#### Lynch *against*The Mechanics’ Bank. Bronson *against*The Same. Bacon *against*The Manhattan Company. Bacon *against*The City Bank.

The *original*XhXXt XtX»® *lf£chm£.ne*‘by X, a Xot Lga5ormahie but mafTe6’ a^hed *00*m°-

, Original writs, X'"Xu1pu°-®XofVhÍXh X'XXio X ¡¡i? Xr *tapin'*

THE above, and several other suits, were brought on notes issued by the banks, and which they had refused to pay in *gold*or *silver,*which had been demanded of them, the banks, generally, having suspended their payments *in specie.*

The suits were commenced by original writs, the *precipes*for which were filed in the office of the clerk of this court, the 22d of *July*last, and the writs were sealed on that day, tested the 13th of *May,*being the last day of the preceding term, and made returna- *,, ,*J m 7 , *,*i n ble the second *l uesday*oí August, the second common return *J*° 7 day of the *August*term. One of the writs was as follows : “ The people of the state of *New-York,*by the grace of Cod free and independent, to the sheriff of the city and county of *New-York,*greeting: If *N athaniel Bacon*shall make you secure to prosecute his suit, then put by sureties and safe pledges, the president and directors of the *Manhattan Company,*that they be before our justices of our supreme court of judicature, on the third *Tuesday*of *August*next, at the capítol, in the city of *Albany,*to answer unto the said *Nathaniel Bacon:*For that, whereas the £aid president and directors of the *Manhattan Company,*on the 31st day of *October,*in the year of our Lord 1812, at the city and county of *New-York,*and at the first ward of the said city, made their certain promissory note, commonly called a bank note, bearing date the day and year aforesaid, by which said note, the said president and directors of the *Manhattan Company*promised to pay to a certain *J. Madison,*or bearer, on demand, one thousand dollars, to wit, lawful money of the *United States*of America, and then and there issued the said note; and, afterwards, to wit, on the 12th day of *May,*in the year of our Lord 1815, at the city, county, and ward aforesaid, the said note lawfully came to the, *128hands and possession of the said *Nathaniel*Bacon, who thereby became, and was, and from thenceforth hitherto hath been, and still is, the lawful holder, owner, and bearer thereof, and entitied to the payment of the sum of money therein specified, to wit, at, &c., by reason of which premises, and by force of the statute, in such case- made and provided,; the said president and directors- of the *Manhattan*Company„ in consideration thereof, afterwards, to wit, on the same day and year last aforesaid, at, foe., undertook, and faithfully promised the said *Nathaniel Bacon,*well and truly to pay to him, -the said *Nathaniel Bacon,*the said sum of money mentioned in the said note, according to the tenor' and effect thereof, when they, the, said president and directors, &c., should be thereunto requested: And the said *Nathaniel Bacon*avers,-that, afterwards, to wit, on the same day and year last aforesaid, the said note-was' shown and presented by the said *Nathaniel*Bacon, he, then and there, being the holder, owner, and bearer thereof as aforesaid, to the said president and directors, &c,, to wit, at their banking house, in the city,- county, and- ward aforesaid, for the payment thereof, and they, then and there, had notice, that the said *Nathaniel Bacon*was, then and there,-the holder, owner, and bearer of the aforesaid note,: And the said *Nathaniel Bacon,*then, and there, required them, the said president'and directors, foe,, to pay to him, the said *Nathaniel Bacon,*the said-note, the said sum of money mentioned therein, according to the tenor and effect thereof: (And whereas, &c¿,. setting out various other bank notes, in like form:} Nevertheless, the said president and directors, &c., in no wise regarding their several promises and assumptions aforesaid, in form aforesaid made, but Contriving, andfraudulently intending, craftily and' sub lily, to deceive .and defraud the said *Nathaniel Bacon,*in this behalf, did not, nqr would, at the time the said several notes were, shown and presented tp them for payment thereof, as. afqres'aid, to wit, on the said 12th. day of *May,*in the year 1815, or at any time afterwards, pay the said several sums ©f money, in the said several notes specified, or any or either Of them, or any part thereof, to the said *Nathaniel Bacon,*but wholly refused and neglected so to do, and still do -refuse-to pay. the same, to him, to the-damage of the said *Nathaniel Bacon*of -nine .thousand idollars, as he' says: And- have you then there the names of the pledges,, and.this writi, Witness, *Smith Thompson;*Esq.,; Chief Justice of the *city oí New-York*the tfiirteedtfe *129day of May, in the year of our Lord 1815, and of our independence the 39th.

