ATTACHMENT. Special Contents. I. How to proceed against the defendant by attachment II. How an attachment is obtained. III. The intervening time between the test and return of an attachment. IV. Affidavit of the service of a copy on the defendant's wife or servant. V. Order for an attachment. VI. Form of an Attachment. SECOND GENERAL HEAD, In relation to the appearance of the defendant. In the preceding part of this treatise, under the title of appearance, having endeavored to point out the mode of proceeding against a defendant, in failure of his entering his appearance where the service of the subpœna has been personal, by taking the bill pro confesso, under this head it is intended to point out the mode of proceeding against him by attachment, where the service of the subpoena shall have been personal or otherwise. 2 service of the If the service of the subpoena is not on the person of 1. When the the defendant, but on his wife or servant, at his dwell- subpoena has ing house or usual place of abode, as it may be, by the or otherwise. been personal, third rule of court, and the defendant does not appear in due time, an attachment* may be issued against • An attachment differs from a capias at common law, in this, that upon a cepi corpus, returned upon a cupias, the sheriff is obliged actually to produce the body of the defendant in court, or he is liable to be amerced under stat. West. 2. c. 39. but in an attachment, it is sufficient if he detain the defendant in custody till compliance. The words of the attachment being only “quod habeas corpus ad respondendum," and not as in the capias, “quod habeas corpus ejus corum nobis ad respondendum Barton." 11 2. How attachment is to issue. an him; to obtain this attachment you file an affidavit with the register of the service of the subpoena, and thereupon, you enter with the register a rule for an attachment, for not appearing. This is a common order, and you are entitled to it, of course; and it may be entered in term or vacation-you obtain a copy of the order from the register, and with it apply to the clerk in court, who thereupon makes out the attachment, which must have at least fifteen days exclusive between 3. Attach the test and return, unless on motion or petition the days between court should order otherwise; it may be returnable in vacation or in term time. (a) ments have 15 the test and return. Proceedings on attachment. In Chancery. Between SA. A. B. Complainant, 4. Affidavit of the service C. D. Defendant. E. F. of the city and county of New-York, of the subpo- maketh oath, that this deponent did on the да last past day of at the suit of the above named A. B. 1818, before me, I.K. Master in Chancery. day of After filing an affidavit of the service of the subpœna on the wife of the above named defendant, let the following rule for an attachment be entered: (a) Rule 6. In Chancery. (A. Between, A. B. Complainant, C. D. Defendant. On reading and filing the affidavit of E. F. and on motion of G. H. solicitor for the complainant, ordered that an attachment issue in the above cause. Form of an Attachment. 5. Order for an attachment. an attachment. The People of the state of New-York: Free and Inde- 6. Form of pendant, &c. To the Sheriff of the City and County of New-York, Greeting: We command you to attach C.D. so as to have him before us in our Court of Chan cery, on the day of next, wheresoever the said court shall then be; there to answer unto us, as well touching the contempt, which he, as is alleged, hath committed against us, as also, such other matters as shall be then and there laid to his charge, and further to perform and abide such order as our said court shall make in this behalf, and thereof fail not, and bring this writ with you. [Witness.] JAMES KENT, Esq. our Chancellor at the city of New-York, on the day of in the year of our Lord one thousand eight hundred and eighteen. Endorsement by the court, for not appearing at the suit of A. B. 1. Defendant retained in ATTACHMENT. Special Contents. I. Defendant returned, taken on an attachment. Il. Body of defendant to be produced in court. III. All defendants in a cause to be named in the same attach ment. IV. Defendant refusing to cause his appearance to be entered. VI. How an Habeas Corpus is to be obtained. VII. When returnable. VIII. Form of an Habeas Corpus. IX. Form of the bond to be given conditioned for the defendant's appearance. Defendant taken on attachment, and the proceedings thereon. WHEN an attachment for not appearing shall be enstody till the Served, the defendant shall be retained in custody there return day un less he shall on to answer the exigency of the writ until the return with one or more sureties day thereof, unless he shall with one or more sufficient give a penal bond for three sureties give a bond in the penal sum of three hundred dol-dollars, to the complainant, conditioned for his ap hundred dol. lars. 2. Body of pearance on the return day of such attachment, according to the command of such attachment, on the return day thereof. If the attachment shall not be returned, the deft to the complainant may enter an order requiring the rebe brought in in fourteen turning officer to bring the body of the defendant in fourteen days after the service of a copy thereof, or that he be amerced fifty dollars. (a) days. 3. All de- That all the defendants in the same cause so liable fendants in the same cause to to attachment for contempt, in the same county, shall the same at be named in such attachment. Vide Bond, post. be named in tachment. All these are common orders, and may be entered of course with the register, in term or vacation. (a) If the defendant shall be taken on an attachment for (a) Rule 10. in 4. Defend con- ant refusing to cause cause his apanswer entered to be pearance to be committed and ant's bill taken not appearing, and shall be brought into court sequence thereof, and shall neglect or refuse to his appearance to be entered instanter, and his to be filed within such time as the court shall then ap- the complainpoint, he shall stand committed until the costs accrued pro confesso. in consequence of his contempt be paid, and the complainant's bill shall thereupon be taken pro confesso against him by default. (b) beas Corpus is awarded against the de. The defendant being apprehended, is detained in be. An Ha custody till he enter his appearance and put in his answer to the complainant's bill, or an Habeas Corpus is fendant. awarded, commanding the sheriff to bring him into court, or a messenger is despatched for that purpose. is to be obtain To obtain this writ, it is necessary to apply by mo- 6. How an tion or petition, generally by motion, for an order for Habeas Corpus a writ of Habeas Corpus to be directed to an officer in ed. whose custody the defendant is confined, commanding him at the return thereof to bring the defendant to the bar of the court, and this is granted of course, producing the attachment or other process with a cepi corpus returned thereon; this order being drawn up, passed, and entered, must be left with the clerk in court who will thereupon make out the writ. 7. When re The return is always on a day certain in or out of turnable. term. There is no limited time between the test and return. Writ of Habeas Corpus. 8. Form of bea Corpus. The people of the state of New-York; by the Grace of the writ of HaGod free and Independent. To the sheriff of the city and county of New-York, greeting, &c. (b) Rule 9th |