CHAPTER III.

FORMS OF WRITS.

1. The forms of writs in civil actions remain as established; but the supreme judicial court, by general rules, may make such alterations therein, for all courts, as changes in the law or other causes require.1

2. The writ in civil actions, commenced before a trial justice, shall be a summons, a capias and attachment, or scire-facias, of the form prescribed by law, and signed by the justice.2

3. Writs issued by a trial justice or judge of municipal or police court, shall be signed by him and sealed.

4. All writs of scire-facias may contain a direction to the officer serving them, to attach the property of the defendants and to arrest their bodies when liable to be arrested, the same as in writs of attachment.1

5. Original writs issued by any trial justice may be made returnable before any other trial justice of the same county, and shall have the same effect as if signed by the latter justice.5

6. No writ shall be made returnable before any trial justice, at an earlier hour than nine o'clock in the forenoon, nor later than four in the afternoon.6

7. In cases of scire-facias against bail, indorsers of writs, executors or administrators, in all trustee processes, or original writs against two or more defendants, before a trial justice, or a judge of a municipal or police court, where the defendant or trustee resides out of the county where the proceedings are had, the justice or judge may direct the writ or execution to any proper officer of the county where the defendant or trustee resides."

1 R. S. c. 81, § 1.-2 R. S. c. 83, § 6.-3 R. S. c. 81, § 3.-4 R, S. c. 81, § 4.—5 R. S. c. 83, § 9.6 R. S. c. 83, § 10.-7 R. S. c. 83, § 23.

(a) Original Summons.

STATE OF MAINE.8

[Name of county in which returnable], ss.

To the sheriff of our county of [name of counties in which writ is to be served] or either of [his or their] deputies, or either of the constables of the town of [name of town in which some one of the defendants resides or is commorant] in the county of―, GREETING.

[L. S.] We command you that you summon [defendant's whole Christian and surname, if known, otherwise, an assumed name], of [name of defendant's place of residence, including town and county] addition, that is, yeoman, esquire, gentleman, &c., as the case may be], (if he may be found in your precinct), to appear before [name of the justice before whom the writ is returnable], esquire, a trial justice in and for the county of [name of justice's county] at his [dwelling-house, office, or other suitable place], in [name of town where court is to be held] in said county of [name of justice's county], on [day of week on which writ is returnable], the [day of month of return day], day of [name of month in which writ is returnable], in the year of our Lord one thousand eight hundred and [year], at [name of any hour between 9 A. M. and 4 P. M.] o'clock, [fore or after as the case may be] noon; then and there to answer unto [plaintiff's Christian and surname], of [name of plaintiff's place of residence, including town and county], [addition, as in case of defendant], in a plea of [the case, trespass, replevin, &c., as the case may be] [declaration].

To the damage of the said [ plaintiff's name] (as he sa-) the sum of twenty dollars, which shall then and there be made to appear with other due damages. And have you there this writ with your doings thereon.

Witness [name of justice who signs the writ], esquire, a trial justice in and for said county of [name of justice's county], at [name of justice's town] in said county of [justice's county] this [actual date]. [Signature of the Justice], Trial Justice.

9

(b) This form of writ may be used in all cases in which an original writ is proper when the attachment of property is not desirable; and should be used in an action against an administrator, on a claim disallowed by commissioners of insolvency; 10 for the writ in such case should contain no order to attach the goods of the intestate; 10 although if it does and the defendant neglects to take advantage thereof in abatement, the objection is waived.10 But an original summons is seldom used except in actions against counties, towns, school districts, parishes, and religious societies, all of which are known as quasi corporations, and other corporations. 11

Pub. Laws 1821, c. 63, § 1. Howe's Pr. 55.-10 Thayer v. Comstock, 39 Me. 140.11 R. S. c. 81, § 18.

(c) Capias or Attachment.

STATE OF MAINE.

[County where returnable,] ss.

To [directed same as original summons].

12

[L. S.] We command you to attach the goods or estate of [defendant's Christian and surname, if known, otherwise, an assumed name], of [name of defendant's place of residence, including town and county], [addition, that is, yeoman, esquire, gentleman, &c., as the case may be, to the value of twenty dollars, and for want thereof to take the body of the said [defendant's name] (if he may be found in your precinct), and him safely keep, so that you have him before [name of the justice before whom the writ is returnable], esquire, a trial justice in and for the county of [name of justice's county], at his [dwelling-house, office, or other suitable place] in [name of town in which court is to be held], in said county of [name of justice's county], on [day of week on which writ is returnable], the [day of month of return day], day of [name of month in which writ is returnable], in the year of our Lord, one thousand eight hundred and [year], at [name of any hour between 9 A. M. and 4 P. M.] o'clock [fore or after noon, as the case may be]. [The remainder same as in original summons.]

(d) This form of writ may be used in all actions which may be commenced by original writs, against all individuals in their private capacity, except married women,18 and except as follows: It cannot be used as a capias in suits on contracts, express or implied, wherein the sum demanded does not amount to ten dollars, 14 or on a judgment on such contract, wherein the debt, originally recovered and remaining due, is not ten dollars or more exclusive of interest; 14 or on suits on such contracts, wherein the sum demanded does amount to, at least, ten dollars, or on a judgment on such contract wherein the debt originally recovered and remaining due is not ten dollars, at least, exclusive of interest, unless the debtor is about to abscond from the State and the creditor makes the certificate provided in the second section of-C. 113, R. S.; 14 or on a judgment founded on a former judgment, when the debtor has been once arrested on the original cause of action, and either been voluntarily discharged by the creditor, or discharged on disclosure without fraud or false disclosure.15

