Potter v. White — 3 Del. 329

Majority

p. 329

BENJAMIN POTTER vs. GEORGE W. WHITE.

Headnote

The court refused to quash a writ issued on the morning' of the commencement of the term, before the court met, returnable to that term, and tested as of the last day of the term preceding.

A capias ad respondendum in trespass on the case, &c., at the suit of the plaintiff against the defendant, was issued on Monday, the 26th bf April, 1841, the first day of the present term, a few hours before pie opening of the court, and placed in the hands of the sheriff of Kent county. The writ was made returnable the same day; the first pay of the term being the general return day of all process, although py the sixth rule of the Superior Court, the sheriff is not required to Inake an actual return of original process, until the fourth day of the lerm. The writ was tested as of the 30th of October, 1840, the last lay of the previous term, in the name of Richard H. Bayard, then Ihief justice, who resigned his commission in vacation. The commission .of the present chief justice was read in open court, on the Irst day of the present term, immediately after the court was opened. l>y virtue of the said capias ad respondendum, the sheriff arrested lie defendant, on the 26th of April, 1841, after the court was opened In that day, and returned “cepi corpus” to the writ, and detained lie defendant in custody.

■ On the morning of the next day, Mr. John M. Clayton, of counsel ■>r the defendant, moved the court to set aside the writ for irregu-Brity, 1st. Because it ought to have been made returnable the first .y of the next term, namely, the fourth Monday of October, 1841. '. Because it ought to have been tested of the present term, in the ime of the present, and not of the late chief justice.

Pie argued, that as the law does not regard fractions of a day,

p. 330

and as the present term commenced on Monday, the 20th of April, the whole of .that day must be considered as the first day of the term, and the last vacation as ending at twelve o’clock on Sunday night: that the writ therefore was issued in term time, and by the act of assembly (Digest 104, sec. 5,) should have been tested in the name of the present chief justice, and made returnable to the next term: that the writ being irregular and defective in these respects, it ought to be set aside and the defendant discharged.

Mr. Hufington, of counsel for the plaintiff,

insisted, in opposition to the motion, that the issuing of the writ and the arrest under it, were sustained by the uniform practice existing since the first organization of the courts of this State: that the term does not commence until the court is opened on the day prescribed by law, as the first day of the term; and until the court is so opened, the vacation continues: that all writs issued in vacation are supposed, in contempla-] tion of law, to be issued in the preceding term, and therefore bear! teste as of the last day of that term, in the name of the chief justice! for the time being, as directed in the fifth section of the act in Dig.| 104, and are made returnable to the next court after the date, whicf is the teste-day: that independently of this, the pi’esent writ couk not have been tested in the name of the present chief justice, because the prothonotary had no official knowledge or notice of his appointment, until his commission was read in open court, the first day oj the present term: that although, as a general principle, the law doe] not regard fractions of a day, yet fictions of law never were intend! ed to defeat rights; and therefore courts will always inquire as U the real time of doing an act, wherever the purposes of justice rel quire it.

By the Court:

The issuing and service of the writ are q conformity with the constant practice of the courts in this State The term does not begin until the opening of the court on the da] appointed by law, for the commencement and holding of the courj and until then, the vacation does not terminate. Jf writ may sued out in term time or vacation, but must bear teste on some dal in term, not being Sunday. If tested in vacation, it seems the wr| is void, although the sheriff is justifiable in serving it. If sued out vacation, it must be tested as of the previous term, and by our pral tice, is tested as of the last day of the previous term. The day meJ tioned in the teste-clause is the date of the writ, and not the day e|

p. 331

pressed in the memorandum of the prothonotary at the foot of the writ, showing the actual time of his issuing and signing it. Such memorandum is no part of the writ; for the court will not set the writ aside for a mistake in the memorandum, if the teste be right. Therefore, when the act of assembly referred to in the argument (Dig. 104, sec. 5,) declares, that every writ “shall bear teste in the name of the chief justice for the time being,” and be “made returnable to the next court after the date of such writ,” it means the date contained in the teste-clause, and not in the memorandum of the pro-thonotary; and that the teste shall be in the name of the person holding the commission of chief justice at the time the writ bears such date. A capias then, issued on the first day of the term before the court sits, made returnable the same day, being the general return day, and tested as of the last day of the previous term, is regular; and the service of such writ on the same day, whether the arrest be made before or after the rising of the court, is also regular.

Huffvngton, for plaintiff.

J M. Clayton, for defendant.

I As it is of some importance to settle the practice, it is now ruled Iby the court, that all process to compel the appearance of a defendant, and all execution process, if issued on the first day of the term I before the eourt is opened, shall be made returnable on that day, and ¡bear teste as of the last day of the previous term; but if issued on [the first day of the term after the court is opened, such process shall fcear teste on that day, and be made returnable the first day of the liext term.

Motion refused.