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with an attesting clause in the name of the king himself, “witness ourself.” All the other writs in the cause bear teste in the name of the chief justice, and these last writs are called judicial writs, by way of distinction from the original one obtained out of chancery:

In modern practice the original writ is frequently dispensed with by means of a fiction, and a proceeding by bill is substituted.?"

2792. In the United States, the original writ, as in England, is generally dispensed with, the constitutions of the several states giving power to issue writs, so that with us, what are called the mesne writs in England are here original writs, and we have also final writs, into which two kinds all our writs are divided, there being no mesne or middle writs as in England.

The several constitutions of the states have provided the mode of issuing writs and process. They are generally issued in the name of " the commonwealth,” “the people,” or “the state,” as the constitution requires. These writs must be in writing or printing, signed by the clerk or prothonotary of the court, or in the name of, and attested by, the presiding judge, and sealed with the seal of the court. They must be directed to the officer by whom they are to be served,and should be dated, and state the time when they are to be returned, which is called the return day.

There must be a proper description of the plaintiff,} of the defendant,' and of the cause of action.

2793. The usual mode of suing out a writ of process is by filing a præcipe with the clerk or prothonotary. The præcipe is a brief written order, requiring that officer to issue a writ therein named, containing the names of the plaintiff and the defendant, and stating for what action. It is made by the attorney of the plaintiff in general, but it may be made by the plaintiff himself. On the receipt of the precipe the clerk or prothonotary makes out the writ, which is handed to the plaintiff. This writ is delivered to the proper ministerial officer to be executed. When these writs issue out of the courts of the United States, they are directed to the marshal ; when out of the state courts, to the sheriff.

In some of the states provision is made by statute requiring writs sued out




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Stephen, Pl. 54.

State v. Dozier, 2 Speers, So. C. 211. The seal is essential, and the want of it cannot be cured by amendment. Foss v. Isett, 4 Greene, Iowa, 78; Churchill v. Marsh, 4 E. D. Smith, N. Y. 369; Williams v. Vanmetre, 19 Ill. 293; but see Johnston v. Hamburger, 13 Wisc. 175.

Wood v. Ross, 11 Mass. 271. The omission of the proper direction is not fatal. Parker v. Barker, 43 N. H. 35.

6 Smith v. Winthrop, 1 Ala. 378. 6 Stating the return day in the wrong term is fatal. Rigsbee v. Bowler, 17 Ind. 167; Hildreth v. Hough, 20 Ill. 331.

? It seems that naming the plaintiff by initials merely is sufficient. Sistermans v. Field, 9 Gray, Mass. 331.

8 In general, under the statute provisions, much less certainty is required in describing the defendant by his exact name than the plaintiff

. But there must be a description which can be made certain. Thus describing the defendants as “heirs of A. B.” is insufficient. Reynolds v. May, 4 Greene, Iowa, 283 ; see Smith v. Morris, 29 Ga. 339; Graham v. Roberts, 1 Head, Tenn. 56.

. Moody v. Taylor, 12 Iowa, 71.

10 This practice is not universal. In some of the states the writs are filled up by the attorney. Slater v. Carter, 35 Ala. N. s. 679. Under the New York code the action is commenced by service of a copy of the petition or complaint with a summons signed by the plaintiff's attorney without process from the court unless an arrest or attachment is desired. And in most of the states where the action is commenced by writ the use of the præcipe is unknown, or unusual. The writs are commonly issued in blank by the clerk, and filled up by the attorney.



by non-resident plaintiffs to be indorsed by a resident of the state, who thereupon becomes liable for the costs if the defendant prevails." The indorsement is made by putting a signature on the back of the writ, and is in practice usually made by the attorney. The words, “from the office of A. B.,” are a good indorsement 12

2794. On the receipt of the writ the ministerial officer is required to serve it according to its exigency, and make a return of it to the court, with a statement indorsed upon it, setting forth what he has done; this statement is also called the return.

In the service of the writ the sheriff or marshal has the right, when resisted, to call the posse comitatus, that is, the aid of such individuals as will enable him to execute it according to its exigency and the commands of the law. But with respect to writs which issue, in the first instance, to arrest in civil suits, the sheriff is not bound to take the posse comitatus to assist him in the execution of them; though he may, if he pleases, on forcible resistance to the execution of the process.

