him to trial: which is undoubtedly the reason why informatious qui tam have been maintained on these statutes.

Where a warrant iffùes from a fingle minister of justice, and the fum in demand, is beyond his jurifdiction, he must bind the defendant to appear at the next court to answer to the complaint, unless it appear on enquiry, that the profecution is merely through mif take, and without any probable caufe.

a Where any corporal punishment is to be inflicted, this is the only kind of action which the private party can bring and join the public in the fuit, for where corporal punishment is to be inflict ed, debt, affumpfit, or action on statute will not lie.

:

I have mentioned the particular ftatutes on which this procefs may be grounded. It is unneceffary to go into a confideration of them all but the profecution on the statute, against committing diforders in the night is fo fingular, as to deferve fome illustration. The ftatute is, that when any diforders and damages are done in the night season, upon complaint fpeedily made thereof to any court, affiftant, or juftice of the peace, they are empowered to iffie forth a writ, or writs to bring before thein any fufpe&ed perfon, or perfons and examine them concerning fuch disorders and damages and if fuch fufpected perfon, or perfons cannot give a fatisfactory account to fuch court, where they were, when fuch diforders and damages were done, and that they had no hand in doing the fame, they fhall be answerable for all damages that the complainant has fuftained, and fuchi finc, or panishment as the court shall order not exceeding five pounds. It is not the object of this ftatute, to create any new offence, or to give to parties a new right of action. It only gives a new form, for the purpose of furnishing a new mode of proof, becaufe of the difficulty of obtaining common law proof, with respect to trefpaffes committed in the night. The mode is, that where the complainant can render it probable, that the perfon fufpected committed the trefpafs, that the burden of the proof fhall be thrown upon him, and if he cannot convince the court of his innocence, he fhall be convicted.

The

Вь

Larrabe, s. Tracy, S. C. 1794

Scott, vs. Terner, Sap. C. 1790.

The complaint must be in the name of the ftate, as well as of the party the facts must be charged direct, and not, that the complainant fufpects the defendant: the injury done must be defcribed in the ufual manner. Tho the facts are thus charged directly against the defendant, yet the complainant is not bound to adduce direct proof: But he must fhew, that the facts were committed in the night feafon; he must prove certain circumftances that render it probable, that the defendant did the facts, and that he is more to be fufpected than any other perfon: the profecution must be commenced in fuch feafon as to give the des fendant a fair opportunity to fhew where he was, and that he did not do the facts, if he is innocent and then under thefe circumftances upon examination, to which he is entitled, if he cannot give the court a fatisfactory account where he was, and that he did not do the facts complained of, the court may find him guilty. This leads to a train of probable and prefumptive proof, upon which a conviction may be very fafe. There can be no doubt but that this procefs, has not only detected, but prevented the commiffion of many injurics in the night; and if courts conduct with proper prudence and caution, there is no danger to be apprehended from it but it is a dreadful weapon in the hands of the weak, the ignorant, and the prejudiced. It is ftrange, that courts fhould be vefted with power to inflict fines, where the conviction is grounded on probable proof-It would have been fufficient to have ordered the payment of damages to the party injured.

formations qui tam, for any matter of a criminal nature, may be profecuted in the county where the complainant dwells, tho the crime was committed in another county.

CHAPTER EIGHTEENTH.

OF THE WRIT AND PROCESS.

HAVING in the foregoing chapters treated fully of the several

kinds of actions that may be brought for the redrefs of civil injuries, I now proceed to unfold the manner, by which these actions be purfued to effect.

a Kirb. Rope 401.

1. I fhall explain the Writ. This is the commencement and foundation of the action.-It contains a command to the sheriff of the county, his deputy, or fome conftable of the town, where the defendant lives, to give notice to the defendant, whofe place of refidence, or dwelling must be defcribed, to appear before fome proper court, the place and time of feffion being mentioned, to anfwer to the plaintiff, whofe place of dwelling must be defcribed in the writ. The writ must be figned by fome magistrate, justice of the peace, or clerk of the court. Under magiftrates may be comprehended, the Govenor, the Lieutenant-Govenor, the Affiftants, and Judges of the fuperior court, who are in virtue of their offices juftices of the peace throughout the ftate, and can fign writs that shall go through the state. Judges of the county court and juftices of the quorum, may by a late ftatute, fign writs that may be ferved in any part of the ftate, if they are returnable to the court to which they belong. Juftices of the peace, and clerks of the county court, can fign writs that are to be ferved and returned to fome court in their respective counties. The authority when they fign writs muft certify, that the duty of fix fhillings has been paid on writs returnable to the fuperior court. Two fhillings on writs returnable to the courts of common pleas : and one fhilling on writs returnable to justices of the peace.

