CHAPTER II.

OF THE COMMENCEMENT OF SUITS AND THE SERVICE AND RETURN OF PROCESS.

1. Or the mode in which suits may be commenced, and the time they are considered as commenced.

2. Of a summons, and the service and return thereof.

3. Of a warrant or capias, and the service and return thereof.

4. Of special bail.

5. Of attachments and garnishments, and of seizing boats, &c.

6. Of general rules, &c.

7. Of suits instituted on agreement of parties.

8. Of suits instituted on motion, &c.

9. Of security for costs by non-residents.

1. OF THE MODE IN WHICH SUITS MAY BE COMMEMCED, AND THE

TIME THEY ARE CONSIDERED AS COMMENCED.

Suits may be instituted before justices of the peace by process, which may be either a summons, warrant, or capias, or an attachment, or by the voluntary agreement of the parties, or on the motion of the justice.

The issuing of the original process of summons, warrant, or attachment, is the commencement of the suit. 1 Scam. Rep., 30. 3 Johns. Rep., 42. 1 Caine's Rep., 69.

In analogy with the practice in courts of record, no doubt, the leaving of a process with the constable's wife, or putting it in the mail, or giving it to a messenger, directed to, and for the purpose of being conveyed to, the constable to be served, would be considered a commencement of the suit. 17 Johns. Rep., 63. 18 Johns. Rep., 14. 1 Scam. Rep., 30.

Where a defendant appears, though the process be void, and he is ignorant of the fact at the time of appearance, yet the court will not, afterwards, set that or the subsequent proceedings aside. 7 Cowen's Rep., 366. Irregularity of process, whether the process be void or voidable, is cured by appearance without objection. 1 Scam. Rep., 250.

2. OF A SUMMONS, AND THE SERVICE AND RETURN THEREOF.

Gale's Stat., 103. Sec. 3. "Every suit before a justice, except such as are hereinafter provided for, in a different manner, shall be commenced by summons, in which summons the justice shall specify a certain place, day, and hour for

the trial, not less than five, nor more than fifteen days from the date of such summons; at which time and place the defendant is to appear; which process shall be served at least three days before the time of trial mentioned therein, by reading the same to the defendant or defendants."

A summons from a justice of the peace to the defendant, to answer for a violation of a town ordinance relative to nuisances, is informal and insufficient; and in such a case it has been held that the plaintiff had not complied with the terms of the statute. Debt would have been most clearly the form of action. 1 Scam. Rep., 290.

If the words "State of Illinois" appear in any part of the summons, it is sufficient. It is not necessary that it should be in the caption. Where a suit was dismissed by a justice of the peace because the words "the State of Illinois" were omitted in the summons, on an appeal, the circuit court allowed the summons to be amended by inserting those words. Held that there was no error. 2 Scam. Rep., 475.

In estimating time for the return of a summons, one day is to be reckoned inclusive and the other exclusive, that is, the day the summons is issued is not reckoned, but the day of the return is. 2 Cowen's Rep., 605. 4 Scam. Rep., 421.

It is proper that ministerial officers, constables, and others charged with the service of process, should state clearly the time and manner of serving such process. And no plea of inconvenience, resulting to others from their neglect, should dispense with its performance. The following return upon a summons, "Executed on the within defendant, by his reading the within. Joseph Flenn, const., M. C.," is insufficient and void. 1 Scam. Rep., 174.

The return of a sheriff should state the manner in which the process was executed. "Executed, Oct. 18th, 1832, as commanded within," is not a sufficient return to a summons. 1 Scam. Rep., 239.

The return to a summons in these words, "Served by reading to the within, Oct. 23, 1832. John Shrigley, high constable, pr. L. Nichols, deputy high constable," is sufficient. 2 Scam. Rep., 457.

Gale's Stat., 421. Sec. 11. "All summons shall be served by reading the same, as contemplated in the third section of the act of which this is an amendment, unless the defendant shall evade the service, and not listen to the same, or secrete himself; then the officer shall serve the same by leaving a copy at his place of residence with some white person of the age of ten years or upwards; and in all such cases, the constable shall make a special return when and how served, and the circumstances attending the same; and if the justice shall be satisfied that the defendant evaded the service by reading, and

that the party is sufficiently notified and summoned, he shall proceed to hear and determine the case."

Gale's Stat., 72. Sec. 30. "Plaintiffs in any action of debt, covenant or trespass, or on the case upon promises, having commenced their action or actions, by summons, may, at any term pending such suit, and before judgment therein, on filing, in the office of the clerk where such action is pending, a sufficient affidavit and bond, sue out an attachment against the lands and tenements, goods and chattels, right, credits, moneys and effects of the defendant, which attachment shall be entitled in the suit pending and be in aid thereof, and such proceedings shall be thereupon had, as are required or permitted in original attachments, in all things as near as may be. The thirtieth section of this act shall apply to attachments issued by justices of the peace as well as those issued by the circuit court."

The word printed "term" in the above section, should have been "time," as appears from the original law on file of the secretary's office.

3. OF A WARRANT OR CAPIAS, AND THE SERVICE AND RETURN

THEREOF.

