3. Service of a capias and attachment.

4. Service of a summons and attachment.

And these will be considered in the four following Chapters.

Upon what person the service must be made. 1. In case of individuals. It may here be remarked of all the above modes of service generally- that where there is but a single defendant, the service is of course, made upon him; and where there are several individuals, defendants, the service must be made upon all of them.

The same is true of the service of trustee writs, both upon the principal defendants and the trustees.

2. In case of corporations. In suits against towns, precincts, parishes, or villages, or against the proprietors of any common or undivided lands, or other estate,' or against any other body corporate 2-excepting, of course, those, in relation to whom a different rule has been prescribed by subsequent statutes, as will be stated below, the service of the writ must be made, by leaving a copy of the writ or summons, with the clerk, or with one or more of the principal inhabitants of such towns, &c. or with the clerk, or some principal member, of such other body corporate.

In suits against turnpike corporations, the service of the writ must be made, by leaving a true and attested copy thereof, with the treasurer, or some individual member thereof.

1 Stat. 1783. ch. 39. s. 6. 2 Stat 1785. ch. 75. s. 8.

3 Stat. 1804. ch. 125. s. 6. The provision of this Stat. 1804. as to the time and mode of service of writs upon turnpike corporations, seems to be confined to suits against them, "for unnecessarily delaying any pas

In suits against any manufacturing corporation, bank, or insurance company, the service is made by serving a copy of the writ or summons, upon the clerk of such manufacturing corporation, or upon their agent, or other officer having charge of their business at their manufactory, or upon the cashier of such bank, or the secretary of such insurance company.1

The same rules apply to the above named corporations respectively, as to the mode of service upon them, of trustee writs, in which they are summoned as trustees.2

senger, or for demanding or receiving more than legal toll." If so, then the above rule, as to the mode, as also that, stated ante page 131, as to the time, of service of writs upon turnpike corporations, must be considered as restricted to those particular suits, — and the writ, in all other cases, must be served upon them, within the time, and in the mode, prescribed for corporations generally, by Stat. 1785. cited in the preceding

note.

1 Stat. 1833. ch. 124. s. 1.

2 Stat. 1832. ch. 164.

CHAPTER XI.

SERVICE OF AN ORIGINAL SUMMONS.

It is provided by statute, that in all suits, wherein the process is by original summons, the service thereof by the proper officer, shall be good and valid in law, either by his reading the writ or original summons to the defendant, or by leaving a true copy thereof at the house, or place of last and usual abode of the defendant, attested by such officer.1

Accordingly, the original summons, whenever it is used, and all those writs which have been stated in the last section of the preceding chapter, to be each of them, in substance, an original summons, are served simply by reading, or by an attested copy.

1 Stat. 1797. ch. 50. s. 2.

CHAPTER XII.

SERVICE OF A CAPIAS.

SECT. I. ARREST IN GENERAL.

The second mode of serving a writ, is as a capias, that is, by arresting the defendant. This, the officer is authorized to do, by virtue of the command in the writ, for want of goods or estate, "to take the body of the defendant," and by a compliance with which command, the writ, as we have seen, is made a capias, in distinction from a capias and attachment.

Though the order in the writ in the form prescribed, be, to attach the goods, &c. and "for want thereof," to take the body, yet the plaintiff may, if he choose, direct the body to be taken in the first instance, that is, he may, at once, use the writ as a capias. And the defendant cannot protect himself from arrest, by tendering property sufficient to secure the demand, for that would be to compel the plaintiff to use his writ, as a capias and attachment, when, in fact, he has an election to use it either as such, or as a capias.

But if the plaintiff wish the person of the defendant to be arrested, — that is, if he intend to use the writ as a capias, he must give such special direction, either on the writ, or verbally to the officer; for though an officer would be justified in at once serving the writ as a capias, without further directions than those contained therein, he is under no obligation to do so. And, in fact, it is only by such special direction,

that the plaintiff can express his election, to use his writ as a capias.

And it should be observed, that if the plaintiff have once elected to have his writ served as a capias, and the body of the defendant have accordingly been arrested, he cannot afterwards have the same writ served as a capias and attachment, by attaching the defendant's property.' And the converse of this rule is equally true.

SECT. II. WHO MAY BE ARRESTED.

All persons are liable to be arrested, unless specially exempted.

By the law of nations, ambassadors and foreign ministers: by the Constitution of the United States, the senators and representatives in Congress, in all cases, except treason, felony and breach of the peace, during their attendance at the session of their respective houses, and in going to and returning from the same by the law of the United States, non-commissioned officers, privates, musicians, artificers, and marines, in the service of the United States, under the circumstances set forth in the several acts :- by the Constitution of Massachusetts, members of the House of Representatives, on mesne process, during their going unto, returning from, and attending the

1 Brinley v. Allen, 3 Mass. Rep. 561.

2 Art. I. Sect. 6.

3 Stat. U. S. 1798. ch. 89. s. 5. Stat. U. S. 1799. ch. 154. s. 4. Stat. U. S. 1802. ch. 9. s. 23.