9. Of the service of subpoenas, notifications, &c.

Clerks of the courts, or town clerks, are authorized to issue subpoenas to compel the attendance of witnesses which should be directed to the person to be summoned. The mode of service is not prescribed by any statute. The practice is to have them served by any person, even by the party himself. The service may be proved by the affidavit of any disinterested person. The most regular method, however, is to have them served like any original summons by a regular certifying officer either by leaving a copy with the witness, or at his place of abode, or by reading it in his presence and hearing, a reasonable time before the attendance of the witness is required; and the officer should make return thereof, upon the original.

The process will not be compulsory, unless there be tendered to the witness his legal fees for travel to the court, and one day's attendance.

If the witness do not appear, upon summons regularly served, he is liable to the action of the party aggrieved by his absence. And the court or justice have power to compel the attendance of such contemptuous witness by an attachment, and to fine him for his contempt in a sum not exceeding $20, and the costs of attachment.-Stat. 1784, ch. 28.

Justices of the peace are likewise authorized to grant subpoenas for witnesses in all civil actions pending before the supreme judicial court, court of common pleas, county commissioners, or before any other justices and in all causes pending before referees or abitrators.Stat. 1783. ch. 42. sect. 5.

So, in any cause pending in a probate court.-Stat. 1826. ch. 86.

10. Of notifications for the taking of depositions.

After the defendant is notified of the pendency of an action, by the service of the writ upon him, either party may cause to be taken the deposition of any witness living more than thirty miles from the place of trial by the court or referees, or who shall be about to be absent from the State, or who shall be so infirm as

not to be able to travel and attend at the trial. Stat. 1797. ch. 35,

An order of notice to the adverse party or his attorney, setting forth the time and place for taking the deposition, the names of the parties, and the causes of taking it, is in all cases to be served upon the adverse party. Stat. 1817. ch. 181.

This notification may be issued by the justice who is to take the deposition, or by any other justice in the commonwealth, or notice may be given verbally by the justice who is to take the deposition, or may be dispensed with, if the adverse party or his attorney shall waive the same in writing.-Ibid.

The service must be by leaving an attested copy of the notification, at the last and usual place of abode of the party or his attorney, allowing time for his attendance at the rate of one day, Lord's day exclusive, for every twenty miles travel. And it may be proved by the affidavit of a disinterested witness, or by the return of the sheriff, his deputy, or a constable of the town where the adverse party or his attorney shall live. Stat. 1797. ch. 35,

The witness is to be summoned by a subpoena, and the service made and proved in the same manner, as the notification above described. The witness must have tendered to him his fees, to wit, thirty four cents for his attendance, and four cents a mile for his travel.-Ibid.

If such witness neglects to appear, he shall be subject to the same penalty and attachment for contempt, as is provided by law when witnesses are summoned to court and do not attend.-Ibid.

The service of the notification and summons, in the case of taking depositions in perpetual remembrance of a thing, is to be made and proved in the same manThe justices must certify the names of the persons notified.-Ibid. 1817, ch. 181.

ner.

The officer should make return of his doings to the justice by whom the deposition is to be taken, with a certificate of his fees.

Where there are several plaintiffs or defendants in the case, notice upon one is sufficient.

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Many depositions are taken, having relation to the settlement of paupers, in such cases, it is sufficient to notify one or more of the overseers of the poor of the town interested.

11. Of the service of notifications upon creditors of such debtors as are desirous of taking the oath for the relief of poor prisoners confined in jail for debt.

When any person who stands committed upon an execution from any court in the Commonwealth, shall complain, that he hath not estate sufficient to support himself in prison and pay prison charges, the keeper of the jail, shall make application to a justice of the peace, who shall thereupon forthwith make out a notifi cation in writing under his hand and seal, thereby signi fying to the creditor or creditors such prisoner's desire of taking the privilege and benefit of the act, and of the time and placé appointed for the intended caption of the oath or affirmation, and which shall be served on the creditor or creditors, if he, she, or they live within the Commonwealth, his or her executor or administrator; and if such creditor or creditors live out of the Commonwealth, upon his or their agent or attorney, who brought forward the suit, upon which the execution issued. The service is to be made by the sheriff or his deputy of the county, or by the constable of the town, where the service is made, either by reading the same to him or her, or by leaving an attested copy thereof at the usual place of abode of such creditor or creditor's agent or attorney, at least thirty days before the time appointed for taking the oath.-Stat. 1787. ch. 29.-1811. ch. 85.

If any creditor or creditors live out of the Commonwealth, and have no agent or attorney living within the same, then an attested copy of the notification, may be left with the clerk of the court or the justice who issued the execution, thirty days before the time set for taking the oath.-Stat. 1819. ch. 130.

The notification in this case, is considered as a subpœna, or notification for taking a deposition, and it is not an illegal or improper practice for a justice of the peace to leave blanks, under his hand and seal, to be

filled up by any other person, under the instructions of the justice.-3 Pick. 407.

Wherefore it is apprehended, that when the justice commits the notification to an officer for service, he may direct the officer to insert the day for taking the oath. The creditor must have thirty days notice exclusive of the day appointed for taking the oath, and the officer must be cautious that the return day does not fall on Sunday. The officer who undertakes this duty is responsible for its faithful execution. The fees allowed by law for service and travel, are the same as for the service of a writ.

T. Of the time of making service of

process.

Usually the precept directs the officer within what time the service shall be performed. But a general summary may not be inconvenient to inexperienced officers.

Original writs issuing from a justice of the peace must be served seven days, before the return day.

If from the supreme judicial court or court of common pleas, fourteen days.

If against corporations, thirty days before the return day.

Processes from the probate court and court of county commissioners, generally fix the time within which service must be made.

Many precepts, as subpoenas, notices and the like require to be served in a reasonable time, unless the period is specified either in the precept or by statute. Executions issuing from justices of the peace are made returnable in sixty days from the date.

Such as issue from the court of common pleas shall be made returnable to the next term of the court holden within the county, excepting where there are but two or three terms in a year, when they are made returnable in three months unless a term of the court should intervene, when they must be made returnable to the next court.

Such as issue from the supreme judicial court shall be made returnable to the next term of that court, if

two terms are held within the year, otherwise they are made returnable in six months, unless a term intervenes, in which case they are made returnable to the next term of the court.-Stat. 1783. ch. 57.

Warrants from justices of the peace, for criminal offences, are required to be served and returned forthwith.

Criminal processes from other courts, must be served without delay, but are not returnable, until the next term of the court, from whence they issued.

U.

Of the duty of an Officer to receive the surrender of a debtor upon the request of his bail.

By the common law, if a debtor is discharged from his arrest upon bail, it is not in the power of the bail, or of the party to surrender him again into the custody without the consent of the officer. Although the officer is at liberty to accept the surrender, if he pleases, and so discharge the bail bond.-1 East. 390.

But by our law, the bail may surrender his principal in court, while the action is pending, at any time before final judgment on scire facias.-14 M. R. 115.— Stat. 1784, ch. 10.

If the action is before a justice of the peace, at any time before judgment in the original suit, or upon the return of the scire facias, and before final judgment thereon, the bail may bring his principal before the justice, and procure the attendance of the sheriff, his deputy, or a constable of the town, to attend to receive the debtor, whereupon the justice shall order him into the custody of the officer, with a warrant or mittimus, in the form prescribed by the statute, and on payment of the costs of scire facias, the bail shall be discharged. -The debtor shall stand committed in the same manner, as if surrendered in a court of record.-Stat. 1803. ch. 132.

The law makes it the duty of the officer to attend, and gives him the same powers to act, and exposes him to the same liabilities for neglect as is provided in