the nonjoinder of a party who should have been co-plaintiff, is ground for a nonsuit. But in the case of executors, assignees, and others serving jure representationis, and in all cases in action ex-delicto, the defendant, if he would avail himself of the omission, must plead it in abatement.'

Defendants. In actions ex contractu, all jointly liable should be joined as defendants; but if there be an omission, the defendants named in the writ can only take advantage by a plea in abatement : and in actions for torts, in general, no advantage can be taken of the nonjoinder of a defendant."

VII. OF THE DECLARATION.

Every writ must contain a declaration, consisting of one or more counts, containing the plaintiff's cause of action. This is a part, and necesary part of the writ, and therefore if a writ be made without a declaration, it is fatal, and cannot be amended by filing a count, because there is nothing to amend."

11 Chitty on Pl. 7, 13, 51. 21 Chitty on Pl. 24, 74.

32 Pick. 423, 4.

CHAPTER VI.

OF THE SERVICE AND RETURN OF THE WRIT.

Ir has been already laid down, that unless the writ be properly served, and a return made showing such service, the justice fails to obtain any jurisdiction, and his proceedings are not only void, but he is personally responsible for them, unless, in some cases, the defendant shall waive the objection. It is important, therefore, for the magistrate, both to know what is a proper service and return, and whether in each case brought before him, such service and return have been made.

I. OF THE SERVICE.

When. No person shall serve or execute any civil process, from midnight preceding to midnight following the Lord's day; but such service shall be void, and the person serving or executing such process, shall be liable in damages to the party aggrieved, in like manner as if he had no such process.'

The writ must be duly served not less than seven, nor more than sixty days, before the day therein appointed for trial.2

In actions against counties, towns, parishes, religious societies and all other corporations, the writ must be served thirty days before the sitting of the court to which the same is made returnable.3

Upon whom. The writ should be served, in case of individuals, upon all the defendants, and in case of trustees, upon all the trustees, within the jurisdiction.*

Corporations. When a suit is brought against a county, the summons shall be served by leaving an attested copy thereof with one of the county commissioners, or with their clerk; and in all suits against the inhabitants of any town, parish, religious society, or school district, by leaving a copy with the clerk, or one of the selectmen, or assessors

R. S. ch. 114, art. v. *R. S. ch. 116, sec. 6.

3R. S. ch. 114, sec. 44.
416 Mass. 303.

of the corporation sued, if there be such officer; if not, with any member of such corporation. In suits against all other corporations, the summons shall be served by leaving a copy of it with the president, or clerk, cashier, or treasurer, or any general agent or director, as the case may be, of the corporation sued; if there be no such officer or agent found within the county where such corporation is established, or where its records or papers are required by law to be kept, such copy may be left with any member of the corporation.'

How. It has already been seen that there are but three general kinds or classes of writs known in our practice. The service of each of them will be considered in this chapter.

1. Original Summons. In all cases where the process is by original summons, as against executors, administrators, guardians, and in all other civil actions, wherein the law does not require a separate summons, the service, by the proper officer, will be sufficient, either by reading the writ or original summons to the defendant, or by giving him in hand, or leaving at his dwelling house or place of last and usual abode, a certified copy thereof. Writs against towns, however, and other corporations must be served by copy, as stated above. If the defendant was never an inhabitant of the State, or has removed therefrom, then the copy shall be left with his tenant, agent, or attorney.* If a defendant, whose goods have been attached upon a writ, not being an inhabitant of the State, has no agent or attorney within the same, the magistrate may order such notice to him as justice may require.3

2. Capias or attachment. The precept in this case commands the officer to attach the goods or estate of the defendant, and for want thereof to take his body. If the first alternative of the precept is followed, the writ is a writ of capias and attachment, if the last, it is a capias.*

But when the plaintiff has once made his election how the writ shall be served, and service has been made, he shall be bound by it. Thus, where the body of the defendant was taken on the writ, and afterwards property was attached on the same writ, the court said it was clear that by law an officer could not take both body and estate; that when he had

1R. S. ch. 114, sec. 41.

2Ib. sec. 27.

3Act of 1844, ch. 86.

45 Pick. 356.

taken the body, the writ became functum officio, completely executed, and no further proceedings could be had thereon by the officer, except to complete his return.'

And where property was attached, and afterwards the defendant was arrested, but before the last day of service summons was served on the defendant, and the officer returned service by attachment and summons, and made no mention of arrest, held that the service was good, as the arrest was void."

By "arrest" is to be understood to take the party into custody. It is so used in works of authority. An arrest is the begining of imprisonment, when a man is first taken and restrained of his liberty by power or color of a lawful warrant.'

If service be made by arrest, and the arrest be void, either because the defendant be exempt from arrest, or for any other reason, and no other service be made on the defendant, the writ should be dismissed for want of proper service, unless he appears, and waives the objection; for service not having been made according to law, the whole service is void, and the defendant has received no legal notice to appear and answer to the suit of the plaintiff.

It is not lawful to arrest, on mesne process, in any case where, after judgment, the body of the debtor is not liable to be taken in execution.*

No person shall be arrested in any civil action, on mesne process or execution, on the fourth day of July, or on the day of the annual fast or thanksgiving.

On the day of any military training, inspection, review, or election, no officer whose duty it may be to attend, and no soldier who is enrolled as such, and shall have been duly notified to attend on said days, shall be arrested on mesne process or execution."

All persons are liable to be arrested, unless specially exempted."

The constitution of the United States provides that senators and representatives in congress shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to, and returning from the same.

13 Mass. 561.

213 Mass. 73.

31 Met. 504.
45 Green. 291.

R. S. ch. 114, sec. 101.

Ib. sec. 102.

"Howe's Pr. 142.

The constitution of Maine provides, that the senators and representatives shall in all cases, except treason, felony, or breach of the peace, be privileged from arrest during their attendance at, going to, and returning from each session of the legislature.'

Electors are also, with the same exception, privileged from arrest on the days of election, during their attendance at, going to, and returning therefrom.

So a juror, or a party, or one commanded by due process of law to attend as a witness, is free from arrest while attending, or going to or from court, or a reference. And it is said that any party whose duty brings him to court is in the same manner privileged from arrest.* A writ of protection, in such cases, may be issued by the court, but this is not essential, excepting so far as it serves to give notice to the officer."

A poor debtor, after discharge under the act for the relief of poor debtors, is free from arrest for the same debt, unless he shall, having disclosed property on his examination, transfer, conceal, or otherwise dispose of the same, or refuse to deliver the same to the proper officer, so that the lien of the creditor cannot be enforced, or unless he shall wilfully disclose falsely in respect thereto."

And generally, as before stated, a debtor cannot lawfully be arrested on mesne process, where after judgment, his body is not liable to be taken on execution."

If in any of these cases an arrest be made, or if one be made on a precept not containing the command to take the body, the arrest is void, and, as we have already said, if no other service be made on the defendant, the writ should be dismissed for want of proper service, unless he appears and waives the objection."

Before any arrest can be made upon mesne process, in any suit brought on any contract, or on any judgment founded on a contract, the creditor, his agent, or attorney, must make oath before a justice of the peace, to be certified upon such process, that he has reason to believe, and does believe, that such debtor is about to depart and reside beyond the limits of the State, and to take with him property or means

1Const. art. iv. (part first) sec. 8.

2Const. art. ii. sec. 2.

$3 Mass. 288-6 Mass. 264.

43 Mass. 288-2 Wend. 257.

56 Mass. 264.

6R. S. ch. 148, secs. 32, 34, 47, 48.
75 Green. 291.

82 N. H. 468.