Potter v. White

3 Del. 329

• Court: Superior Court of Delaware
• Decided: July 5, 1841
• Status: Published

Opinion

By the Court:

Booth, Chief Justice.

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| 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.