(e) It cannot be used as a capias against quasi corporations, private corporations, sheriffs, 16 executors, and administrators 17 for debts due from the deceased whom they represent,17 nor against debtors who have legally disclosed and been discharged on mesne process or execution founded on the same cause of action, except as provided in R. S. c. 113, §§ 38 and 50;18 nor against other persons whose bodies are temporarily exempt from arrest,19 unless the exemption is removed prior to the serIvice of the writ.20

12 Pub. Laws of 1821, c. 63, § 1.-13 R. S. c. 61, § 4.-14 R. S. c. 113, §§ 1, 2.15 R. S. c. 113, §§ 34, 35.-16 R. S. c. 80, § 17.-17 R. S. c. 87, § 1.-18 R. S. c. 113, $34.-19 R. S. c. 81, §§ 76, 77, 78; Const. of Maine, Art. IV, Part 3, § 8; Const. of U. S., Art. I, § VI, Part I.-20 Howe's Pr. 56.

(f) Summons and Attachment.

The form of this writ is not given in any statute, but it is a writ more commonly used than any other. Its form is substantially the same as a capias and attachment by substituting a direction to summon the defendant for that of arresting him. So that this writ is an original summons with an order to attach the defendant's goods and estate, and is expressly authorized by the statutes.21

This writ, as well as the capias and attachment, is accompanied by a separate summons, in form as follows: 22

[Summons when goods are attached.]

STATE OF MAINE.

[Name of county as in writ], ss.

To [name of the defendant] of [name of town in which the dedefendant resides, of our county of [name of county], [addition]. GREETING:

[L.S.] We command you that you appear before [name of justice before whom writ is returnable], esquire, one of the trial justices in and for the county of [name of county for which the justice was appointed], at his [dwelling-house, &c., as in the writ]; in [name of the town as in the writ], in the county of [name of the county as in the writ], on the [day of the month as in writ], of [name of month], in the year of our Lord one thousand eight hundred and -, at [hour as in writ] o'clock [fore or after] noon; then and there to answer to [name of the plaintiff, his town, county, and addition as in writ], in a plea of [name of plea in the declaration]; which plea the said plaintiff's name] hath commenced against you, to be heard and tried before the said [justice's name]; and your goods or estate are attached to the value of twenty dollars, for security to satisfy the judgment which the said [plaintiff's name] may recover upon the aforesaid trial. Fail not at your peril.

Witness [name of justice who signed the writ], Esquire, at [name of town where such justice resides], in the county of [name of county in which the signing justice resides], the [true day of month of the date] day of [true month], A. D. 187–.

[Signature of the Justice], Trial Justice.

(g) The service of a writ by a coroner, being a special authority, and not coming within his general duties, all the facts necessary to give that officer the power should appear in the writ itself; and a general direction to him is not sufficient. 23 Thus it must allege that the sheriff of the county, or his deputy, is a party, 24 or that the office of sheriff therein is vacant.24

(h) Hence if one of the parties in a writ is alleged to be sheriff of the county in which the writ is returnable, or his deputy, the direction may be simply, "To any coroner in and for the

21 R. S. c. 81, § 2; Cleaves v. Jordan, 34 Me. 9; R. S. c. 81, § 16.-22 Public Laws of 1821, c. 63.-23 Carlisle v. Weston, 21 Pick. 535; Case v. Humphrey, G Conn. 139. 24 R. S. c. 80, § 42; Public Laws of 1872, c. 14.

county of, and to any constable,” &c., as in the form of writ. If there be a vacancy in the office of sheriff in the county, the direction may be, "To any coroner in and for the county of there being a vacancy in the office of sheriff for said county."

8. Writs issued by a trial justice or judge of municipal or police court shall be signed by him and sealed.25 The word "seal," as used in the statute, may mean an impression made on the paper for that purpose with or without the use of wafer or wax.26

(i) In the commencement of actions, each party should be designated by his name at full length, if known, with the name of the town and county in which he resides, and the addition of his degree, or mystery.27 When the name of a defendant is not known to the plaintiff, the writ may issue against him by an assumed name.2 28

(j) There being no nobility in this country, there are three degrees, only, viz., esquire, gentleman, and yeoman; although a man may be sued by the addition of any lawful occupation, as merchant, hatter, tanner, scrivener.29 If a man has a cause of action against another by reason of his office, the official capacity should be stated, as against a sheriff, heir, executor, administrator, besides his other name and addition.30

(k) Women are usually designated by the addition of their estate, as widow, single-woman, spinster; or, in case of a married woman, as wife of A. B.

(1) The defendant may be named as follows:

1. (As a private individual.) John N. Smith, of Portland, in our county of Cumberland, merchant, and Samuel R. Doe, of said Portland, esquire.

2. (Husband and wife.) John N. Smith, of Portland, in our county of Cumberland, merchant, and Elizabeth Smith, wife of the said John.

3. (Copartners.) John N. Smith, of Portland, in our county of Cumberland, and Robert Thomes, of Westbrook, in said county, copartners (or late copartners) in trade under the firm name of Smith & Thomes.

4. (When known by several names.) John N. Smith, otherwise called Charles Haynes, of Portland, in the county of Cumberland, laborer.

5. (When the defendant's name is not known.) See ante, (i). 6. (When the defendant's place of residence is unknown.) John N. Smith, now commorant in Portland, in the county of Cumberland, laborer.

7. (Against an administrator.) Attach the goods and estate, which were of John Doe (the intestate), late of Portland, in the county of Cumberland, gentleman, deceased, in the custody of

25 R. S. c. 81, § 3.-26 R. S. c. 1, § 4, Rule XV.-27 10 East, 83.-28 R. S. c. 81, § 5.-29 Com. Dig., Abatement F. 26.-30 Ibid. 20.