Before the sheriff uses any force, however, he ought to make a demand, for force ought to follow, not precede, the commands of the law.

2795. The effect of the sheriff's return is different when it regards himself and when it affects others. It is conclusive against him and he cannot gainsay it;14 and when it is in his favor, as a return to a fieri facias, setting forth a valid excuse for not having sold goods, such as that they were destroyed by fire, or that the proceedings were stayed by a judge's orders, or the like, it is prima facie evidence of the fact in his As between the parties to the suit, the return cannot be traversed, it being conclusive.16 If false, the sheriff is liable to an action for making a false return."

The sheriff is allowed to amend his return in certain cases, but never when manifest injustice will be done to either of the parties; and he may be compelled to make a sufficient return by attachment for contempt when he neglects or refuses to make it upon or after the return day.

2796. The usual processes to bring a party into court so that judgment may be rendered against him are, the summons, the capias, and the attachment.

2797. In form, the summons is a writ commanding the sheriff to summon, that is, notify, the defendant, if within his jurisdiction, commonly called his bailiwick, to appear in court on a certain day to answer the charge of the plaintiff.18 It may be issued at any time during term time or in vacation, but it is usually tested, that is, dated, as of a day during term, for it is presumed to have been issued by the immediate order of the court, as was probably the case in former times, io and it is made returnable on the first day of the next

19 term, which, as has been observed, is the general return day; and the term to which the defendant is required to appear is called the appearance term.

The act of notifying the defendant that a summons has been issued against






11 Scruton v. Deming, 36 N. H. 432.
12 Wheeler v. Lynde, 1 All. Mass. 402.
18 2 Inst. 193; 3 Inst. 161.

14 Hustick v. Allen, Coxe, N. J. 168; Murrell v. Smith, 3 Dan. Ky. 462; Blue v. Commonwealth, 2 J. J. Marsh. Ky. 26; Commonwealth v. Fuqua, 3 Litt. Ky. 41.

) Browning v. Harford, 7 Hill, N. Y. 120; Polley v. Lenox Iron Works, 4 All. Mass. 329; Foster v. Dryfus, 16 Ind. 158; Kingsbury v. Buchanan, 11 Iowa, 387.

16 Wilson v. Hurst, 1 Pet. C. C. 441; Diller v. Roberts, 13 Serg. & R. Penn. 60; Bott v. Burnell, 11 Mass. 163; Whitaker v. Sumner, 7 Pick. Mass. 551; Lawrence v. Pond, 17 Mass. 433; Reeves v. Reeves, 33 Mo. 28; Tullis v. Brawley, 3 Minn. 277; but see Owens v. Ranstead, 22 Fl. 161.

17 Stenson v. Snow, 13 Me. 263. 18 22 Viner, Abr. 42.

19 Considerable diversity appears to exist as to the date of writs; in some of the states they are tested, or dated, on the day they issue, whether the same be in term or vacation.

him is performed by reading the summons to him by the sheriff or his deputy, or by delivering him a copy of the writ; the former is called personal service of the writ, and the latter a service by copy. This service may be made at any time after the writ comes into the hands of the sheriff, and not later than the day fixed by statute, which may be the return day or a certain time before. The sheriff is bound in this, as in every other case, to use due diligence in the execution of his writ; if he knows that the defendant is within his territorial jurisdiction, and he neglects to serve the writ, and he returns that he could not find the defendant he will be liable for all consequential damages.

After having served the summons, it is his duty to return it to the court whence it issued, with what he has done. If the defendant has been served, , .

, he returns it “served.” If, on the contrary, he has not been able to find him, his return is non est inventus, usually abbreviated “N. E. I.,” that the defendant could not be found within his jurisdiction.