“ *Towt,*Attorney.” *“ Fair lie.*

On the writ were the following endorsements. “ Pledges to prosecute, *John Foe*and *Richard Roed'1*

“ I certify to the justices within named, that the president and directors of the *Manhattan Company,*within named, are attached by twelve pieces of *Spanish*silver coin, each of which is commonly called a quarter of a dollar, of the value of twenty-five cents each. R. Hubbard, Sheriff.”

The defendants not having appeared according to the exigency of the original writs, writs of *distringas*were taken out, returnable at the last *October*term. On the *quarto die past*of the return of the writs of *distringas,*motions were made in behalf of the defendants, who had not appeared, to quash the original writs.

These motions were argued, at great length, by the counsel of the different parties, during the two last days of the term. The points insisted on by the counsel for the defendants, were, 1. That the writ ought to have been in the nature of a *summons,*and not a *pone*or attachment, which does not, they said, lie against a *corporation.*

2. That the writ being an original, ought to have been *tested*on the day on which it was sealed, and not by relation to the preceding term ; it being the rule of common law, that original writs must be tested on the day on which the *precipe*is filed.

3. That the writ, being conformable to the precipe, could not be amended, there being nothing to amend by.

4. That these defects in the writs may be taken advantage ©f on motion.

It is not thought necessary to give the arguments of the learned counsel at large. The following is a brief summary of them, with the principal authorities cited.

*Colden,*for the defendants.

The original against a *corporation*should be by *summons,*and not by *attachment.*(1 *Kyd on Corp.*271, 272. 1 *Tidd’s K. B. Pr.*108, 116. 2 *Impey’s C. B. Pr.*675. *n.*6 *Mod.*183. *Com. Dig. Plead.)*(2 B. 2.)

Is this writ a *summons ?*The sheriff has not treated it as such. He does not say, in his return, that he has summoned the de« *130fondants, or even put them by pledges, &c.; but that he has *al*them by certain pieces of money. The first *process,*or proceeding by original, is a summons, or warning to appear, according to the exigency of the writ, which, in personal actions, is by leaving a *copy*of the writ with the defendant, or at his usual place of abode. (1 *Tid.d's K. B. Pr.*103. 3 *Bl. Com. 279. Finch's Law,*305. 352.) If the defendant does not appear on the summons, before, or on the *quarto die post,*a *distringas*issues. (1 *Tidd's Pr.*111. 114. *Prec. in Chan.*129. 131. 2 *Hen. Bl. Rep.*267. 279. *Appendix to Tidd's Pr.)*

There is not any form of a writ against a *corporation*to be, found in the *Register*; but it is said, merely, that it is the same as against a *peer.*

It may be said, that when the demand is certain, as in *debt, detinue, trover,*the writ is *precipe quod reddat,*&c., or an *optional*writ; but that, where the demand is *uncertain,*the writ is *si ie fecent securum, See.,*and an attachment thereon. This is, no doubt, the general rule, which has, however, some exceptions, one of which is the case of a *corporation,*in the suit against which, where the writsi *te fecerit securum,*&c.,the com? mand is not, *pone per vadios et salvos*plegios, &c., but to summon by good summoners, &c.

