goods and chattels of the defendant, and for want there of, against his lands or person. When the plaintiff prays Bonds for out an attachment, a sufficient bond shall be given, con- prosecution. ditioned to prosecute his action to effect, and answer all damages in case he makes not his plea good: and if it shall appear to the authority signing the writ, that he is unable to pay the cost of suit, if a recovery should be had against him, then he shall procure a surety in such bond Surety, when of prosecution. If the plaintiff is not an inhabitant of to be given. this state, or if an inhabitant of this state, and it appears to the authority signing the writ, that he is unable to pay the cost of suit, if a recovery is had against him, then, whether the suit be a summons or attachment, he shall procure surety in a bond from some substantial inhabitant of this state to prosecute his action to effect, and answer all damages, in case he make not his plea good. directed. Direction to an indifferent person. SECT. 2. All process, by attachment or summons, To whom proshall be directed to the sheriff, his deputy, a constable, cess shall he or some indifferent person; but no writ of attachment or summons shall be directed to an indifferent person to serve, till the same shall be complete in all other respects; nor shall it be so directed, unless more defendants than one are therein named, and described to be of different counties in the state; or unless where, in case of a writ of attachment, the plaintiff, or one of the plaintiffs, if there be more than one, or his or their agent or attorney, shall make an affidavit respecting the writ, in the words following: "You solemnly swear (or affirm) Form of oath. that you verily believe the plaintiff, (or plaintiffs, as the case may be) is in danger of losing the debt, (damage, or other thing, as the case may be) in this writ, unless an indifferent person be deputed for the immediate service of the same. So help you God:" which oath the authority signing such writ is empowered to administer; and he shall certify on the writ that he administered the same; for which service he shall be entitled to receive twelve cents, but which shall not be taxed in the bill of costs in which cases, the authority shall insert in the writ the name of the indifferent person to whom it is directed; but need not insert the reason of such direction. And if any writ of attachment, or summons, shall be directed to an indifferent person, except in the cases, and writ and declaration together; and as it gave notice to the defendant of the demand against him, it superseded the necessity of filing a declaration on his appearance. In the revision in 1750, the phraseology is a little varied and it is de clared, that the ordinary process shall be a summons or attachment, fairly written, signed by a magistrate, containing a declaration of the substance of the action. The present statute is varied to conform to the actual practice. Special deputation. Time of service. Service of summons; under the regulations above mentioned, the same shall abate. SECT. 3. The sheriff may depute a proper person, on some special occasion, to serve a particular writ; which deputation shall be entered on the back of the writ; who, after service thereof, shall make oath before a justice of the peace, that he faithfully and truly served the same, according to his indorsement thereon, and that he did not fill up said writ, nor give direction to any person to fill up the same; and such justice of the peace shall certify on the writ that he administered said oath accordingly; and thereupon the service thereof shall be good and valid. SECT. 4. All writs and processes, returnable to the supreme court of errors, the superior court, and county courts, shall be served at least twelve days inclusive before the day of the sitting of the court; and if returnable to a justice of the peace, at least six days inclusive, as aforesaid; or the defendant shall not be bound to make answer thereto. SECT. 5. A summons shall be served, by the officer's reading the same in the hearing of the defendant or defendants, or leaving an attested copy thereof at the place of attachment. or places of his or their usual abode : an attachment shall be served, by attaching the goods and chattels of the defendant, or if none can be found, by attaching the person or lands of the defendant. When an attachment is served, by taking the body of the defendant, notice shall be given to him, by the officer's reading the writ in his hearing, or by leaving an attested copy at his usual place of abode. When any estate, real or personal, is attached, the officer serving the writ shall leave with the person whose estate is so attached, or at the place of his usual abode, if within the state, a true and attested copy of the writ, and of his return, describing the estate attached thereon. And when any real estate is taken, the officer serving the writ, shall leave a true and attested copy thereof, and a description of the estate taken, at the town clerk's office, in the town where the land lies, within seven days next after attaching the estate, and before the time limited by law for the service of such writ expires: and unless the service shall be so completed, such estate shall not be holden against any other creditor, or bona fide purchaser. Stock of incorporated companies, SECT. 6. The rights or shares, which any person may have or own in the stock of any bank, insurance compahow to be at- ny, turnpike company, or other corporation, together with the interests, rents and profits, due, and growing due thereon, shall be liable to be attached, in any action at tached. law, and levied upon and sold to satisfy any judgment and execution. And the attachment of any such rights or shares shall be, by leaving a true and attested copy of the writ, by the officer serving the same, with his proper endorsement thereon, as in other cases, with the defendant, or at his usual place of abode, if within this state, and with the cashier of such bank, or with the secretary or clerk of such company or corporation; and such rights or shares, together with the interests, rents and profits, shall be holden to respond the judgment, which may be recovered in such action, for the term of sixty days after the rendering thereof, and no longer. attached must be levied on, SECT. 7. No estate attached as aforesaid, shall be held When estate to respond the judgment obtained by the plaintiff at whose suit the same is attached, either against the debtor, by execution. or any other creditor, unless such judgment-creditor take out execution on such judgment, and have the same levied on goods or personal estate, within sixty days after final judgment, or on real estate, and have the same appraised and recorded, within four months after such judgment shall have been obtained: or if