this decision seems to be, that all proceedings under the statute of 1823, must be by subpoena under the rules adopted by the Court.

SECT. IV. SUMMONS AND ATTACHMENT.

The form of this writ is not given by any statute. It is made by erasing the direction in the common capias or attachment, to take the body of the defendant, and substituting therefor a direction to summon him; in other words, it is an original summons, inserting therein a direction to attach the goods and estate of the defendant.

This form of summons and attachment is used in the cases before mentioned, where a capias is improper, and the plaintiff desires to attach property, as in actions against corporations, sheriffs, executors and administrators, and in debt on a judgment upon which execution has issued and the defendant been committed and discharged.' So it is presumed that this form of writ would be proper in an action before a justice, where the demand is under ten dollars, all persons being exempted from arrest for demands under that sum. So in all actions against females, for the same reason.3

2

3

It might perhaps, be considered that the capias and attachment should issue in common form in all these cases, and the prohibition be laid on the service; but in suits against corporations, and executors and administrators, this would be an incongruity.

Except in the cases above enumerated, this writ should never be used, as it is not prescribed by statute, but allowed only from necessity. It is not unfrequently from inadvertence adopted, particularly in real actions. It is not only liable to be abated by plea or on motion, but it may be doubtful whether an appearance would make it good, and whether an attachment under it would be of any validity.'

In an action Goffe v. Preston and Trustee, decided at the Court of Common Pleas for the county of Worcester, at the December term, 1824, the plaintiff had adopted the form of a writ of summons and attachment. At the March term following, a motion was made by the defendant to dismiss the action, because the process adopted was not conformable to the statute. The motion prevailed, because either of the forms of writs given in the statute might have been adopted, whereas in this case, the writ was neither a summons, or a capias and attachment, but a combination of both, and as this species of action was particularly excepted in the statute giving the trustee process, the case of Cooke v. Gibbs last cited, was a sufficient authority to shew that it was not maintainable.

In order to bring the distinctions among the four preceding forms of writs, the mode of making them, and the cases in which they are respectively proper, into a single view, it may be observed, that although a separate form of an original summons is given in the statute, yet that all four may be made from the form of a capias and attachment, which is the one in most And

common use.

1. That if both the commands, to attach and to ar

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

rest be stricken out, and the words "summon to appear" be inserted, the writ is an original summons.

2. That if the entire form of the writ is used, without the summons immediately following it in the statute, the writ is a capias.

3. That if the entire form of the writ is used together with the following summons, it is a writ of capias and attachment.

4. That if the form of the writ is altered by erasing merely the command to arrest, and inserting "to summon to appear," and is then used with the summons in some cases, and without it in others, which will be discriminated hereafter, the writ is a summons and attachment.

As to the cases in which they should respectively be used.

1. The original summons may be used in all cases whatever, but is not necessarily to be used in any case. It is the most proper form, where the plaintiff cannot or will not arrest, and does not wish to attach ; and it is frequently used in real actions, where, though either an arrest or an attachment may be made, yet neither often is.

2. The capias, or the capias and attachment, should be used in all cases where the plaintiff has an election, of arresting the body or attaching property, and intends to do one or the other.

3. The summons and attachment should be used in those cases where the plaintiff cannot arrest, but desires to attach property.

So that against corporations, sheriffs, executors, administrators, and females, on demands under ten dollars, and in debt on a judgment upon which execution has been issued, and the defendant committed

and discharged, as an arrest cannot be made in any of these cases; an original summons may be used if an attachment is not intended, and a summons and attachment must be used if one is intended. Neither of the other two writs can, under any circumstances be resorted to, in the above cases.

In all other cases both in real and personal actions, as an arrest may be made, the plaintiff may use an original summons, if he intends neither to attach nor arrest; he must use a capias, if he intend to arrest the person, and a capias and attachment if he intend to attach the property of the defendant. In these cases a summons and attachment can never be used.

The use of the original summons being confined, as will be perceived, to cases where an attachment is not intended, the same object may be attained in all cases, by using a capias and attachment, or a summons and attachment, when they would respectively be proper, if an attachment were intended, and making on them a nominal attachment merely, as of a chip, and leaving the common summons. Thus in a real action, for example, if the plaintiff do not intend to attach or arrest, instead of an original summons, he may use the capias and attachment, that is, the same writ he would be obliged to use, if he really meant to attach, and by causing a nominal attachment to be made upon it, his purpose is effected. The same is true of all personal actions, where a capias and attachment is the proper writ.

So against corporations, sheriffs, &c. where the plaintiff does not mean to attach, a summons and attachment, with a nominal attachment, may be substituted for an original summons.

SECT. V. TRUSTEE PROCESS.

This writ is given by Stat. 1794. ch. 65. in cases where the plaintiff wishes to attach debts due to his debtor, or property not attachable by the ordinary process.

The form of the writ, which is also given in sect. 1. of the above statute, is like that of the summons and attachment, with an additional precept, to summon the person supposed to be trustee to shew cause, why the execution that shall issue upon such judgment as the plaintiff may recover in the suit, shall not be levied upon the property of the defendant, in the possession of the supposed trustee.

In what actions may be used.-It is only in personal actions, that this writ is given by the above statute and of these "detinue, replevin, case for slanderous words or malicious prosecutions, and actions of trespass for assault and battery," are excepted.'

The Stat. 1794. confined the use of this writ to personal actions, as above, commenced in the Court of Common Pleas. But now by Stat. 1833. ch. 171. a trustee writ may also be issued from the Supreme Judicial Court, in all cases, where an original writ would lie to that court. And in such case, the writ may be issued under the seal, and signed by the clerk of the Supreme Judicial Court,

A trustee writ cannot be issued by a justice of the peace, or from a justices' court, it not being authorized by any statute.

Against what principal defendant. This writ may

1 Stat. 1794. ch. 65. s. 1.