*Anciently,*by the common law, the only process to compel appearance in actions unaccompanied by force, or a breach of the peace, was by *summons*and distress infinite. The person of the defendant was never taken. In later times, as commerce increased, the *capias*was introduced. *(Sellon's Pr. Appendix,*(C.) 646. *Tidd's Pr.*122. 3 *Co.*12. 3 *Bl. Com.*281.)

The course of proceeding, by *summons*and *distringas,*against a *corporation,*is founded in reason and common sense. A corporation is an artificial or political person, not a *physical*being, It cannot commit a breach of the peace. It cannot, therefore, be supposed to have committed a breach of the peace on which the process of *attachment*is founded. (5 *Com. Dig. Plead.*(2 B. 2.) 45. *Edw.*III. 3 *a. Bro. Corp.*43. *Cas. Ch.*205.)

Again, it is an established rule, in *England,*in regard to onV *ginal writs,*that you are strictly to adhere to *form.*The party cannot deviate from the *form*given in the *register*; and if n$ spnp is tQ be fpupd therp, he miast apply to the plerjts in chance? *131fey; and if they cannot give him the form, he must apply to par» liament. 2 *Inst*407. 1 *Inst.*54. *b.*

The present writs vary from the language of the established forms found in the books, which is, if A. B. shall make you se*J*cure, &c., then put by *gages*or *safe pledges ;*not as in the present case, “ put by *sureties*and safe pledges.’’ *Gages*are goods and chattels. *Pledges*are *sureties,*or persons of responsibility, who become answerable for the defendant’s appearance, and may be *amerced.*The command should be put by gages *or*pledges, not by both, as in this case, by sureties *and*safe’ pledges.

*Slosson,*also, for the defendants.

The books all agree that an attachment does not lie against a corporation, and that the proceeding is by *summons.*(3 *Keb.*350. pl. 8. 6 *Vin. Abr.*311. (B. *a.)*pl. 3. 1 *Bac. Abr.*507. *(Corp.)*1 *H. Bl.*209. 1 *Kyd on Corp.*272. 1 *Tidd's Pr.*116. 2 *Crompt. Pr.*144. 25. 61. a. 77. 94. 96. 2 *Sellon,*148.) And the summons is served on the mayor or other head officer of the corporation» In all actions where the demand is certain, as account, covenant, debt, annuity, or detinue, the original Writ is called a *precipe;*the defendant being commanded to do the thing required; and unless he did so, and if the plaintiff made the sheriff secure, *si tefecerit secufum,*& c. he was commanded to *summons*him, by good summoners, &c., to show cause why he had not done it. And being in the alternative either to do the thing commanded, or show cause to the contrary, it wras called an *optional*writ. (3 *Bl. Com.*274.) In *assumpsit, case, trespass, trover, ejectment,*deceit, *conspiracy,*or actions for wrongs, whére the claims were for unliquidated damages, the writ is *peremptory,*and is called a *si te fecerit securum, See.,*or *pone,*by which the sheriff is directed to put the defendant, by gages or safe pledges, to show cause, &c. The writ of *si tefecerit securum,*is an attachment; that is, the sheriff might either take *gage or*certain goods of the defendant, or make him find sureties, or safe pledges, who might be amerced in case of his non-appearance.

In proceedings against *peers,*the form of a *summons*is given by *Crompton;*(2 *Crompt.*137, 138.;) and he states the mode of obtaining a *summons*against a corporation, the next process ‘to which is a *distringas.*(2 *Crompt.*145.)

*132So, in *Plowden,******we. find the proceedings on a *quart impedii,*in which the bishop of *Lincoln,*and the dean and chapter, were *Summoned,*«fee. ' *(Plowd.*493.)

*In Fitzherbert's Nat. Brev.,*(92, 93,.), we find forms of writs of *trespass on the case,, -si te fecerit seourum,*&c..r both* óf *pone*and *sunimms .*arTCj Pg says, the form may be varied, and,directs, in one case, that it be by *summons,*fee., and no.tby *pone per*imdios, *&c.,*So,.in *waste,*(Id. 55.,) the process *is:site.fecerit,*&cv, then summbns,-.and in *quod pérmittat; (Id.*125.,) *Quo jure,*(128.) The writ, in the case of'a corporation, therefore, may be .so varied, and the sheriff commanded to summon them.

