Imágenes de páginas
PDF
EPUB

must be served, according to the requisitions of the statutes of 1783, 1785, 1804, and 1833, before cited, that is, the same number of days before the return. day, as when returnable to the Supreme Judicial Court or Court of Common Pleas, no distinction having been made by any statute.

A trustee writ can, in no case, be returnable before a justice of the peace.

If the distance between the time of service and return, be less than the law requires, the defect may be taken advantage of by plea in abatement, or by motion to dismiss the action.' But, like other defects in the process, it will be cured by appearance and pleading over.2

SECT. III. WHERE WRITS MUST BE SERVED.

All writs must be served within the respective precincts of the officers who serve them, that is, within their counties by sheriffs, deputy sheriffs, and coroners, and within their towns, by constables.

SECT. IV. INSTRUCTIONS TO, AND RIGHTS AND DUTIES OF THE OFFICER, AS то THE SERVICE OF WRITS.

In general, it is the duty of the officer who receives a writ legally directed to him, to serve the same according to the directions contained therein. Where

1 Bullard v. Nantucket Bank, 5 Mass. Rep. 99.

2 1 Sell. Pract. 239.

the writ given him, contains but a single command, as in the case of an "original summons," by which he is merely directed to summon, or of a "summons and attachment," by which he is commanded to attach and to summon, no special instructions to him are necessary, except in the latter, whether he is to make a real, or a nominal attachment merely.

The only writ in which the command is in the alternative, is the one in most common use, which, as we have seen,' is given in the statute as a "capias and attachment," but which includes the "capias," and the "capias and attachment," and is, in fact, the one or the other, solely according to the mode of service. And when an officer receives such a writ, with no further directions either in writing or by parol, than those contained in the writ itself, he has a legal power to serve it either as a capias, or as a capias and attachment, that is by arresting the body, or attaching the property of the defendant. The usual practice, however, in such a case, where no special directions are given, is to make common service only, that is, to serve the writ as a capias and attachment, but by a nominal attachment merely. The same is true, as to the writ of summons and attachment.

In like manner, if the instructions given, and which are generally written on the back of the writ, be in the alternative, as, for instance, "to attach property or hold to bail," the officer may execute the writ in either way. 2 But if the direction be specific, then, if it be possible, the officer is bound to follow it, and a service in any other way would render him liable.

2

1 Vide ante. page 55, 56.

Marshall v. Hosmer, 4 Mass. Rep. 60. Almy et al. v. Wolcott, 13 Mass. Rep. 73.

From this rule, that the officer is bound only by special directions, while, without them, he has an option as to the mode of service, the plaintiff or his attorney should indorse upon the writ, such direction, as "common service," -"attach property," "hold to bail," or more particular ones, according to circumstances. Such instructions, however, may be given verbally, and will be equally binding upon the officer.

If verbal instructions be given to the officer, by the plaintiff or his attorney, after, and different from, the directions upon the writ, the former must be obeyed, and not the latter.1

par

When an officer has received a legal writ, with ticular instructions to attach property, - if there be reasonable ground to induce him to believe, that in making an attachment, he may mistake, or expose himself to an action for damages, by attaching or seizing goods not the property of the debtor, he may insist upon the creditor's shewing him the goods, and giving him sufficient security, to indemnify him for any mistake he may make, by conforming to the creditor's directions.2

So if the instructions be, to take the body, the officer, if there be any question as to the identity of the defendant, may call upon the plaintiff to point him out, and to indemnify him, against the consequences of a mistake.s

But if the officer do not request the creditor or his attorney to shew him the debtor's goods or person, or to indemnify him, but undertake to execute the pre

1

Marshall v. Hosmer, 4 Mass. Rep. 60. Almy et al. v. Wolcott, 13 Mass. Rep. 73.

[blocks in formation]

cept of the writ, as well as he can, he is answerable to the creditor, if he do not attach or arrest the defendant's property or person, according to the instructions, if they were within his reach, and if the creditor be injured by the neglect.1

If an officer have in his hands a writ with general instructions to attach property, and another writ against the same defendant, is afterwards put into his hands, and particular property pointed out to him by the plaintiff in the second writ, not before known by him to exist as the property of the defendant, he is bound to attach the same upon the second writ, and not upon the first.2

A special direction upon a writ, or special parol instructions to an officer, may justify him in not going beyond them; but they do not deprive him of the legal authority to obey the general command in the precept, to attach sufficient to secure the demand, if he have opportunity to do it, and choose to avail himself of it. Thus if he attach more property than he is specially directed to, he cannot afterwards do any thing to impair such attachment, to the injury of the rights already acquired.3

An officer is bound to tell whether he has any other writs in his possession against a defendant, or has made any prior attachments upon his property, if asked by a person who puts a writ into his hands against such defendant.1

1 Bond v. Ward, 7 Mass. Rep. 123. Marsh v. Gold et al. 2 Pick. Rep. 285.

2 Goddard v. Austin, 15 Mass. Rep, 133. Turner v. Austin, 16 Mass. Rep. 181.

3 Turner v. Austin, 16 Mass. Rep. 181. 4 Ibid.

SECT. V. How WRITS ARE SERVED.

All the original writs which have been enumerated as in use in our practice, may, in reference to the mode of service, be reduced to the four following, namely, original summons, capias,- capias and attachment, and summons and attachment. Thus,

1. Original summons,

2. Capias,

3. Capias and attachment,

4. Summons and attachment,

are indicated by their

names.

5. Trustee process, is a summons and attachment.

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, and
14, 15, 16. The summons

in the several processes
enumerated,1

are each of them, substantially, an original summons, in all cases, except the writ of audita querela, which may also be in the form of a capias and attachment.2

There being, therefore, in reference to the mode of service, only the above named four varieties of writs, the subject of the manner of serving writs may be considered under the four following heads, namely. 1. Service of an original summons.

2. Service of a capias.

1 Vide ante Chap. VII. page 54. 2 Vide ante page 84.

« AnteriorContinuar »