The authority figning writs, mult in cafe of attachments, take fufficient fecurity that the plaintiff fhall profecute his action to effect, and answer all damages in cafe of failure-So he muft in cafe of fummons where it shall appear that the plaintiff is unable to pay a bill of coft, if recovered against him: and if the plaintiff be not an inhabitant of this ftate, bonds for profecution must be taken of fome fubftantial inhabitant in this state.

Where it fhall be found inconvenient and attended with great charge and expenfe, to direct the writ to fome sheriff, or constable, then the authority may direct it to fome indifferent perfon, by inferting his name in the direction of the writ, and his reafon for fuch direction, and this must be done by his own hand, to evidence the direction to be his own act, otherwise the writ will be abateable. A juftice of the peace, may fign a writ in favour of the

Statutes, 3.

Windham, vs. Himptor Sup C 1790.

town

town in which he lives, and may direct it to an inhabitant of that town to ferve as an indifferent person, who is not required by law to take any oath. It is fufficient to name the indifferent perfon and call him such, without describing his place of abode. A direction to a fheriff, or indifferent perfon, is ill; but to a fheriff, and indifferent perfon, would be good.

The certificate of the authority, who figns the writ, of the necef. fity of directing it to fome indifferent perfon, is conclufive evidencee, and the defendant cannot plead in abatement, that no fuch neceffity exifted. This gives them the power to make special deputations when they pleafe, by which the business of known officers inay be materially affected: but they ought to be extremely cautious in exercifing this difcretionary power, and they ought never to do it when known officers can be had by taking proper pains.

The writ which confifts of the mandatory and directory part, with the description of the parties and the court, is to be accom panied with a declaration, containing the fubftance of the action. According to the English practice, the declaration does not go with the writ, but after the return and appearance of the parties it is filed in court. The practice with us feems to have been established at the commencement of our government, and was introduced by ftatute. In treating of the various kinds of actions, I had occafion to enter into a minute confideration of declarations for the purpose of illuftrating the nature of actions. It will be unneceffary to remark further on the fubject in this place; for what remains will be difcuffed in the chapter of pleas and pleadings.

2. Of Procefstachment.

which is of two kinds, fummons and at

1. Summons is merely giving notice to the defendant to appear at fome court defcribed in the writ, and is ferved by the officer's reading it in his hearing, or leaving an attefted copy at the place of his ufual abode. If the writ be returnable to the fuperior or county courts, it must be ferved, at least twelve days inclufive, before the fetting of the court: if it be returnable to an affistant, or justice of the peace, then fix days inclufive: but if it be a suit against

Thacher, vs. Hecock, Sup. C. 1791.

gainst a corporation, returnable to an affiftant, or justice of the peace, the writ must be ferved twelve days inclufive, before the fetting of the court. When the fuit is by foreign attachment, or against fome officer, for a default in his office, as against a sheriff, or constable, on a receipt for an execution, the fervice of the writ must be fourteen days inclufive, before the fitting of the court. In actions on joint fecurites and contracts, where all the defendants are not inhabitants of this state, the fervice of the procefs on fuch of them as are, fhall be fufficient notice to maintain the fuit against all, and if any are aggrieved by the judgment, they may be relieved by audita querela. When a perfon not an inhabitant of this ftate, happens to be here, a fummons may be ferved upon him by reading. If he be not an inhabitant of this ftate, and has an attorney here, fervice may be made by leaving a copy of the the writ with the attorney. All writs returnable to county courts, fhall be returned to the clerks on the day preceeding their feffion.

• Vifible property within this ftate, will give the court jurif diction of actions between perfons belonging to other states, and in like manner invisible property in the hards of a debtor, taken by foreign attachment, muft give the court jurisdiction of actions between fuch perfons.

2. Attachments, are to be ferved and returned within the fame tinue as fummons. The difference between them, confists in the manner of fervice. An attachment contains a command to the officer, to attach the goods or estate of the defendant, and for want thereof, his body, and to have him to appear before the court. When perfonal eftate can be found, it is the duty of the officer to take it, whether fhewn and tendered to him, by the debtor, or not, instead of taking the body, tho offered, and tho he refufes to offer perfonal eftate. If perfonal eftate cannot be had, the officer may take real eftate, but not otherwife. When perfonal eftate is attached, the officer takes it into his cuftody, and may retain it, til fixty days after rendering final judgment. He muft hold it ready to be taken by the execution, and if it be not levied upon within that time, the eftate is difcharged from the attachment. The officer may receipt the eftate to any perfon who will be liable b Kib. Rep. 40;

Ofborne, vs. Lloyd, 1792.