2, The writ ought to have been *tested*on. 'the day on which it issued, and not by relation to.the preceding term,;' original-writs.' being. required, by the common law, to. be. *tested*on the day on* which the *precipes*tire filed. The late “ act relative to writs and process,”† declares that “ all .original writs, .heretofore issued out of the court of chancery,'returnable in the supreme court, or common pleas, shall hereafter issue out of, and under,the seal of the poui't in which such writs may be returnable..; and'may bq tested- in the name-of the chief justice,, first, or senior judge, of such court,1, *ods&rving, in other respects,. iheforms.now in use;*and, further.", that the.supreme court sjhall have the like power as is now- given, to -the court of chancery, to devise andmake writs •in- case's, where there are none to be found.’’ This act merely gives to this court, the power of *issuing*original writs, tested in 'the name of the chief justice; the-forms, in all o’ther respects, are to be observed. If we look, therefore, to the practice of the court of chancery, and its officers, to see the .mode of making out these writs‡ it will be found that they áre *tested*when the *.precipes*are .filed with the *cw'sitpr,*or clerk, or when the-writsaro bespóke.§ No, . unfit can, issue ufitho.ut ,a *fat.;*fhé; *teste*'is matter-of *record,,*and there, can be no averment against;it.ǁ The-0).¡gjna] mas-(. *trm*¡n a]] respects; and. if antedated, it may be quashed qn motion, for irrregularity. ; There is a difference, in this respect,."between an original and a latitat.** The latter . *' ~ °*is founded m *fict:io7zy*and understood to be so.††

3. The teste *of*the original is not *form^*ánd'being conformable t0 *^.P^Pe*’fifed *n courts it cannot be amended,'for there is nothingto Stipend by.‡‡ And the defect may be tekéa-edvajvtage ohon motion.§§

*133*Munro*and *P. A.*Jay; contra.

Corporations cannot appear, except by warrant of attorney, under seal, and until they do appear, they cannot make a motion. If the wri t is erroneous, the defendant should have prayed *oyer*of the writ, and pleaded in abatement, and this must be done within 4 days after appearance ; or by bringing a writ of error; but as the court will not how grant *oyer*of original writs; there is no way in wliich advantage can be taken of a defective original.. (1 *Saund.*318. *a.*n. (3,) and the cases there cited. *Doug.*227. 7 *East,*383, 384. 1 *Bos. & Pull.*646. 1 *Chitty’s Pl.*289.)

Actions are either *ex contractu,*or *ex delicto ;*and the writs, which are actions, are formed according to this division. In all-actions *ex contractu,*as account, covenant, debt, detinue, annuity, &c., the original is a *precipe,*or *summons,*but in actions *ex delicto,*as *trover, detinue, trespass, ejectment, trespass on the case, assumpsit,*&c., the proceeding is by *attachment.-.*(1 *Chitty's Pl.*280. *Comyn’s*Dig. *Pl.*(C. 12.) 1 *Tidd’s Pr.*36. *Finch’s Law,*254. 303. 305.) *Assumpsit,*being an action on the case, is *ex delicto,*and the original writ, as in all actions for torts, is the *pone*or *si te fecerit securum, &c., (Jacob’s Law Dict.*by *Tomlins. Voc. Original Writ. Boote’s Suit at Law,*23. 25. 3 *Bl. Com.*274; 1 *Comyn’s Dig. Action on the case,*(C. 1.) Though the original writ is not now set out in the declaration, yet the nature of it is always stated; and the declaration begins with saying the defendant was *attached,*or summoned; according as the original was, either a *pom,*or attachment, or a summons. (1 *Chitty’s Pl.*288.) In the books of entries and pleadings, we find various forms of *precipes*for declarations by original, on *promissory notes and bills of exchange,*which commence in the. following words: “ If E. P. shall make you secure, &c., then put, by sureties and safe pledges, J. B.,” &c., precisely in the form and language used in the cases now before the court. (1 *Went. Pl.*273. 281. 293. 301. 317. 370.. *Lily’s Entries,*90. 1 *Modus Intrandi,*188.)

