a Memorandum. — In the winter vacation, to wit: on the 19th day of January, 1841, the Honorable Richard H. Bayard having been elected to the Senate of the United States, resigned his office of chief justice of this State; and the Honorable James Booth, of New Castle, was appointed in his place on the 12th of March, 1841, and took his seat at the commencement of this term. On the morning of the next day, Mr. John M. Clayton, of counsel for the defendant, moved the court to set aside the writ for irregularity, 1st. Because it ought to have been made returnable the first day of the next term, namely, the fourth Monday of October, 1841. 2d. Because it ought to have been tested of the present term, in the name of the present, and not of the late chief justice.
He argued, that as the law does not regard fractions of a day, *Page 330 and as the present term commenced on Monday, the 26th of April, the whole of that clay 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. Huffington, 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 contemplation 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, which is the teste-day: that independently of this, the present writ could 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 of the present term: that although, as a general principle, the law does not regard fractions of a day, yet fictions of law never were intended to defeat rights; and therefore courts will always inquire as to the real time of doing an act, wherever the purposes of justice require it.
By the Court: The issuing and service of the writ are in conformity with the constant practice of the courts in this State. The term does not begin until the opening of the court on the clay appointed by law, for the commencement and holding of the court, and until then, the vacation does not terminate. A writ may be sued out in term time or vacation, but must bear teste on some day in term, not being Sunday. If tested in vacation, it seems the writ is void, although the sheriff is justifiable in serving U. If sued out in vacation, it must be tested as of the previous term, and by our practice, is tested as of the last day of the previous term. The day mentioned in the teste-clause is the date of the writ, and not the day expressed *Page 331 in the memorandum of the prothonotary at the foot of the writ, showing the actual time of his issuing and signing U. 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 prothonotary; 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 clay 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.
As it is of some importance to settle the practice, it is now ruled by the court, that all process to compel the appearance of a defendant, and all execution process, if issued on the first day of the termbefore the court 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 bear teste on that day, and be made returnable the first day of the next term.
Motion refused.