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imprisonment would lie against the plaintiff, for causing the defendant to be arrested upon the writ.'

The reason of the departure from the forms prescribed by statute, must appear in the writ itself.2

1Ibid. Willington v. Stearns, 1 Pick. Rep. 497.

2 Cooke v. Gibbs, 3 Mass. Rep. 193. Goffe v. Preston and Trustee, Worcester, Court of Common Pleas, Dec. 1, 1824.

CHAPTER VII.

VARIOUS KINDS OF WRITS.

The forms of original writs in use in our practice are:

1. Original Summons.

2. Capias.

3. Capias and attachment.

4. Summons and attachment.

5. Trustee process.

6. Review.

7. Scire facias.

8. Writ of Dower.

9. Replevin.

10. De homine Replegiando.

11. Audita querela.

12. Ejectment by landlord against tenant.

13. Habeas corpus.

14. Summons in process against forcible entry and

detainer.

15. Summons in process for the speedy removal of

nuisances.

16. Summons in process to recover damages for flowing lands.

SECT. 1. ORIGINAL SUMMONS.

This writ is so called to distinguish it from the summons which accompanies the writ of attachment. The form of it is given in Stat. 1784. ch. 28. s. 1. and for writs returnable before a justice of the peace, in sect. 3. of the same statute. The statute does not specify the cases in which it may be resorted to, but there seems to be no objection to adopting it in all cases, at the plaintiff's election. By the colony law of 1644.'

1 Ancient Charters. Chap. 49.

it was ordered, "that it shall be the liberty of every plaintiff to take out either summons or attachment against any defendant."

The original summons is the most appropriate writ in real actions, and in actions against sheriffs, executors, administrators, &c. when it is not intended to attach property, but there seems to be no case, in which the plaintiff is compelled to adopt it.

The writ simply directs the officer to summon the defendant to appear.

It is proper to observe that the judgment and execution, where this form of writ is adopted, will be in the common form, that is, against the property and person of the defendant, unless something appears on the record, to shew that it should be varied. Thus, if an action of debt should be brought upon a judgment, where the defendant has taken the poor debtor's oath, he should plead in bar of execution against his body, - that he has been discharged in that mode. So also if he has been discharged by order of the creditor, to avoid liability for the expense of supporting him in prison, under Stat. 1819. ch. 94. s. 2.

SECT. II. CAPIAS.

SECT. III. CAPIAS AND ATTACHMENT.

These writs are precisely the same in form-the form being the second one given in sect. 1. of Stat. 1784. ch. 28. and also the second one in sect. 3. in cases triable before a justice of the peace. They differ only in the mode of service. There is a form of summons given with the writ in the statute. With the summons, the writ is an attachment;-without it, a mere capias, or in other words, the precept of the

writ in the form given, being in the alternative, either "to attach the goods or estate of the defendant" or "for want thereof, to take his body," if the writ, with the accompanying summons, is served according to the first command—it is a writ of attachment,— if without the summons and according to the second command, it is a capias. In the case Commonwealth v. Sumner,' the court say "there is no distinction in our statutes, between a capias and writ of attachment; they are one writ with different powers according to the will of him who uses them."

The form of writ now under consideration, is a proper one to be used in all actions, real or personal where the defendant may be arrested if the plaintiff so elect—whether, in the particular case, he so elect, or intend to attach property. So whenever the defendant's exemption from arrest is of a temporary character merely, this form of writ may be used. Thus it may issue against members of Congress, and of the legislature, parties, jurors, and witnesses attending court, although not liable to arrest for the time being, but it must be observed that while the defendant's temporary exemption continues, the writ can only be used as one of attachment.

But where the defendant cannot by law, be arrested at all, this form of writ with the direction in it to take the body, cannot be issued,— and if so issued, whether it were in fact served as a capias or not, it would be abated.

Thus if it were used in suits against corporations, from the impossibility of arresting them, - or against executors and administrators, because they are not personally responsible, being also specially provided

15 Pick. Rep. 366.

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for by Stat. 1783. ch. 23. s. 9.- or against sheriffs for the same reason, they being exempted by Stat. 1783. ch. 44. s. 4. from arrest, or in debt upon judgment, where the defendant has been committed to prison upon the execution, and discharged by taking the poor debtor's oath, in all these cases it would be abated.1

The Stat. 1817. ch. 87. giving remedies in equity, provides, that the bill in equity "may be inserted in a writ of attachment or original summons," and such writs be served as other writs of attachment or original summons are by law to be served." And by Stat. 1823. ch. 140. s. 3. the Justices of the Supreme Judicial Court shall have authority in the cases therein provided, "to issue all such writs and processes as may be necessary or proper to carry into full effect the powers thereby granted."

In the case Commonwealth v. Sumner, the court say it is difficult to imagine why the provision in the statute of 1817, was made, unless to enable the party to obtain security by attachment at least, and if this were the intent, it is not easy to see why the alternative of holding to bail, in case there is a failure of property, should not apply in this case as well as in attachments in common law suits. Considering the obvious inapplicability of an arrest and bail upon a bill praying for a specific performance of a contract, and bills against certain species of trustees, they reserved their opinion whether the process would lie in those cases. They decided, however, that a bill in equity between partners for an account, cannot lawfully be served by arresting the defendant, and the effect of

1 Cooke, v. Gibbs. 3 Mass. Rep. 193.

25 Pick. Rep. 360.

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