exceeding the amount required for his own immediate support, and that the demand in said process, or the principal part thereof, amounting to at least ten dollars, is due him.'

In all actions not founded on contract, or on a judgment on such contract, the original process or writ shall run against the body of the defendant.2

3d. Summons and Attachment. The revised statutes provide that the writ in civil actions, commenced before a justice of the peace, shall be a summons, a capias and attachment. The capias and attachment is in practice, however, a summons and attachment, in cases where the debtor is not arrested, and is to be served, in such cases, by delivery, by the proper officer, to the defendant, of a separate summons, or by leaving the same at his dwelling house or place of last and usual abode. In actions against corporations, and in other cases where goods or estate are attached, but in which the defendant is not liable to arrest, the writ and summons may be combined in one, in which case the service is 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. If the defendant was never an inhabitant of the State, or has removed therefrom, the same rule is to be observed as in case of original summons, before referred to.

When the service of a writ is defective or insufficient, by reason of some mistake of the officer, or of the plaintiff, as to the place where, the time when, or the person with whom the summons or copy should have been left, the court may, if they think proper, order a new summons to be issued and served, in such manner as they may direct; and such service shall be as effectual, as if made and returned on the original writ."

When the name of a defendant is not known to the plaintiff, the writ may issue against him by a fictitious name; and if duly served, it shall not be abated for that cause."

Trustee Process. When a trustee process is issued by a municipal or police court, or a justice of the peace, the writ may contain a direction to attach property of the principal defendant in his own hands,

1R. S. ch. 148, sec. 2.

2Ib. sec. 9.

R. S. ch. 116, sec. 6-ch. 114, sec. 24..

4R. S. ch. 114, secs. 25, 26.

Ib. sec. 48.

Ib. sec. 49.

as well as in the hands of the person named as trustee, and is to be served by reading the writ to the defendant and trustees, or by giving them in hand, or leaving at their last and usual place of abode a copy thereof; and this will be a sufficient service on the principal, whether any trustee is holden or not.'

II. OF THE RETURN.

It is the duty of the officer, serving any precept, to make seasonable return of the same, with his doings thereon, to the magistrate where it is made returnable. He must certify upon the back, a particular statement of the manner in which he made the service, and it is not sufficient that he return generally that he made the service according to law, but he must state the manner in which it was done, that the parties may be informed of their rights, and that the court may judge of the officer's proceedings. And unless such return be made, the case is not properly before the magistrate, and he can exercise no jurisdiction over it; though in many cases of irregularity in service of writs, a general appearance and especially a plea to the action, is a waiver of any exception to the jurisdiction."

The return is conclusive evidence of the fact stated in it, and the magistrate cannot admit evidence aliunde to contradict or control it." After the writ is served, no alteration should be made in it, either by the officer who serves it, or by the attorney.*

And such an alteration makes the writ abateable."

1R. S. ch. 119, secs. 3, 87-ch. 114, 311 Wend. 51.

sec. 26.

22 Pick. 535.

49 N. H. 257.

$2 Conn. 377, 23 Maine, 74.

CHAPTER VII.

OF THE RETURN DAY OF THE WRIT AND PROCEEDINGS BEFORE TRIAL.

I. ENTRY.

The action should be entered on the return day of the writ, at the time and place mentioned in the writ. The entry should also be made before the magistrate personally, and not before any clerk, or other person in his absence, the words of the precept being peremptory, and the statute not authorizing any delegation of authority. When the action is entered, the magistrate should make in his docket a minute of the names of the parties, under which should be minuted such orders and judgments as may be from time to time made in the case.

II. COMPLAINT FOR COSTS.

It is provided by statute that if the plaintiff shall fail to enter and prosecute his action, or if on trial he shall not maintain his action, the defendant shall recover judgment for his costs, to be taxed by the justice.1

If, therefore, the plaintiff does not enter his action, the defendant may make his complaint to the justice, setting forth the facts, and praying for judgment for his costs.

III. DEFAULT.

If any person duly served with process, shall not appear and answer thereto, his default shall be recorded, and the charge in the declaration shall be considered as true.2

And the magistrate may thereupon, and also when the action is on trial maintained, proceed to render the judgment against him. The

custom prevails in most, if not in all the counties in this State, to wait one hour after the hour of the return, in order that the defendant may appear, and then, if he has not appeared, to give judgment against him on default. It has been decided in Connecticut, that such a custom is as much a part of the unwritten law as any part of the common law.'

The Supreme Court of Massachuestts seem inclined to adopt the same rule, though they say that they do not think there is any inflexible rule, that every case of the kind then before them (disclosures under the poor debtor laws) should be proceeded in within the hour appointed, and that, at the moment the hour expires, there is a discontinuance of all cases not then brought before the consideration of the magistrate.2

The same doctrine, that the justice is bound to wait the hour before finally disposing of the case, has been recognized in New York."

And the same courts have gone farther and said, that the magistrate is not obliged then to dispose of the case, but may, at his discretion, extend the time for either party to come in and prosecute or defend.*

This last question has also arisen in New Hampshire, and it has there been decided that a trustee appearing after the hour has expired, but on the same day, and denying his liability, is entitled to have the default taken off."

So that the rule seems well settled that the justice is not obliged to dispose of the matter within the hour, though the plaintiff may request it; but it is always within his discretion, and it may be his duty, to wait longer for an appearance.

IV. ABSENT DEFENDANTS.

When the goods of any person, not being an inhabitant of the State, and having no agent or attorney within the same, have been attached in any action before a justice of the peace, said justice may order such notice to the defendant as justice may require; and such order being complied with, and proof of such notice being made to the satisfaction of the justice, the defendant is held to answer to such suit as in cases where service is made in the usual form.

112 Conn. 390.

23 Met. 568. 320 Johns. 309.

411 Wend. 51.

$9 N. H. 257.
Acts of 1844, ch. 86.

This statute makes no provision as to the mode in which the fact of the absence from the State shall be brought to the knowledge of the magistrate. Ordinarily it will appear, either by the officer's return upon the writ, or by the description of the defendant in the writ, but, of course, may be shown in any other way. The form of notice is not prescribed by statute. It has usually been given in the higher courts, by publishing a copy of the order in some public newspaper; but, where the amount involved is so small as to come within the jurisdiction of a justice of the peace, unless the parties request otherwise, if the place of residence of the defendant be known to the magistrate, a copy of the order sent to him by mail complies with the spirit of the statute, and is attended with less expense.

For the form of such notice to absent defendants, see the forms at the close of the work.

An appearance by the defendant, at the time and place for the return of the writ, or if the action be continued, at the time and place to which it is continued, prevents a default. This appearance may be made, either by the defendant personally, or by attorney. The magistrate should minute on his docket the day of the appearance, and if by any other person than the defendant, the name of the attorney. appearance may be general or special. As the effect of a general appearance is to waive technical objections, the magistrate should be careful, where the appearance is special, to note that it is so.

VI. PLEADINGS, AND MOTIONS TO DISMISS.

An

In all cases, excepting those in which title to real estate comes in question, the general issue must be pleaded.' The proceedings where title to real estate is brought in question will be treated of in a subsequent division of this chapter. The form for a plea of the general issue will be found among the forms in civil proceedings.

The more common practice is to write the plea upon the back of the writ, the plaintiff joining issue, upon the same paper, in the brief form, "and the plaintiff likewise." If the plea is written upon a separate

1R. S. ch. 116, sec. $0.