We say, then, that, in assumpsit, by *original,*the process is *pone,*or attachment. This is the general rule; and it lies on the defendants to show the exception. Actions have been brought against corporations, for *trespass vi et armis, or quare clausumfregit'. (Theo. Dig.*79. *Y. B.*23. *Hen.*VI. 8. 2 *Edw.*III. 26.) So, it seems that they may break the peace.

*134Why maynot a corporation be attached, as: well as an individtfal *1*'ppg ]aW) by constituting them political persons, and authorizing them- tomake promissory notes, necessarily subjects them to the same consequences, as individuals, for a breach of their contracts. Attachments are either against the person or the goods. Though a corporation has no *body,*yet it may be attached by its *goods,*of-property. The command of the writ,, in this case, is to attach by sureties, or gages and pledges. Tidd,-who has been cited', says, “ where no *capias*lies, as against *peers,*&c., corporations, or hundredors'on the statutes of hue and cry,” &c., the original writ is the first proceeding; or where the defendant absconds, and the plaintiff intends to proceed to outlawry. All the precedents, without exception,, of proceedings against *hundredors,*show the process to be attachment. (1 *Lily’s, Ent.*295. 2 *Saund.*374, notes. *Morgan's Vade Mecum,*469. *Co.*Ent. 348, 349. 351. *Plead. Assist.*457. *2 Instruct. Cleri.*265. *Hearne's Pl. 214,*215.)

The form of a declaration, given in a *note*by *Sellon,*(2 *Sellon's Pr.*148.,) cannot be correct. . Jtis against the whole current of authorities and precedents,

In the Register, *(Registrum Brevium,*94.,) is the form- of a writ against an abbot and his co-monks, which is a *pone, or*attachement.* So,, in a case in 8 *Hen.*VI. 1. pl. 2., against the mayor, bailiff,. and commonalty, &c., of *I., Martin,*J. says, the only process: is by attachment and distress infinite. It is very remarkable, that, among the immense number of pleas of abatement, this objection, in regard to proceedings against a corporation, has never occurred. , \ .

In regard to peers, the writs all say,. “ having privilege of parliament,” he is summoned, &c. This is founded on statute. (16 *Vin. Abr.*Parliament, (C.) 1 *Went, Pl.*206. *10*Went. pl. 474.) In *Lily,**†***are precedents which show that .peers were *attached.*- /

As to the *teste*of the writ, it is true, that the general rule in *England*is, that all original writs, must be tested on the day -they are issued. . It is, also, an invariable rule of this-court,'that all writs issued Out of this court must be *tested*in term.- If a writ is tested- in vacation, or out of *term,*it is void. (20 *Vin. Abr.*264. *teste,*pl. 9, 10, 11. 13.) The defect, however, if the writ is erroneous, is amendable; and ought, under the peculiar circumstances of the case, to be amended. ( *Bos.*& *Pull.*342. 1 *Bl. Rep.*462. 2 *Bl. Rep..*918. *Cowp.*407. 841., 7 *Term Rep.*299. 5 Johns. *135*Rep.*163, 233.) In *Foster*v. Pollington, *(Fortesc. Rep.*186.) though the chancellor and master of the rolls refused to order the writ to be amended, because it was comformable to the *precipe;*yet the C. P. said, that the writ being returned there, the power of the chancellor over it had ceased, and that it was amendable by the writ itself, because it was contradiction and nonsense, and they accordingly amended it, by striking out the objectionable words.

Wells, in reply. *(T. Á. Emmet,*same side.)

