be actually taken out afterwards. See Tidd, 8 ed. 125. 3 Wils. 454.
(4) In New-York process of outlawry, except on conviction of treason, is abolished. (2 R. S. 553, § 15: 745, § 20.)