Its service. SEC. IV. WHERE, WHEN, AND HOW, SUMMONS SERVED. The Sheriff cannot serve the summons out of his county. The latest period allowed for the service of a writ, is the day on which it is made returnable.19 A summons issued, and made returnable forthwith, may be served and returned at any time during the day upon which the court adjourn sine die; even though such service and return be, in point of time, after such adjournment.20 In general, a copy of the summons must be personally served on the defendant, or left at his usual place of residence.21 A copy left at the store, or place other than the usual place of residence of the defendant, in his absence, will not be a service.22 If the summons is against an incorporated religious society, it may be served by leaving an attested copy with any one of the officers of the corporation, ten days at least before the return day of the writ.23 If it be against an incorporated town, an attested copy of the summons should be left with the recorder, or at his usual place of residence, at least four days previous to the return day thereof;24 unless the act, incorporating the town, specifically directs the mode of service; in which case the officer must pursue the mode pointed out by the act of incorporation. If the summons is against a Turnpike Company, an attested copy may be left, at any time before the return day thereof, with the president of the company, if within the jurisdiction of the court; and if the president cannot be found within such jurisdiction, a copy of the summons may be left with any director of the company.25 If the summons is against a School District, an attested copy should be left with the district clerk.26 If the summons is against any other corporation, an attested copy should be served upon the mayor, president, or other head officer,27 in the absence of any statutory provision pointing out the mode of service. When the summons is against two or more defendants, the officer must serve the writ on such of the defendants as shall be found in his county, and indorse on the writ the names of such defendants as have been served, and also the names of such defendants as have not been served, specifying that they are not found in his county.28 (19) 13 Johns. 255. (24) Stat. 943, 944, §5. Such is the provision (20) 2 Burr. 812; 1 T. R. 192; 2 Wils. 372; 1 of the general statute, applicable to towns incor When to be returned, and forms of returns. SEC. V. WHEN SUMMONS TO BE RETURNED. The writ must be returned by the officer at the time and place therein mentioned. 28 The officer has the whole of the day upon which the writ is returnable to do this. If the writ is returnable forthwith, it is no objection that it is returned after the court has adjourned sine die, provided it be returned on the day of such adjournment.29 If the officer fail to return the writ at the time and place therein mentioned, unless he can make it appear to the satisfaction of the court that he was prevented by inevitable accident from so doing, he may be amerced by the court in any sum not exceeding the plaintiff's debt or demand, to, and for, the use of the plaintiff.30 The mode of proceeding against the officer for not returning a summons is the same as for neglect to return a capias; and the journal entries, &c., in such case can be readily made out, by a modification of the forms which will be hereafter given, when the amercement of a sheriff upon an execution is the subject of consideration. SEC. VI. FORMS OF RETURNS TO SUMMONS. 1. Personally served on the defendant, an attested copy of this writ, on the 2. Served on the defendant, by leaving an attested copy of this writ at his usual place of residence on the day of Fees: A. D. [Signed, &c.] 3. The within named C-D-, is not to be found in my county. [Personally served on the other defendants, EF, and G————— H—————, GHan attested &c., following one of the two preceding forms, in substance, according to the fact.] Fees: [Signed, &c.] 4. Not summoned: The within named defendant is not to be found within my county. [Signed, &c.] 5. Personally served by leaving an attested copy of this writ with R S-, on the - day of - A. D. Religious Society within named, to wit: Fees: who is one of the officers of the a trustee of said corporation. [Signed, &c.] The reader can readily make out all other requisite forms from the above. (28) Stat. 649, §43. (29) 2 Burr. 812; 1 T. R. 192; 2 Wils. 372; 1 H. Bl. 222; 3 Taunt. 404; Tidd 190; 13 Johns. 