said goods or estate are incumbered, by any prior attachment, the execution to be levied as aforesaid, within the respective times aforesaid, after such incumbrance is removed. SECT. 8. When the defendant is not a resident or in- Service of habitant of this state, and has estate within the same writs on nonwhich is attached, a copy of the writ, describing the es- residents. tate, shall be left, by the officer, with the agent or attorney of the defendant, within this state; and when land is attached, a like copy shall be left in the office of the town-clerk where the land lies, as in cases where the defendant belongs to this state: but if the defendant has not any agent or attorney within this state, then a like copy shall be left with him, who has the charge or possession of the estate attached. SECT. 9. On writs of scire facias, in which execution Attachment may be issued against the person and property of the de- on scire facias. fendant, on the judgment that may be rendered thereon, the process may be by attachment of the person or prop erty of the defendant, to be proceeded with as to bail, and in all respects, as in ordinary cases. SECT. 10. Officers serving writs shall return them, or Time of recause them to be returned, to the clerks of the courts to turn. which they are made returnable, at least forty-eight hours prior to the day of the session of the court: and writs returnable to justices of the peace shall be returned at least twenty-four hours before the day of trial. SECT. 11. When any process is duly served on any Appearance defendant or defendants, and returned to the court to of defendant. which it is made returnable, if he or they do not appear, Judgment by his or their default shall be recorded, and judgment be default. Continuance ant is out of the state. rendered against them, unless he or they shall come into court, on or before the second day of its session, and move for a trial; in which case he or they shall be admitted thereto, upon paying to the plaintiff his cost to that time; and the action shall be entered anew for trial.(2) SECT. 12. When the defendant, being an inhabitant when defend- of this state, is absent out of the same, at the time of the commencement of the suit, and does not return before the first day of the sitting of the court, such suit shall be continued to the next term; and if the defendant does not return, or appear by attorney, and be so remote that notice of the suit could not have been con (2) In the revision of the statutes in 1672, and which appears to have been the previous practice, it is declared, that the process in the first instance, shall be a warrant, fairly written, under the hand of some magistrate, commissioner, or clerk of the court, mentioning the time and place of appearance; and if the party did not appear, then upon affidavit that the warrant was read in his hearing, or left at his usual abode, an attachment could be granted against him, by the court, for the contempt, and for want of bail he could be imprisoned, returnable to the next court, who could proceed against him according to law. At the same time, a provision was made, authorising creditors, having debts owing to them in money, coin, provision, or other special pay, to attach such estate as was engaged, or any other estate, and secure it for trial. So, the estate of persons not residing in the colony, and the estate of debtors who were about to convey away their estate to defraud their creditors, or to abscond, could be attached. The plaintiff was enabled to declare upon the attachment, if the defendant came in upon it; and the prior attaching creditor was first to be paid. The law also required, that the party taking out an attachment against the person, goods or lands of another, should give security for prosecuting his action. In the revision of 1702, there is an additional regulation, that the court may impose a fine not exceeding twenty shillings, on a defendant guilty of a contempt in not appearing. A power also is given, in all civil actions, to proceed by summons or attachment, against any defendant, his goods and chattels, and for want No Ac thereof, against his lands, or person. tice was required to be given, by reading the writ in his hearing, or leaving a true copy at his place of usual abode, if within the colony, or the action should not proceed but if his place of abode was out of trial, but judgment should not be rendered the colony, the action should proceed to till the next court. As the declaration accompanied the writ, so as to give no. tice to the defendant, when duly served, of the nature of the demand against him, judgment against him, where he did not there could be no injustice in rendering appear, for such sum, as by his non-appearance, he admitted to be due. cordingly, in 1713, it was enacted by statute, that when the process was duly served and returned, if the defendant did not appear by himself or attorney, his default should be recorded, and judgruent jury should be dismissed, he should come rendered against him; unless before the into court, and move for a new trial to which he was entitled, upon paying the ion of 1784, the law required that the plaintiff the cost to that time. In the revisdefendant should, in such case, come into court, on or before the second day of the is entitled to it, upon paying to the plaincourt, and move for a trial; and then he tiff the cost till that time; and the statute then assumed the form which has continued to the present time. In this gradual manner, the practice was introduced, of default, and superseded the necessity of rendering judgment against a defendant on that long and tedious process, which, at common law, was adopted, to compel the appearance of a defendant, before judgment could be rendered against him. veyed to him, such suit may be continued to the next ant has no no SECT. 13. And in every case, where it appears that New trial the defendant had not actual notice of the suit, or a rea- when defendsonable opportunity to appear and make his defence, the tice of suit. court may, on petition, grant him a new trial, if they find he had just ground of defence. SECT. 14. In actions on joint securities, where all the Service in acdefendants are not inhabitants of this state, the service of tions on joint the process upon such of the defendants as are inhabit- contracts. ants of this state, shall be sufficient notice to maintain the suit against all the defendants. And if any of the defendants, on whom the process was not served, shall be aggrieved by the judgment, he may be relieved by a new trial, which the court is impowered to grant, upon a petition for the same, if they shall find, that the defendant has just cause of defence. Continuances SECT. 15. When a suit is brought before a justice of by Justices of the peace, against a defendant who is an inhabitant of the peace. |