It has frequently been resolved, that courts in cases of this nature, will not nicely scan the time of the return of parties, witnesses, &c. 2 Stra. 986, 987, 990, 1094. 1 Barnes. 278. 2 Bl. Sep. 1113. Gilb. Cas. C. R. 308. It is fair to presume, that the adjustment of the expenses of the action just tried, would detain him at least one day. His exemption from process is the privilege of the court. 2 Bl. Rep. 1193. Annal. 41. Dall. 357. The distinction between writs of summons and capais, is not solid, as it respects the present question, and was overruled in the case of the member of convention impleaded in Philadelphia. (Bolton v. Martin.) Dall. 296. The p.arty’s attention to his own business in the suit depending, is distracted by other objects, and he is subjected to the inconvenience of attending an action at a considerable distance from his own place of abode, contrary to the wise indulgence of the law. Vide Hutt. 59. 2 Stra. 1094.
The defendant must therefore be discharged from this action.