Gale's Stat., 403. Sec. 4. "If, previous to the commencement of a suit, the plaintiff shall make oath that there is danger that the debt or claim of such plaintiff will be lost, unless the defendant be held to bail, and shall state, under oath, the cause of such danger, so as to satisfy the justice that there is reason to apprehend such loss, the justice shall issue a warrant." Under this statute it is apprehended that the plaintiff would be required to state to the justice the facts upon which he grounded his application for a warrant. The plaintiff should satisfy the justice of the danger that the debt or claim will be lost unless a warrant issue. From the proofs of the facts the justice should be judicially satisfied, and has no right to be satisfied unless upon sufficient proof of the cause of such danger.

Gale's Stat., 419. Sec. 1. "That when any person or persons shall be about to commence an action of trespass or trover, before a justice of the peace, and he, she, or they shall make oath before such justice that he, she, or they verily believe that the benefit of whatever judgment may be recovered in such action, will be in danger of being lost, unless the defendant or defendants be held to bail; upon such oath being made, the justice shall issue a warrant, as in cases for debt, varying the same to suit the action."

Upon a warrant, the defendant is actually arrested and brought before the justice who issued the warrant, 9 Cowen's Rep., 61, unless he enter special bail.

An arrest, technically and strictly speaking, is the actual corporeal seizing or touching the defendant's body; 3 Bl. Com., 288; yet it now seems to be settled, that no manual touching the body or actual force is necessary to constitute an arrest and imprisonment. It is sufficient if the party be within the power of the officer and submits to the arrest. 1 Wend. Rep., 210.

Bare words only, as if the constable say to the defendant that he has a warrant against him and that he arrests him, will not constitute an arrest if the defendant afterwards escapes from the constable; but, if the defendant acquiesces and goes along with the officer, this will be considered as submitting himself to the process, and as complete an arrest as if the officer had touched the person of the defendant. 2 Selw. N. P., 1132.

So, if an officer comes into a room where the defendant is, and, having locked the door, tells him that he arrests him, this is an arrest, for the defendant is in the custody of the of ficer. 1 Selw. N. P., 42.

And it is not necessary that the officer who has the authority, should be the hand that arrests, nor in the presence of the person arrested, nor actually in sight, nor is any exact distance prescribed. It is sufficient if he be bona fide and strictly engaged in the business of the arrest, and he will, for the purpose of authorizing it, be deemed constructively present. 10 Johns. Rep., 85.

The constable being a ministerial officer appointed to carry into effect the laws, of necessity must be clothed with sufficient authority to execute the mandates to him directed, in the name of the people, and, in case of resistance, to require the assistance of as many men of his county as may be necessary to overcome such resistance. Accordingly, it is said, that the constable may (and ought, if need be) take the power of the county, that is, what number of persons he shall think good to aid him to execute, in every behalf, the people's process, be it whatever kind, it being the people's commandment. Dalt. Sheriff, 354. Ritson's Const., 2d Ed., 40.

When the plaintiff resides near the justice who issues the warrant, and the defendant is brought into court, it would be proper that the constable notify the plaintiff of the arrest; but, if the plaintiff do not reside near the justice, it would be well that he authorize some person who does, to attend to the suit for him, and give the constable information thereof.

In an action against an officer for an escape on process, sued out and placed in the officer's hands to execute; or in an action for a false return, or for a refusal to execute such process, it is no justification for suffering an escape, or for making a false return, or for a refusal to execute such process, that the forms of law, in suing out such process, have not all

been observed. If the process be regular on its face, and it be not absolutely void, having been issued without the authority of law, the officer can never be made a trespasser, although it may have been erroneously issued; and he is bound to execute the process, although it may have been erroneously sued out. If the magistrate had jurisdiction of the subject matter, the officer was not bound to enquire further into the accuracy of his proceedings, but should have proceeded to obey the mandate of the warrant. 1 Sam. Rep., 200.

4. OF SPECIAL BAIL.

Gale's Stat., 403. Where a warrant has been issued by a justice of the peace, by sec. 4, "In all cases the defendant shall have a right to release his or her body arrested by virtue of such process, by giving special bail to the constable executing the same, which shall be endorsed on the back of the warrant, in the following form, as nearly as the case will admit, viz: 'I, G. F. acknowledge myself special bail for the within named C. D. Witness my hand this day of 18 G. F. Which endorsement shall be signed by one or more securities, to be approved by the constable taking the same, and shall have the force and effect of a recognizance of bail, the condition of which is, that the defendant, if judgment shall be given against him or her, will pay the same with costs, or surrender his or her body in exccution, and in default of such payment and surrender, the goods and chattels of the bail shall be liable for the payment of the judgment and costs: Provided, That if the body of the defendant shall be renderred in execution by himself or his bail, within thirty days after the issuing of such execution, or if a sufficiency of the defendant's property shall be found to satisfy the judgment and costs, the bail shall be exonerated."

Gale's Stat., 419. Sec. 1. Upon a warrant, issued in an action of trespass or trover, "the defendant may release his body by giving special bail, as in action of debt." And by the same section it is provided, "That in all cases where a defendant shall give special bail under the provisions of this act, or the act to which this is an amendment, and shall not be surrendered on or before the return day of the scire facias (capias ad satisfaciendum was probably intended) upon the judgment, nor a sufficiency of property be found to pay the judgment and costs, within the time aforesaid, it shall be the duty of the justice of the peace, upon the application of the plaintiff, or his agent, to issue a summons against the special bail, in which summons the justice shall specify a certain day, place, and hour for the trial, not less than ten, nor more than fifteen days from the date thereof, at which time and place the defendant is to appear; which process shall be served at least