Definition
Dies communes in banco (Latin: "common days in bench") is a historical English procedural term referring to the fixed, regular days within a court term on which parties were required to appear before one of the superior common law courts sitting in banco — that is, as a full bench, as opposed to at nisi prius. These were the scheduled return days to which writs were made returnable and on which defendants were expected to appear and answer. Because they fell at predetermined intervals within the legal term, they were considered equally available to all litigants, distinguishing them from days specially assigned for particular causes.
Why It Matters in Research
This term is essentially extinct as a live legal concept but surfaces regularly in historical English common law records, pleading manuals, and procedural treatises from the medieval period through the early nineteenth century. Researchers encountering the phrase in writs, court rolls, or plea books should understand that it marks a formal procedural moment — the scheduled appearance date — not an ad hoc or specially ordered day.
The term connects directly to the architecture of the English term system. The common law year was divided into four terms (Hilary, Easter, Trinity, and Michaelmas), each subdivided into return days. Dies communes in banco were the regular slots within those terms. Missing such a day without excuse could constitute a procedural default, though Bouvier notes that appearance on such a day after default had occurred could amount to a waiver of that default — a detail relevant when tracing the procedural posture of a case in historical records.
Researchers should also note the relationship to the quarto die post, the fourth day after the formal opening of term, which Bouvier identifies as itself sometimes called a dies communes in banco. This overlap can cause confusion when parsing the technical posture of early pleadings.
The statute 51 Hen. III, referenced in Burrill, is among the earliest legislation regulating these appearance days, which signals that this procedural structure has statutory roots going back to the mid-thirteenth century. A researcher working in Year Books or early plea rolls will benefit from recognizing these days as landmarks in the procedural calendar rather than narrative events.
Historical Dictionary Support
The three source dictionaries agree on the core meaning: regular, fixed days for appearance in the common law courts, also called common return days. Their differences are matters of depth rather than substance.
Black's entry is minimal, pointing to Reeve's History of English Law as authority. Bouvier adds procedural texture by noting the connection to the quarto die post and the consequence of appearing on such a day after a prior default — a nuance absent from Black's. Burrill provides the most thorough treatment, citing Crabb's History and two references to Reeves, and adding the interpretive note from Fleta that these days were termed "common" because they were equally open to all suitors (pariter omnibus communes) — a detail that clarifies the Latin word communes and distinguishes these scheduled days from specially appointed ones. Burrill also alone flags the Statute of 51 Hen. III as the regulatory backdrop.
None of the entries address the formal decline of these days following the procedural reforms of the nineteenth century, particularly the Common Law Procedure Acts and the ultimate abolition of the term system under the Judicature Acts of 1873–75. For a researcher tracing why this term disappears from later sources, that legislative history is the answer, and none of the historical dictionaries supply it.
Jurisdictional Note
Dies communes in banco is a term of English common law procedure and has no direct American counterpart. American courts inherited general common law pleading concepts but did not transplant the English term-and-return-day system intact. The phrase will not appear in American practice materials except as historical reference.