255. (30) Stat. 649, §13. Forms, &c., upon Proclamation. Appearance of defendant, and its effect. SEC. VII. HOW TO PROCEED AGAINST A DEFENDANT BY PROCLAMATION. If a defendant at the time of suing out a summons have a residence in, or be an inhabitant of, the county in which the process issued, and the summons is returned not found, the court may, on motion of the plaintiff, order a proclamation to issue, warning the defendant to appear at a certain day therein named, or that judgment will be rendered against him. This proclamation must be published three successive days of the court, (if the court so long remain in session,) at the door of the court house, and also three times in some newspaper published in the state; and if the defendant fail to appear, pursuant to such proclamation, the same proceedings will be had, and the same judgment given, as in other cases of default.31 On motion of the plaintiff, by Mr. A., his attorney, and it appearing to the satisfaction of the court, as well that the process heretofore issued herein, has been returned by the sheriff, [not found, if a capias; but if a summons, say, not summoned,] as also that the defendant at the time of suing out said process [had and still hath a residence in, or say, was and still is, an inhabitant of, according to the fact] this county, and lurketh therein, it is ordered that a proclamation do issue, warning the defendant to appear on the day of A. D., and defend said suit, or that judgment will be rendered against him. Each day, for three successive days, if the court so long remain in session, enter the following on the journal of the court: Proclamation at the door of the Court House, was this day published, in pursuance of the statute in such case made and provided, of the order heretofore made in this cause, warning the defendant to appear on as in the preceding form.] -- [&c. conclude The advertisement can be readily made out from the preceding forms. SEC. VIII. WHAT IS AN appearance oF THE DEFENDANT, AND its effect. It is important to know what constitutes the appearance of the defendant to the action, as an appearance, in general, cures all errors, and formal defects in (31) Stat. 650, §17. What is an appearance, and its effect. process;30 unless, indeed, the defendant craves oyer of the writ, and pleads the defect in abatement.31 So far as respects the right of the plaintiff to proceed in the action, the statute of this State32 provides, that when the sheriff, or other officer, shall return the summons, or other process, "served," the defendant or defendants shall be considered as being in court, and may be proceeded against accordingly. If there be two or more defendants, and some are not served, the plaintiff may proceed against those served, so far as regards their appearance, as if they were the only parties originally sued; except in this, that he must suggest in his declaration the return of the officer; and he may, after judgment, proceed by scire facias to make the defendants not served, parties to the judgment,33 as will be more particularly stated hereafter. These provisions of the statute were no doubt made for the purpose of so far changing the common law as to enable a plaintiff to proceed in like manner to judgment and execution against defendants served with process, as if they actually appeared to the action, but failed to plead. An appearance, however, which will cure errors and defects in process, must be effected by some act of the defendant in court. It need not be by a technical entry of appearance ;34 but the filing a plea, or demurrer, a motion for a rule on the plaintiff to enter security for costs, or the doing any other act of record, would be held an appearance to the action.35 Coming into court, and moving to quash the process for informality, or to set aside the proceedings for irregularity, will not be deemed an appearance. So, if the plaintiff moves a rule to plead, and the defendant remains passive, except in the reservation of the right to plead in abatement, it will not constitute an appearance.36 The application to set aside proceedings for irregularity, should be made as early as possible; and, in general, if it be overlooked at the return term of the writ, and the defendant take subsequent steps in the cause, other than craving oyer of the writ and pleading the defect,37 it will be considered as waived.38 Therefore, where the writ was in assumpsit, without stating any damages, and the defendant appeared at the return of the writ, and was discharged on common bail, but no technical appearance entered to the action by him, and judgment was taken by default, it was held, on error, that the defect was waived.39 So, if the writ be tested by the judge, instead of the clerk, the objection is waived by a plea to the merits.40 CHAPTER IX. COMMENCEMENT OF ACTIONS BY CAPIAS AD RESPONDENDUM. SECTION 1. WHO ARE PRIVILEGED FROM ARREST. 1. Members of Congress. 2. 3. Members and officers of the Legislature of this State. 4. Judges, officers, suitors, &c., of courts. 5. Militia of this State and soldiers, &c., of the United States. 6. Voters at elections. 7. Females. 8. Insolvents. 9. Executors, administrators and corporations. 10. Where a defendant has been before arrested for the same cause of action. 11. Where the defendant has been wrongfully arrested or detained in custody. IN WHAT ACTIONS, AND FOR WHAT CAUSES, A CAPIAS AD RESPON- WHAT CASES ARE NOT WITHIN THE OPERATION OF THE NON-IMPRIS- THE GENERAL KEQUISITES OF THE AFFIDAVIT TO HOLD TO BAIL. 2. How the cause of action should be stated in the affidavit. 3. How one of the eight particulars mentioned in the non-imprison- 4. How the causes for issuing a capias, &c., should be stated, in 5. VI. VII. 1. Under the non imprisonment acts. 2. In cases not within the operation of the non-imprisonment acts. ALLOWANCE OF A CAPIAS AD RESPONDENDUM BY A COURT OR JUDGE, |