CHAPTER VI.

GENERAL REQUISITES OF WRITS.

We are now to consider that important part of the proceedings in personal actions, denominated the process, which is the foundation of the action, and governs all the subsequent proceedings. The choice of process, where any choice is given, will be regulated by the discretion of the attorney, by the subject matter of the controversy, by the express provisions of the statutes, and by other considerations that will more directly appear in the following chapters.

Suits are commenced in this Commonwealth, in the Courts of common law, chiefly by Writ, and it is to the practice in such suits, that this treatise will be chiefly devoted.

They are also commenced by Libel, which is the proper form of proceeding in the Courts of Admiralty ; and in the Supreme Court for divorce.

On a libel for divorce, it is usual, on the petition of the wife, to order the husband to furnish her with a sum of money, to enable her to conduct her suit or defence, but it is within the discretion of the Court. Quincy v. Quincy, 10 N. H. 272.

By Petition, which is the proper form of proceeding in cases of damage, caused by the location of highways and railroads, and for partition of lands owned in

common.

By Complaint, which is the proper process in cases of flowage.

The Courts have the power to frame new writs, and to make any alterations in the existing forms, when necessary to adapt them to changes in the law, or for other sufficient reasons; but all such changes are subject to the final control of the Supreme Court. Rev. Stat. c. 90, § 8, 9.

The constitution of this Commonwealth, (c. 6, art. 5,) requires that all writs shall be in the name of the Commonwealth; that they shall be under the seal of the Court from which they issue, and 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.

Any defect in these particulars, teste, seal or signature of the clerk, is regarded only as a technical irregularity in the process, and can only be taken advantage of at the first term. Ripley v. Warren, 2 Pick. 592; Gordon v. Valentine, 16 J. R. 145; Foot v. Knowles, 4 Met. 391.

Questions upon these subjects have, however, been made in due time, where the parties have determined to stand upon their technical rights, both in Massachusetts and in other States, where similar requirements exist. A seal is an impression upon paper alone, or an impression made by means of a wafer or of wax affixed thereto. Rev. Stat. c. 2, § 6, 15. A scroll is not therefore a seal in Massachusetts.

In Stevens v. Ewer, 2 Met. 74, it was held, that any seal affixed by the clerk to the writ, as the seal of the Court, is to be so considered, and it was immaterial whether a blank writ be signed by the clerk, or his signature be thereto annexed by his order. In this case the attorney took the seal and signature from one writ, and annexed it to another, by direction of the

clerk. A writ without a seal is a nullity. Hutchins v. Edson, 1 N. H. 139.

All original writs in the Supreme Court and Court of Common Pleas, may be issued by the clerk of the Courts in any county, and run into and be made returnable in any other county. Rev. Stat. c. 90, § 2,

and Act of Amendment, § 35.

The writ in most common use in Massachusetts, as being adapted to the greatest number of cases, is a printed form, sealed and signed by the clerk, which is in these words. "We command you to attach the goods or estate of A. B. &c., to the value of dollars, and for want thereof, to take the body of the said A. B., if he may be found in your precinct, and him safely keep, so that you have him before our Justices, &c." This writ may be, 1, a capias, where it is intended only to arrest the body of the defendant; but an absolute direction to arrest the body, by erasing the alternative direction, is not authorized by the Revised Statutes, and it might not be safe therefore to adopt it, though the body may undoubtedly be arrested, even where the defendant has a large amount of visible property. The Revised Statutes, c. 90, § 3, provide, that the writ may be framed either to attach the goods or estate of the defendant, and for want thereof, to take his body, or it may be an original summons either with or without an order to attach the goods or estate. 2. An attachment and summons only, in which case the words authorizing an arrest of the body may be erased, in which case the writ would be a writ of summons and attachment; and such are all trustee writs. 3. A summons alone, without making any attachment. There is no distinction between a capias and a writ of attachment. They are one writ

with different powers, according to the will of him who uses them. Commonwealth v. Sumner, 5 Pick. 366. In respect to the cases, in which these alterations may be made, it may be remarked,

That where defendants are exempted from arrest, as in the case of corporations, sheriffs, executors, administrators, females, in action on judgments, &c., upon which the defendant has been discharged by taking the poor debtor's oath, jurors, parties and witnesses attending Court, members of the Legislature, and other persons privileged from arrest, the words authorizing an arrest of the body must be erased. The consequences of arresting such persons will be considered hereafter. It would not seem reasonable, at first view, that if the writ were properly served, if a party exempted from arrest were served with process in a proper manner without being arrested, that he should be permitted afterwards to take advantage of the mere want of erasure; but it has been held, that such writ is abatable on plea or motion. Cooke v. Gibbs, 3 M. R. 193; Willington v. Stearns, 1 Pick. 497; Howe's Prac. 52, 58; Cook v. Lothrop, 18 Maine, 260. The reason given for this principle is, that process to arrest the body of a person, whose body is absolutely exempted from arrest, is manifestly erroneous; it is itself an indignity, and, as the officer would be protected by his precept, even if he arrested the party, the danger of abuse is so great, that public policy requires that the writ in such case should be abated. It may be safely stated, as a general rule, for the guidance of practitioners, that the writ should conform substantially to the service which is intended to be made.

Every writ must be directed to an officer authorized

by law to serve it. In some cases, therefore, which will be stated, when we come to speak of the service of writs, it should be directed to a sheriff, or to a coroner, and in other cases it may be directed to a constable. But when a writ is not properly directed, but has been properly served by a person duly authorized by law to serve it, an amendment will be allowed. Hearsay v. Bradbury, 9 M. R. 95. When a writ is directed to a coroner, the reason therefor should regularly appear on the face of the writ; but if the contrary do not appear, and the defendant does not take advantage of it at the first term, he cannot afterwards. Simons v. Parker, 1 Met. 508.

A writ that has been filled up in a suit between other parties, but not delivered to an officer, (Gardner v. Webber, 16 Pick. 251,) or between the same parties upon which an attachment has been made, but no summons left, (Parkman v. Crosby, Ib. 297,) may be filled up and served, and the writ will not be abated or quashed on plea or motion.

The next requisite of a writ, and a most important one, is, that it should contain a declaration. This is one of the peculiarities of our system of practice, in which we have departed from the mode of procedure employed in England, New York and most other States, where the common law has been adopted. The English practice is to file a declaration after the action is entered. In Massachusetts, a writ without a declaration is a nullity. Brigham v. Este, 2 Pick. 420; Ilsly v. Stubbs, 5 M. R. 280. As, in some cases, arrest and imprisonment of the person, or attachment of real and personal estate may be made, it is most important that the defendant should be distinctly apprized of the cause of action against him; that his bail or the per