This peculiar privilege from arrest is a very important right granted at a very early day, and should be care*389fully preserved, within the scope of our statutes, especially as cases of great oppression may occur, such as where a defendant is arrested in a county distant from that in which is his residence-The act of 1725 provides, that if a defendant exempt from arrest is taken by any writ of arrest, “ the court where such writ is depending shall forthwith, on the defendant’s motion, stay all further proceedings,” &c. In construing this law, we are to look at the state of things which existed at the time of its passage, and indeed it is only necessary to refer to it at the present time, in order to perceive that the construction urged by the plaintiff’s counsel is not tenable. Formerly (as now) the courts sat but at intervals. The application of the defendant arrested, must be made to the court, and not to a single judge. For a considerable portion of the year, in most of the counties of the state, the court is not in session, and no application therefore could be made to the court if the word “ forthwith” is limited to an instantaneous motion on the part of the defendant. Such a construction would render the provisions of the law almost nugatory as to practical effects. Forthwith means, with convenient speed and with due diligence. This construction has been almost uniformly adopted by our courts. In this county, the practice requires that the defendant should make his application to the court before the expiration of the quarto die post the return day—■ and we see no reason why it should be changed.
Rule absolute.