the defendant is not allowed to countermand the appearance, or change his attorney without rule of court.1 The acts of the second attorney, unless a regular substitution be shown, will be disregarded by the court.2

But in our practice, any party may dismiss his attorney and appoint a new one at pleasure, without application to the court. The most regular mode of doing this, is by a letter of attorney to the new one, revoking the former power. This, when filed in the case, is effectual to take away the power of the former, and to substitute the latter, provided notice of the change is given to the opposite party, and subject, perhaps, to the existing lien of the first attorney, for fees and disbursements. If the attorney so dismissed, should persist in appearing, and keep his name upon the docket, the court, on application, would order him to withdraw.

The attorney newly appointed must take notice at his peril, of the rules to which the former attorney was liable, and is bound by his lawful agreements.

1 1 Arch. Pract. 29. 1 Paine. & D. Pract. 196.

2 Ibid.

3 7th rule of S. J. C. Appendix, A.

CHAPTER V.

MODES OF INSTITUTING A SUIT.

Suits in the courts of this Commonwealth, are commenced by petition, complaint, bill in equity, libel, and writ.

Petition is the process by which one tenant in common or joint tenant of land, obtains a partition.

Complaint is the process for the owner of lands flowed by a mill dam.

A bill in equity is the only mode of instituting suits in equity, and is in the nature of a complaint and petition to the equity jurisdiction of the courts.

A libel is the process to obtain a divorce.

A writ is the most common means of instituting a suit at law, in real and personal actions, and it is to the practice in suits commenced by writ, that this treatise will be chiefly confined.

7

CHAPTER VI.

WRITS. FORMS OF WRITS IN GENERAL.

By the Constitution of Massachusetts,' all writs issuing out of the clerk's office in any of the courts of law, shall be in the name of the Commonwealth of Massachusetts: They shall be under the seal of the court from whence they issue: They shall bear teste of the first Justice of the court to which they shall be returnable, who is not a party, and be signed by the clerk of such court.

These provisions are much the same with those of the common law, and are not considered as deriving any additional solemnity or force from being inserted in the constitution, — the only effect of which is to make them unalterable by the legislature.2 The Stat. 1820. ch. 79. s. 3. providing that writs issuing from the Court of Common Pleas shall bear teste of "one of the justices," is so far void.3

The Stat. 1784. ch. 28. s. 3. requires the same formalities to be observed in writs issued by a justice of the peace.

Any mistake in the teste, seal, or signature of the writ, should be taken advantage of at the first term, by plea in abatement, or by motion to dismiss the action; a defect in either particular would be cured by

1 Ch. VI. Art. 5.

2

Ripley, Exor. v. Warren, Admr. 2 Pick. Rep. 592. 3 Ibid.

a general appearance, or by pleading to the merits of the action. It is a general rule, that where there has been any irregularity in the process, if the opposite party overlook it, and take subsequent steps in the case, he cannot afterwards object to the mistake.'

The forms of writs in civil actions are prescribed by statute, and must be pursued in all cases to which they are applicable. In Cooke v. Gibbs,2 Parsons, Ch. J. says, "where the legal remedy sought by the plaintiff may be obtained by a writ conforming to these outlines, he must sue out such a writ, and if the writ he shall sue, materially vary from those outlines, the court may ex officio abate it. But when the remedy he is entitled to cannot be obtained by any writ conforming in its outlines to those prescribed by statute, it has been the ancient and constant practice of the court to grant him a writ, by which he may obtain his remedy. Thus we have no form of writs of error, of review, or of scire facias against bail, or of execution in dower, where a woman has been divorced a vinculo; and yet when the remedy sought, required any writ of these kinds, the court have always granted it.

By an ancient English statute, the masters in chancery, whence all original writs issued, were authorized to form new writs in new cases, that there might not be a failure of justice. In this state, that authority when necessary, has been exercised by the court issuing the writ. Thus when an act passed, directing that

1 1 Tidd. Pract. 276. 2 Black. Rep. 683. S. C.

Hart. Assignee &c. v. Weston, 5 Burr. Rep. 2586. Pearson v. Rawlings, 1 East. Rep. 77. Gilliland v. Morrell, 1 Caines' Rep. 154. Gordon et al. v. Valentine et al. 16 Johns. Rep. 145. Prescott v. Tufts, 7 Mass. Rep. 209. Ripley, Exor. v Warren, Admr. 2 Pick. Rep. 592.

'3 Mass. Rep. 193.

an execution should not issue against the body of a sheriff when in office, the court altered the form of the execution, given by the statute, so as to conform it to this act. By the constitution, no representative shall be arrested or held to bail on mesne process, while attending the General Court, or eundo et redeundo; but his estate may be attached, and when the plaintiff would attach his estate to secure his debt, a writ of attachment may issue, by which the officer is compelled to attach the estate and summon him. By law,

executions do not lie against the bodies or estates of executors or administrators, on judgments against them for the debts of the deceased; and executions have been made conformable to this provision of law. So by Stat. 1783. ch. 32. s. 9, writs of attachment shall run only against the goods or estate of the party deceased in the hands of his executors or administrators, and not against their bodies. According to this section, and a former provincial law, of which it is a revision, writs have frequently issued commanding the officer to attach the goods and estate of a person deceased, and to summon the executor or administrator.'

In the case last cited, the suit was in an action of debt upon a judgment, -an execution had been issued upon it, and the defendant committed thereon, and discharged by taking the oath prescribed by statute. The writ directed the sheriff to attach the goods and estate of the defendant, and to summon him to appear. The court, for the reasons before mentioned, held the writ to be good, though a departure from the form prescribed by the statute, the capias being omitted.

If a capias and attachment in such a case should issue, and the defendant be arrested upon it, he might abate the writ by a proper plea, and an action for false