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length the church interposed and exempted certain holy sea. sons from being profaned by the tumult of forensic litigations. As, particularly, the time of advent and christmas, which gave rise to the winter vacation; the time of lent and easter, which created that in the spring; the time of pentecost, which produced the third; and the long vacation, between midsummer and michaelmas, which was allowed for the hay time and harvest. All sundays also, and some particular feltivals, 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 Theodofius, comprized in the Theodosian code m.
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 confefsor”, that from advent to the octave of the epiphany, from septuagefima 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 » 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 fecular plea could be held, nor any man sworn on the evangelists”, in the times of advent, 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') that allses and juries might be taken in some of
m Spelman of the terms.
these holy seasons. And soon afterwards a general Jispensation was established by statute Westm. 1. 3 Edw. I. c. 51. [ 277-) which declares, that, “ by the affent of all the prelates, allises “ of novel diffeisin, mort d'ancestor, and darrein presentment “ shall be taken in advent, feptuagesima, 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 feasons, 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. .
• There are in each of these terms sated 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. On some one of these days in bank all original writs must be made returnable ; and therefore they are generally called the returns of that term : whereof évery term has more or less, said by the mirrors 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*: and therefore no proceedings can be held, or judgment can be given, or supposed to be given, on the sunday".
The first return in every term is, properly speaking, the first day in that term; as, for instance, the octave of St. Hin lary, or the eighth day inclusive after the feast of that saint: which falling on the thirteenth of January, the octave therec. s. $ 108.
uy Jon. 156. Swann & Broome. B R. Registr.19. Salk.627. 6 Mod. 250. Micb. s Geo.III. et in Dom. Proc.1766.
fore or first day of Hilary term is the twentieth of January.
And thereon the court fits to take efoigns, or excuses, for such [ 278 ) as do not appear according to the summons of the writ:
wherefore this is usually called the effoign day of the term. 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. For our fturdy 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': preserving in this respect the German custom, of which Tacitus thus speaks ", “illud ex libertate « vitium, quod non fimul nec jufi conveniunt ; sed et alter et « tertius dies cunciatione coëuntium abfumitur." And a similar indulgence prevailed in the Gothic constitution: “illud enim • nimiae libertatis indivium, conceffa toties impunitas non pa“ rendi ; nec enim trinis judicii conselibus poenam perditae «c caufae contumax meruit x." Therefore, at the beginning of each term, the court does not usually y fit for dispatch of · business till the fourth or appeurance day, as in Hilary term on the twenty-third of January (1); and in Trinity term, by statute 32 Hen. VIII. c. 21. not till the fifth day, the fourth
Feud. I. 2. 1. 22
* Stiern. de jure Gorb. l. 1.6.6.
(1) Michaelmas term always begins on the 6th of Norember, and ends on the 28th of the fame month; Hilary term always begins on the 23d of January, and ends on the 13th of February; unless any of these four days falls on a Sunday, then the term begins or ends on the day following. Eaiter term begins always on the wednesday fortnight after Easter funday, and ends on the monday three weeks afterwards. Trinity term begins always on the friday after Trinity funday, and ends on the wednesday fortnight after it begins. Cromp. Prac. 1.
happening happening on the great popish festival of Corpus Chrifti which days are therefore called and set down in the almanacs as the first days of the term : and the court also fits till the quarto die poft or appearance-day of the last return, which is therefore the end, of each term.
2 See Spelman on the terms. ch. 17. ridical day. Yet in 1902, 1713; and Note, that if the feast of saint John the 1924, when midsummer day fell upon baptitt, or midsummer day, falls of the what was regularly the last day of the morrow of Corpus Cbristi day, (as it did term, the courts did not then fit, but it A. D. 1614, 1698, and 1709, and will was regarded like a Sunday, and the term again A. D. 1791.) Trinity full term was prolonged to the twenty-fifth of then commences and the courts fit on that June. (Ref. C. B. Buab. 176.) day; though in other years it is no ju.
CHAPTER THE NINETEENTH,
of PROCES S.
THE next step for carrying on the suit, after suing out
1 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 fome collateral interlocutory matter; as to fummon juries, witnesses, and the like a Mesne process is also sometimes put in contradistinction to final process, or procef's of execution ; and then it fignifies 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 sheriffs messengers called fummoners, 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"; (which stick or wand among the northern nations is called the baculus
: a Finch. L. 436.
cFf. 2. 4. 1.