When the return of non est inventus has been made, the plaintiff may issue a second summons, returnable at another term, which is called an alias summons; if this should also be returned non est inventus, a third may be issued, which is called a pluries summons; and if a fourth or fifth summons should be wanted, they are denominated respectively second pluries summons, third pluries summons, and so on, numbering each future pluries in the order they are issued, until one has been served, and the proceedings go on as if the defendant had been summoned on the first writ.21

In some of the states, if, after summons has been issued, the defendant removes into another county in the same state, a writ may be issued directed to the sheriff of the county to which the defendant has removed, commanding him to summon the defendant to appear in the court whence the summons has been issued; this is called a testatum summons, differing from the common summons only in stating the fact of such removal.22

2798. The capias, or more properly the capias ad respondendum, is a writ commanding the sheriff to take the body of the defendant and have him before the court to answer the charge of the plaintiff

. It is called a capias ad respondendum, or a writ of arrest to answer, to distinguish it from the capias ad satisfaciendum, commonly abbreviated ca. sa., which is a writ of arrest to satisfy ; this last is issued only after judgment, and is the most astringent writ of execution. The capias ad respondendum may be issued in term time, or in vacation, and, like a summons, it may be tested either during some day of the term, which is called the teste day, or at the time it is issued in vacation, as is provided for by the statute of the state. Let us now inquire against whom it may be issued; for what causes; how it is to be executed; what is to be done after the arrest; and as to the return of the writ.

2799. When a proper cause of action exists, a capias may be issued in general against all persons; but there are many cases where it would be injurious to the public interest that certain persons should be arrested in a civil action, and although, in our free country, we have abolished all personal privileges, yet


20 Where the defendant has a usual place of residence in the jurisdiction, the service may under the statutes of many of the states be made by leaving the summons or copy at such place of residence. Feasel v. Cooper, 15 La. Ann. 462; Miller v. Mills, 29 111. 431; Sturgis v. Fay, 16 Ind. 429.

21 3 Sharswood, Blackst. Comm. 283.

22 Walker, Intr. 516; 3 Sharswood, Blackst. Comm. 283. Under the practice stated in the text, where the defendant resides out of the county, it is usual to issue the testatum summons in the first instance to avoid the loss of a term. But in many of the states writs are directed to any sheriff and run throughout the state. Where the defendant resides out of the state, service is sometimes made under statute provisions by advertisement in a newspaper under an order of court.

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where the public good requires it, privileges will be allowed, not indeed to the individual, but to the situation in which he is found. These privileges are either general and absolute, or limited and qualified.23

2800. Those who are absolutely exempted from arrest may be divided into the following classes :

Ambassadors and their servants, when the debt or duty for which they are sued has been contracted by the latter since they entered into the service of such ambassador.

Bankrupts, who have been finally discharged, for any debt which might have been proved by the creditor under the bankrupt proceedings.

Insolvent debtors, for any debt which was due or owing at the time of the insolvent's discharge.

Executors and administrators, when sued in their representative character.21

In some states women are exempt from arrest for any debt contracted by them?

2801. The classes of persons who are exempted from arrest in civil cases, for a limited time, are the following:

Members of congress. This privilege is not only that of the member, but also that of his constituents, and of the house of which he is a member; and every man is bound to know and take notice of this privilege. The same privilege is extended to the members of the different state legislatures in their own state. The time during which this privilege exists includes all the session of

congress, or in case of the members of the state legislatures, during the session of their body, and a reasonable time for going to and returning from the seat of government.

Électors, under the constitution and laws of the United States, or of any state, are protected from arrest for any civil cause, while in the performance of their duty as such, and eundo, morando, et redeundo, that is, in going, staying at, or returning from an election.

Militia men, while in the performance of military duty, and sailors and soldiers in the service of the United States, or of the state, and eundo, morando, et redeundo.

All persons who, either necessarily or of right, are attending in any court or forum of justice, whether as judge, attorney, juror, party interested, or witness, and eundo, morando, et redeundo.29

2802. A capias can be issued only in cases where the plaintiff is entitled to bail, and cannot, as a summons, be issued of course where the plaintiff has a





3 A distinction is to be made between persons against whom a capias cannot issue and those against whom it cannot be served. * In some of the states a capias is joined with a summons or attachment, but no arrest is made except by special direction. As a general rule it may be stated that a capias issued against persons absolutely exempt from arrest, or against a corporation which it is physically impossible to arrest, is bad, and will be abated. But a capias issued against persons having only limited privileges which they may waive is not void. An arrest under it will be a trespass and illegal, but it may be served without arrest if such provision is made by statute, and the effect of such service is governed by other rules.

