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Of the remedy against the Defendant by alias and
pluries Attachments.

Although this mode of proceeding against a defendant is seldom or never resorted to of late, (the remedy given by the statute of eighteen hundred and thirteen, being found most convenient, and at the same time, most conducive to the ends of justice,) still it is proper that the student may have some knowledge of it, especially as some occasions may occur in which it may become necessary to adopt it. If the subpoena is duly served and the defendant does not appear, then the complainant may issue an attachment ;(a) if the attach1. Non est ment is returned non est, an alias and pluriés attachment; on an alias and and on a non est on an alias and pluries attachment,(b) an additional process is awarded against the defendant, 2. Attach-an attachment with Proclamation, which besides the orment with pro⚫lamation. dinary form of attachment, directs the sheriff to cause public proclamations to be made throughout the county, to summon the defendant personally to appear, and answer the charges brought againt him.

pluries attach

ment.

S. Commission of Rebeltion.

Should this writ be returned non est, and the defendant still remain in contempt, A Commission of Rebellion is awarded against him for not obeying the state's proclamation.

This commission is usually directed to four commissioners therein named, who are jointly and severally commanded to attach the defendant wherever he may be found within the state, as a rebel and contemner of the laws and government of the same.

Upon the return of a non est upon a commission of Rebellion, the court will despatch their sergeant in search of the defendant; this is ordered on motion to (8) Bart. 71. to 113. (b) Rule 6.

the court on the return of the commission of rebellion.

4. If the de

If the defendant is taken upon any of those pro-fendant is tacesses, he is committed to prison till he enter his ken. appearance according to the forms of the court; and also clears his contempt by the payment of the costs incurred by his contumacious behaviour.

But if he likewise elude the search of the sheriff, a sequestration issues. This, like the commission of rebellion, is awarded on motion grounded on the return of the sheriff, and is directed to certain commissioners therein mentioned, authorizing and commanding them to possess themselves of all his personal estate whatsoever, and the rents and profits of his real estates until satisfaction be made of the plaintiff's demands, and the court shall further order.

tion.

The sequestration is personally served on the tenants 5. Sequestraby two of the commissioners, which is considered as seizing and sequestering under the authority of the writ; an order is then procured for the tenants to attorn to the commissioners, who are amenable to the court for the rents and profits. This order is also served personally. Should the execution of the writ be forcibly obstructed, (c) a writ of assistance may be 6. Writ of sued out, directed to the sheriff of the county, commanding him to assist the said commissioners in such execution.(d)

assistance.

The method of enforcing appearance from a corpo- 7. Distrinration, is by a distringas, on their failing to appear to fas. a subpana, which distringas is awarded against their lands and tenements, and directed to the sheriff of the county or place where such corporate body is resident, after which, if the corporation continue in contempt,(e)

there issues an alias and pluries distringas,(f) and 8. Alias and

pluries.

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lastly, the sequestration is awarded against their lands, &c. as in other cases, with this difference only, that when the sequestration is once awarded against a corporation, it cannot, as against private persons, be stayed on entering their appearance. After order is ob tained for a sequestration against the defendant, the 9. Complain complainant's bill is taken pro confesso, and a decree pro confesso. made accordingly, and the sequestrators proceed under the control and authority of the court, actually to sequester the estates of the defendant, agreeably to the tenor of the writ, in order to make satisfaction to the plaintiff for the injury complained of in his bill.(g)

This writ of sequestration, therefore, as Sir William Blackstone remarks, since it never issues till after the plaintiff has obtained his decree pro confesso, seems rather intended to enforce the performance of the decree of the court, than to be in the nature of a process to bring in the defendant,* and it is the only remedy by the constitution of our courts of equity, that a plaintiff has in ease the defendant absolutely refuse to appear; for unless he come and contest the suit, the court has no authority to investigate the merits of the subject, "nor can there be any proof against an absent person.' The benefit of a sequestration, therefore, which are swers to the primum decretum of the Roman law, or the quantum damnificatus or damages of the common law, is the only satisfaction which the plaintiff can obtain. If however, the defendant either voluntarily or upon a return of either of the preceding processes, appear to the complainant's bill, he is then within a like definite time, limited by the practice of the court, to give in upon oath, the matter he has to offer in his defence,

(g) Barton, 96.

*2 Mad. 163. saya sequestrations are either upon mesne process or after a decree.

pearance, to

and this appears to be eight days exclusive of the day 10. After ap. of appearance, but if it cannot be done in that time, the answer in eight court usually extend it upon application.(i)

Such was the common law remedy of compelling the defendant's appearance when the service of the subpana was not personal, a remedy which, though not resorted to in modern practice, is nevertheless necessary to be known. After service of the subpoena on the wife of the defendant, let the following affidavit be made:

Proceedings against a defendant by alias and pluries

attachments.

days.

In Chancery.

Bet
Between

A. B. Complainant,
and

(C. D. Defendant.

E. F. of the city and county of New-York, maketh 11. Affidavit oath, that he this deponent, did on the

of the service

day of of the subpoena

on the wife of

last past, serve the wife of the defendant the defendant with a subpœna, issuing out of, and under the seal of this honorable court, by delivering a copy thereof to the wife of the said defendant, and at the same time, showing her the original, by which said subpoena the defendant was commanded to appear in this honorable court, the day of

above named A. B.

at the suit of the

E. F.

1818, before me,

Sworn this

day of

I. K. Master in Chancery.

After filing an affidavit of the service of the subpœna on the wife of the defendant, let the following rule for attachment be entered:

(i) Barton, 99-100,

In Chancery.

attachment.

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12. Rule for 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.

13. Attachment.

ment.

Attachment for not appearing.

The people of the state of New-York, free and independent, &c. To the sheriff of the city and county of New-York, Greeting:

day

We command you to attach C. D. so as to have him before us in our court of Chancery, on the of next, wheresoever the said court shall then be, there to answer unto us as well touching a contempt which he, as it 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, Esquire, 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.

14. Endorse. By the court for not appearing at the suit of A. B. After an attachment is issued out and returned non est, let an attachment with proclamation, be issued as follows:

15. Attach

The People of the state of New-York, by the Grace of ment with pro- God, free and independent. To the sheriff of the city and county of New-York, Greeting:

clamation.

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