General or special. Præcipe filed with clerk. returned as the standing pledges. The antient use of them was to answer for the plaintiff, who, in case he brought an action without cause, or failed in the prosecution of it when brought, was liable to an amercement for raising a false accusation. The original writ is either a special original, nominaturs adapted to the nature of the action, or a common original, innominatum in trespass quare clausum fregit. The former is only necessary in the first instance, in suits against corporations.9 A præcipe must be filed with the clerk, before the writ is issued, from which he is supposed to make it out, though in fact it is made out by the attorney, and only given to the clerk to seal. The writ itself is a mere transcript of the præcipe, with the addition of the formal conclusion and commencement. Process on the writ against natural persons.] The first process or proceeding where the original writ is a præcipe quod reddat in actions of account, covenant, debt and annuity, Summons. is a summons or warning to appear according to the exigency of the writ; which is made out by the plaintiff's attorney for the sheriff, and delivered by one of his officers to the defendant, or left at his usual place of abode. This summons is a mere copy of the writ. If the defendant disobey the requisition Writ of at- of the summons, the next process is by writ of attachment or pone, so called from the words of the writ, (which are the same as those used in the original writ of pone,) pone per vadium et salvos plegios, put by gage, and safe pledges.1 This pone or attachment, termed a judicial writ, to distinguish tachment or pone. 7 See Tidd. 118. Finch L. 257. Com. Dig. Pleader, 2. W. 2. 3 Black. Com. 274. Tidd. 104. 118. 1 Bac. Abr. 51. 10 1 Tidd. Pract. 125. 1 Arch Finch L. 189. 252. 3 Black. bold Pract. 328. Finch L. 305. 352. Com. 275. 3 Black. Com. 280. it from the original pone, or si te fecerit securum, because it always issued out of the court into which it was returnable, whereas formerly the original pone issued out of chancery, is the first process in actions of trespass, vi et armis, &c., commenced by pone. The sheriff is commanded by this process, to attach the defendant by taking gages, that is, certain of his goods, which he shall forfeit if he doth not appear, or by making him find safe pledges or sureties, who shall be amerced in case of his non-appearance; and he may either summon him or take gages for his appearance. But a sheriff's officer cannot justify entering the defendant's house under an original writ of trespass, quare clausum fregit, and continuing there till the defendant paid him a sum of money as and by way of surety for his appearance.12 12 11 turn. The sheriff's return to the attachment is either that he has Sheriff's reattached the defendant, or that he has nothing by which he can be attached; in the latter case, the plaintiff may have a testatum pone, or attachment.13 returnable on turn day. It was formerly the rule that the return of original writs Need not be should be on a general or common return day; and if the common re defendant appeared, his return must have been entered on the quarto die post. 101 But it is now enacted,1 that" all process, except where otherwise provided by law, if issued in term, may be tested on any day in that term, and made returnable on any day in the same term or the next term, and if issued in the vacation may be tested on any day in the preceding term, and be made returnable on any day in the next term;" and there is no part of the revised statutes in which it is provided that original writs shall only be returnable on a common return day. Distringas. If the defendant, on being attached, still neglects to appear, a distringas or distress infinite may be issued, commanding the sheriff to distrain the defendant by taking his goods and the profits of his lands, which are called issues.15 These issues might formerly by statute have been sold, but the law authorising their sale is not re-enacted in the revised statutes. If the defendant, on being distrained, still neglects to appear, the plaintiff may have an alias distringas, and then a pluries, and so on, until issues are returned to the amount of the debt.16 Here by the common law, in injuries without force, the process ended: "the defendant," says Blackstone, "if he had any substance, being gradually stripped of it till he rendered obedience to the king's writ; and if he had no substance, the law held him incapable of making satisfaction and therefore looked upon all further process as nugatory." But in cases of injury, accompanied with force, the law provided also a process against the defendant's person, in case he neglected to appear upon the former process of attachment or had no substance whereby to be attached; subjecting his body to imprisonmsnt by the writ of Capias ad re- capias ad respondendum,18 and the plaintiff might in this manner have proceeded to outlawry. This remedy by capias was extended by the act for regulating outlawries to actions ex contractu; but the provision is not embraced in the revised statutes, and all process and proceedings to outlaw any defendant in a civil action are now abolished.19 sponden dum. First process always summons. Procedure against corporations.] In an action against a corporation the first process must, in every case, whether the writ be a præcipe quod reddat or a si te fecerit securum, be by summons; and in actions of assumpsit, the writ should be varied by inserting a command to summon the defendants, in 15 3 Black. Com. 280. 18 Ib. 3. Rep. 12. 19 R. St. P. 3. C. 8. T. 17. s. 15. Vol 2. p. 553. stead of the clause pone per vadios, &c.20 If the writ be defective in this particular, it will be quashed before appearance.21 provisions. The process by distringas may be used in actions against Statutory corporations, as well as in actions against individual persons; but in lieu of this remedy, and to facilitate the proceedings against corporations, it is provided by statute, that "all writs and process against corporations may be issued and tested on any day in term, and may be made returnable on any day in the same, or the next succeeding term, in the same manner as process issued against individuals may be issued, tested and returned."22 "That writs of summons and other process for the commence- Service. ment of a suit against a corporation may be served on the return day of such process, or previous thereto, on the presiding officer, the cashier, the secretary or the treasurer thereof; and if there be no such officer, or none can be found, such service may be made on such other officer or member of such corporation, or in such other manner as the court in which the suit is brought may direct." 1723 when en "That when such process shall have been returned duly Appearance; served, the appearance of the corporation shall be entered and tered. the plaintiff shall proceed thereupon in such suit in the same manner as in personal actions against natural persons."'24 "And that in every such action the plaintiff may declare on Declaration a cause of action which arose previous to the commencement of the suit, although the same may have arisen after the teste of the process by which the action was commenced."25 SECTION II. Parts. Form. OF THE COMMENCEMENT OF ACTIONS BY CAPIAS AD RESPON DENDUM. The capias ad respondendum has hitherto been, and will probably still continue, the ordinary mode, (although one more expeditious, and in some cases preferable, is provided in the revised statutes,26) of commencing actions in this court. It is sometimes called a judicial writ, in distinction to the original writ, because it always issued out of the court into which it was returnable." It is likewise tormed mesne, i. e. intermediate process, because it presupposes an original bill or plaint to have been filed.28 For all practical purposes, the issuing of the the capias has long been regarded as the commencement of the action: it is now expressly made so, by statute.29 The parts of the capias are the commencement, the direction, the command, the return, the cause of action and the teste. The following is the ordinary form of the capias: Seal.] (a) The People of the State of New York, (b) to the Sheriff of the County of Dutchess (or City and County of New York as the case may be,) Greeting: We (c) command you that you take A B, if he may be found 26 Ante, p. 349. 27 See ante. 28 Ante, p. 151. 29 R. St. P. 3. C. 6. T. 1. s. 1. Vol. 2. p. 347. (a) The commencement. (b) Direction. (c) The command. |