24 But see Fitzsimmons v. Salomon, 2 Binn. Penn. 440.

2 Hatheway v. Jones, 20 Ark. 109. In some of the states the defendant cannot be arrested for debt, unless there is strong presumption of fraud first established, for any contract the defendant may have entered into.

Jefferson, Man. 3; Comyn, Dig. Parliament, D, 17.

Story, Const. 82 856 to 862. * This privilege does not extend out of the state. Manchester v. Manchester, 6 R. I. 127.

» Hammerskold v. Rose, 7 Jones, No. C. 629; Henegar v. Spangler, 29 Ga. 217; Wood v. Neale, 5 Gray, Mass. 538; see Page v. Randalí, 6 Cal. 32.

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cause of action. This is regulated by the local laws; in some of the states a defendant

may be held to bail in all cases of debt; in others he can be held to bail only where a prima facie case of concealment of property is made to appear.

Generally he may be arrested for his torts, either upon an affidavit of the cause of action being previously made, or upon its being made to appear after the arrest; in this latter case the arrest is made at the risk of the plaintiff. And if a defendant be arrested, and upon an investigation it afterward appear that the arrest has been improperly made, either the writ will be quashed, that is, annulled, or the defendant will be discharged on common bail, that is, by entering an appearance. This common bail is a formal entry of fictitious sureties in the proper office of the court. It is in the same form as special bail, but differs from it in this, that the sureties are fictitious persons, as, John Doe and Richard Roe. 30

2803. The service of this writ is made by arresting the defendant; by arrest is meant the detention of the defendant by the officer who is required to execute the writ, so that he has the defendant in his power and the latter submits to him. To constitute an arrest it is usual to seize or touch the person of the defendant, and that is certainly the safest mode to pursue,31 yet it has been held that no manual touching of the body or force is requisite when the defendant is within the power of the officer and submits to his authority; as, if the bailiff come into the room and tell the defendant he arrests him and locks the door.33 But an arrest cannot be made by words only.

Once in the power of the officer, if the defendant escape, he may be retaken, and for this purpose the officer is justified in breaking not only an inner, but an outer door. Before his arrest the officer cannot break an outer door in order to effect it ; 34 after his arrest and escape he may break such a door, not, however, until a demand has been made to open it; for the law, ever anxious to preserve the peace, will permit no violence unless it is impossible to avoid it. But

. this privilege of protecting the outer inlet from being broken in a civil case is limited to the house of the defendant alone, and will not screen the house of another where the defendant, with the owner's consent, flies for protection from a civil process.35

2804. When the defendant has been arrested and he is in custody, he must put in bail or be imprisoned. This leads us to consider the nature and kinds of bail.

2805. We have seen that common bail consists in the formal entry on the record of fictitious names in order to enter an appearance. The object of the arrest being to compel an appearance, the defendant is required upon his arrest either to go to prison or to give a bail bond to the sheriff

, conditioned that he will appear; this the sheriff is authorized, or indeed required, to take with sufficient sureties; this species of bail is called bail below, or bail to the sheriff. If the defendant do not appear according to the condition of the bond, the plaintiff is entitled to rule the sheriff to bring the body into court, or to take an assignment of the bail bond and sue the defendant and his sureties upon that instrument.


Stephen, Pl. 56, 7; Graham, Pract. 155; Highmore, Bail, 13. 31 3 Sharswood, Blackst. Comm. 288; Huntingdon 1. Blaisdell, 3 N. H. 318.

It is an arrest if the officer lay his hands on a person with the intention of arresting him, though he do not succeed in stopping and holding him. Whitehead 2. Keyes, 3 Ali, Mass. 495.

32 Gold v. Bissell, 1 Wend. N. Y. 215; Courtoy v. Dozier, 20 Ga. 369. 33 Williams v. Jones, Cas. temp. Hardw. :01; 4 Bos. & P. 211; Buller, Nisi, P. 82; Strout v. Gooch, 8 Me. 127.

31 F. Moore, 917, p. 668; Cooke's Case, W. Jones, 429.
35 Semayne's Case, 5 Coke, 93. See Still v. Wilson, Wright, Ohio, 505.

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