do, the defendant may not only plead in abatement, but may, also, maintain an action of trespass against the officer, for false imprisonment.' In one such case, the court discharged the defendant upon motion.2

The difference between the names, however, must be a material one: for when there is only an inaccuracy in the spelling, so that the name is still idem sonans, the rule does not apply.

But an appearance by the defendant in the suit, either by his wrong name or his right, without pleading in abatement, will render him liable to be taken on the execution, by the wrong name.*

1 Cole v. Hindson, 6 Term. Rep. 234. Shadgett v. Clipson, 8 East. Rep. 328. Coffall v. Hentley, 1 Marsh. Rep. 75.

2 Wilks v. Lorck, 2 Taunt. Rep. 400.

3 Ahitbol v. Beniditto, 2 Taunt. Rep. 401.

* Crawford v. Satchwell, 2 Strange. Rep. 1218.

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CHAPTER XIII.

SERVICE OF A CAPIAS AND ATTACHMENT.

It is by the attachment of property, that the capias and attachment, and those writs which have been stated to be substantially like this, are served. And this mode of service is effected,

First, By attaching property, in pursuance of the command in the writ, "to attach the goods or estate of the defendant," and

Secondly, By summoning the defendant to appear at the court, from which the writ issues, upon the return day named therein.1

The summons. The form of summons used in this case, is given in Stat. 1784. ch. 28. s. 1. immediately following the form of the writ. It must be filled up, by a direction to the defendant, - a specification of the term of the court, at which he must appear, the name of the plaintiff, and a brief description of the nature of the action, as “in a plea of the case," or "of debt," or "of trespass," according to the fact, "as set forth in the writ." The amount to which his property is attached, should also be inserted, and the summons be dated, in the same manner as the writ.

The service of this summons upon the defendant, which is always necessary to complete the service of a writ of capias and attachment, is made, either by

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

delivering it to him, or by leaving it at his last and usual place of abode, the requisite number of days, before the return day of the writ.' It is not necessary, however, nor is it usual in practice, to serve the summons at the same time, that the attachment is made; it is sufficient, if it be done, at any time before fourteen days prior to the return day. The writ alone, therefore, is generally given to the officer, at the time the attachment is made, and the summons at any time afterwards, in season for legal service.

It has already been stated, that a capias and attachment may be served by a nominal attachment merely, and service of the summons as above.

SECT. I. ORIGIN OF THE RIGHT OF ATTACHING PROPERTY.

The practice of attaching the property of the defendant on mesne process, and holding it to satisfy any judgment which the plaintiff might recover, was unknown to the common law.

In real actions, however, property might sometimes be distrained, in order to compel a party to appear in the suit, but as soon as the party did appear, the attachment was dissolved.

From this practice of distraining to compel an appearance, our present law of attachment took its origin. The right of attaching property, was first extended to all actions, afterwards the attachment was allowed to continue until judgment, and finally, it was pro

vided, that it should continue for thirty days after judgment, to enable the creditor to seize it on execution;1 which is the present law.

SECT. II. WHAT PROPERTY MAY BE ATTACHED.

1. Real estate. All legal estates in lands may be attached; but merely equitable interests are not liable to attachment, unless made so by statute.2 The only interest of this kind, which has been made subject to attachment, by statute, in this Commonwealth, is the equity of redeeming mortgaged estates. So that legal estates in land, and equities of redemption, are all the subjects of attachment, which fall under the head of real estate.

There have been some decisions in our courts, growing out of the rights to mortgaged premises, and of the liability of equities of redemption to attachment, which it may be proper to mention in this connexion.

Thus it has been holden, that the interest of a mortgagee, in the land mortgaged to him, cannot be attached in a suit against him, until after he has entered for condition broken, and, it seems, not until foreclosure.1

5

So the right which a mortgagor has, by statute, to

1 Ancient Charters, &c. pages 50, 192, 193, 367. Stat. 1784. ch. 28.

s. 11. Bond v. Ward, 7 Mass. Rep. 123, 128.

2 Russell v. Lewis, 2 Pick. Rep. 508, 510.

Stat. 1798. ch. 77. s. 3.

* Portland Bank v. Hall, 13 Mass. Rep. 207. Blanchard v. Colburn et ux. 16 Mass. Rep. 345. Eaton v. Whiting, 3 Pick. Rep. 484.

5 Stat. 1815. ch. 137. s. 1.

redeem from the purchaser, his equity of redemption, after it has been attached and sold on execution, has been holden not to be such an interest, as can be attached in a suit against the mortgagor.' But yet this interest is one, which the mortgagor may assign or mortgage; and if he mortgage it, his right to redeem such mortgage, may be attached.2

A seizin of lands, for an instant, is not liable to attachment.3

Where a deed of real estate was acknowledged before the register of deeds, and handed to him to be recorded, and at the same instant, a creditor of the grantor attached the real estate, the attachment was holden valid, on the ground, that a deed must not only be acknowledged, but that a certificate of acknowledgment must be written upon it, before it can be recorded.1

2. Personal property. All personal property is liable to attachment, unless exempted therefrom under some of the rules of the common law, or by statute. And as these exceptions are not numerous, a statement of them, that is, of what personal property has been considered as not subject to attachment, will be the shortest method of shewing what is liable to attach

ment.

One general exception has been taken from the law of distress, from which, as we have seen, the right of attaching property at all, originated. As it was neces

1

Kelly et ux. v. Beers, 12 Mass. Rep. 387.

2 Bigelow v. Willson, 1 Pick. Rep. 485, 493. Clark v. Austin, 2 Pick.

Rep. 528. Reed v. Bigelow, 5 Pick. Rep. 281.

3 Chickering v. Lovejoy et al. 13 Mass. Rep. 51.