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CHAPTER XIV.

SERVICE OF A SUMMONS AND ATTACHMENT.

The writ of summons and attachment is also served, by attaching property and summoning the defendant.

The rules as to the attachment of property upon this writ, are precisely the same as those which have been stated in the preceding chapter.

As to the mode of summoning the defendant, there is a diversity among the cases in which this writ is the proper one to be used, which distinguishes the mode of service of this writ, from that of a capias and attach

ment.

We have seen that the trustee process is substantially a summons and attachment,' and that the cases, in which the summons and attachment is the proper form of writ to be used, are against corporations and bodies politic, sheriffs, executors, administrators, and females, on demands under ten dollars, and in debt on a judgment, upon which execution has been issued, -where it is intended to attach property, either really or nominally.2

Trustee process. In the case of the trustee process, the writ of summons and attachment is served in the same manner as an original summons, that is, by reading, or by an attested copy of the writ itself. The

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common summons is never used. This mode of service by reading, or copy, is used in this case, because, it is expressly required by Stat. 1797. ch. 65. authorizing the use of the trustee process. In fact, it is the service of the writ in this mode, upon the trustee, which constitutes the attachment of the property of the principal debtor, in his hands, no actual seizure of it being made by the officer. And as to the principal defendant, the statute above named requires the same mode of service, upon him.

It may be remarked, that by a trustee process, not only may the defendant's property in the hands of the trustee be attached, by the mode of service above named, but the officer may upon the same writ, attach other property of the defendant, if to be found, by an actual seizure of it, as in common attachments. still, in all cases, whether such additional attachment be made or not, the trustee process must be served, both upon the trustee and the principal defendant, by reading or by copy.

But

Against corporations. In like manner, where the writ of summons and attachment is used against corporations, or bodies politic, the writ must be served by reading or by copy, in the manner of an original summons, because it is expressly required by

statute.

In other cases. But in the remaining cases, where the writ of summons and attachment may be used, as there are no special statutory provisions in regard to them, like those in the two preceding cases, there seems to be no reason why the general direction of Stat. 1797. ch. 50. s. 1. "that when the goods or estate of any person shall be attached at the suit of another, in any civil action, a summons, in the form

prescribed by law, shall be delivered to the party whose goods or estate are attached, or left at his or her dwelling house, or place of last and usual abode," &c. should not apply. Under this provision, the common summons is used, where property is attached by a capias and attachment, and it would seem that it should also be used, when an attachment is made upon a writ of summons and attachment, in those cases, where another mode is not specially prescribed.

Care should be taken in these cases, however, not to confound the original summons with the summons and attachment. Either of them may be used, as has already been seen, but the former is served simply by reading, or by a copy of the writ itself, and the latter, by an attachment of property, either real or nominal, and by leaving the common summons.

The common summons, when used with a writ of summons and attachment, must be filled up, and served, in the same manner, as when used with a writ of capias and attachment, and which was stated in the preceding chapter.

CHAPTER XV.

BAIL.

SECT. I. OBJECT AND NATURE OF BAIL.

Connected with the subject of the service of a writ as a capias,' is that of bail, for after the command in the writ to take the body of the defendant, follows the further direction to the officer, " and him safely keep."

The officer, therefore, is bound to keep, as well as to arrest the defendant. And one method of doing this, is, by committing him to the county gaol, which method the officer may, and for his own safety and convenience, will adopt, unless the defendant avail himself of the privilege of giving bail.

The term "bait," is derived from the French "bailler," to deliver, the defendant being delivered to his bail, by the sheriff.

Bail, therefore, arises out of the duty of an officer to keep the person whom he has arrested, and is a substitute, created by law, for actual imprisonment. The bond is taken for the sheriff's indemnity, and is given for the defendant's convenience. Its object is, to insure the defendant's appearance in the suit, and performance of the judgment, without subjecting him to actual custody :- and in its nature, it is a certain form of security established by law, to effect those

1 Ante Chap. XII.

purposes; of which, by complying with its conditions, the defendant may avail himself, as a matter of right.

So that the command to the officer in the writ, in connexion with the right of bail, is "to arrest the defendant, and him safely keep, either by detaining him in actual custody, or by taking from him a legally established bail bond, as the defendant himself may elect. If he offer you such a bond, you must accept it, and discharge him from custody. And if you take such a bond, legal in all respects, you are no further responsible."

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SECT. II. ORIGIN OF THE RIGHT OF BAIL.

At common law, the sheriff was not obliged to let the defendant to bail, on mesne process, but might keep him until he procured his release by a writ of mainprize. But he might let him to bail, though if he did so, he was himself responsible.

This right of the defendant in civil actions, to be admitted to bail on mesne process, and the consequent obligation of the officer, to discharge him from arrest, when proper security is offered, are founded upon the English Stat. 23. Hen. 6. c. 10:2- which, though

11 Vent. 85. 3 Black. Comm. 128. 6 Bac. Abr. 179.

2 This Stat. being the foundation of the law of bail, in this country, the words of its provisions are here given:—

"That every sheriff and other officer, shall let out of prison, all persons by them arrested, or in their custody, by virtue of process in any personal action, upon reasonable sureties, of persons having sufficient within the county, where the persons be so let to bail, to answer according to the exigency of such process except persons so in prison by condemnation, execution, capias, utlagatum, or by special order of any court or justices: and no sheriff or other officer shall take any obligation for any cause aforesaid, or by color of their office, but only to them

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