will be treated of hereafter, such as writs of review, of error, certiorari, mandamus, audita querela. We have now considered all the forms of writs and other proceedings, known in our practice, which an attorney may employ for the commencement of legal proceedings, in personal actions.

CHAPTER VIII.

SERVICE OF PROCESS.

THE next step in the order of proceeding is the proper service of the process which has been issued. It is a fundamental principle of justice, that nothing should be done or allowed, affecting the rights or interests of a party, without first giving him notice of the time, place and subject matter, so that he may appear and answer. The proper service of process is, therefore, of the first importance. There are some extraordinary cases, as where an injunction is prayed against an impending or inchoate injury, in which notice will be dispensed with in the first instance, but these cases are exceptions to the general rule. Whenever the service of a writ is defective upon its face, it will be dismissed on motion; and if there be no service at all, the Court will, ex officio, abate it. Gage v. Graffand,

11 M. R. 181.

By whom writs may be served. - The general principle is, that all writs and other legal processes shall be served by the sheriff of the county or by one of his deputies, (c. 14, § 68); and they may serve writs upon counties, towns, parishes, religious societies and school districts, though they are members of such corporations, § 69. They are empowered by c. 83, § 11, to execute all legal processes directed to them by the Judge of Probate, and by c. 84, § 3, those issued by county commissioners. Constables may serve pro

cess in any personal action, in which the damages shall not be laid at a greater sum than seventy dollars, (c. 15, § 71,) within his own town, and upon the quasi corporations above named, though he be a member of them, (§ 72); and he may serve writs of replevin, in cases where the sheriff or his deputy is a party, where the value of the property replevied does not exceed seventy dollars, § 73.

Coroners are authorized to serve writs and precepts when the sheriff is a party or interested in the case, (c. 14, § 97); and when the office of sheriff is vacant, they are authorized to perform all the duties of the sheriff, § 99.

These explicit and plain provisions have removed the doubts and difficulties that previously existed. The services of coroners are only necessary where the sheriff is a party or interested, and they would not be authorized to serve a process merely because one of his deputeis is a party or interested. A writ may therefore be served by one deputy sheriff upon another, and should not be served by a coroner. Commonwealth v. Moore, 19 Pick. 340. The mere fact that a deputy is a party to a suit, does not show that the sheriff is interested, (Browning v. Bancroft, 5 Met. 88,) though such may be the case, and it may be shown; but the irregularity is cured by appearing and pleading to the merits, and by neglect to make the motion in a reasonable time; nor will the motion to dismiss be sustained, unless it appear affirmatively, that the coroner had no authority to serve the precept. The Court intimate an opinion that there may be cases in which the sheriff is interested in a suit by or against his deputy, in which it would be proper that it should be served by a coroner. Carlisle v. Weston, 21 Pick. 535; Kit

tredge v. Bancroft, 1 Met. 513. A writ will not be dismissed on motion, therefore, merely because it is an action by or against a deputy sheriff, and is served by a coroner. By former laws, a coroner was authorized to serve all writs in which the sheriff or his deputy was a party, but it will be seen that the law has been essentially changed in this respect.

In regard to other corporations than those expressly mentioned in the statute, such as banks, &c., though the Revised Statutes are silent in reference to them, there can be no doubt that writs by or against them may be served by the sheriff or his deputies, though they be members thereof. Merchants' Bank v. Cook, 4 Pick. 405; Adams v. Wiscasset Bank, 1 Greenl. 360. The commissioners say that no special provision for the case of such corporations was reported by them, because they considered the law settled by the case of Merchants' Bank v. Cook, as above stated, in which it was held, that a deputy sheriff might serve a writ in behalf of a bank in which he was a stockholder. For the conclusive reasons given in the elaborate opinion of the Court in that case, it follows that the sheriff may himself serve a writ under the same circum

stances.

At what time.-Original writs, issuing from the Common Pleas and Supreme Court, must be served fourteen days at least before the term at which they are returnable, and those issuing from a Justice of the Peace, seven days before the day on which they are returnable, c. 90, § 21.

When an action is brought against a town, county, precinct, parish, religious society or school district, or against proprietors of common and undivided lands or of general fields, or of wharves lying in common, the

writ must be served thirty days at least before the return day. Rev. Stat. c. 90, § 22.

If a trustee writ be issued, in which any of the quasi corporations before enumerated are summoned as trustees, the writ must be served upon them thirty days at least before the return day, but service may be made upon others fourteen days before the Court. Howe, 132.

Instructions to Officers. In regard to most writs, in the absence of any special instructions, the officer is required to serve them according to the precept contained in them. They are directed to him, and contain all the directions usually necessary for his guidance. The writ in most common use is in the alternative, directing the officer to arrest the body, or to attach property. In this case, he has an election, to do the one or the other, as he may think fit, and he will be justified in serving it in either mode. Without special instructions, he is not bound to make an attachment of real or personal property, but he may serve it by making a mere nominal attachment. Marshall v. Hosmer, 4 M. R. 60; Almy v. Walcott, 13 Ib. 73.

It is usual, however, to give special instructions to an officer, and it is the duty of an attorney always to give them, where an attachment of property is to be made, to secure the satisfaction of the judgment that may be finally recovered, or where an arrest of the person is important. Such instructions may be written or verbal; but it is highly expedient for the attorney to give them in writing, to avoid disputes and controversies afterwards, and the officer is bound to follow them, if it be in his power. Rev. Stat. c. 90, § 56. If written instructions be given, they may be afterwards modified or changed by parol, and the officer