This is the first day that the defendants were bound to appear in court, and they are in season to object to the process. They need not plead in abatement, but may avail themselves of the objection on *motion.*- The cases cited from Saunders, Douglas, and East, were those in which the parties had appeared and pleaded, and so were held to have waived the irregularity. In *Fitzkerbert, N. B.,*will be found writs of *si te fecerit securum,*&c., in which the proceeding was by summons, and others in which it is by *pone*or *attachment.*We contend, that the proper course against a corporation, is by *summons.*The writ said to be found in the *Register, (Regist. Brev.*94.,) was that against an *abbot,*or corporation sole. An *abbot*and monks form a corporation of a peculiar kind, where the abbot and his monks, though they are, as *natural persons,*dead in law; yet, the abbot, as head of the religious house, has a political capacity of súing and being sued *alone.******But let the plaintiiis show; il they can, an instance of a corporation aggregate, consisting of many persons, capable of being sued, -who have been sued by *pone*or attachment. *Kyd (on Corp.*222—225.,) has examined all the cases in the *Year*Books,† in which trespass was brought against a corporation, without any objection being made; and concludes, not withstanding, that an action of trespass will not lie against a corporation aggregate.‡

In the case in 8 Hen* VI. 1., the action was trespass, but it does not appear what the process was. One of the judges, to show the impropriety of joining an individual with a corporation, observes, that in case of amercement, the process would be attachment and distress infinite, and against the individual, process of outlawry, which could not be joined. *Kyd**§***says, explicitly, that a suit against a corporation aggregate, must be by original out of chancery; and if the corporation do not ap*136pear, the process to compel appearance, must be by *distringas,*against -the corporate property; and that an *attachment*will not lie, against them,, in their corporate capacity. If they have no ^anc^s> or goods, there is no way to make them appear either in. a court #f law, or-equity.- . The extraordinary remedy in- such case, is by appeal to the house of lords. *Tidd*and *Sellan******both - . ... saU - *• process to compel a corporation to appear, is by *distringas. ■*

In 2 *Reeve’s Hist. of Engl. Law,*(257. 262.,) aré the ancient forms of writs in *debt*and *covenant,*which are; *ei si fecerit,. See., tunc, sumnyone,.*&c...... ;■

The case of *peers*and *corporations*stand oh the same reason ;■ because youcannotproceed' against them' by *capias;*but must Sue out an *original si te fecerit.secufum,*&c., *summons*and *distriñ* gas*thereon. Not a cáse has been shown of a proceeding against a peer,,by any other process. In-the precedents in *Lily,*it,does not appear that the defendants were, *peers*of *Great Briiain%*They'Were *trish-ov ¡Scotch*nobles. . ' -

As , this court has decided, in- *Pierce v. Crofts.**†***that a . , ■■ ' *J .*note payable to *bearer*might be given in evidence under the general money count, in. an. ■action by the holder, why resort to the expensive mode of proceeding, by original, in these cases ?

As to the ¿este of the writ, the late ,act could not have intend? ;ed to. put suitors in1 a worse situation than they were in- before the act was passed. Now, suppose the cause of action arises in *vacation,*and, the 'original writ is tested hi the preceding term, it will appear to haye issued, before the cause of action ai'pse. Must he, then, to hyoid this error; Wait-until the next term before ■ be takes out a writ; when, before the act; he might have, gone to a clerk in chancery; and obtained a writ on any day.; This defect in the writ is fatal. It cannot be amended. The cases cited of amendments, are those of *mesne*process, not of original writs. A bad original, is not helped by the statute of jeofails. (11 *Mod.*2.) . Amendments cannot be made unless there is something to amend by ; and here is nothing but the *precipe*on file, and the writ does not vary from *theprecipe.*(8 Co. 156. *b.*1 *Salk.*49., 1 *Ld. Raym.*564, 565. *1 Mod.*250. 1 *Com. Dig.*449. (D. 1.) 1 *Show.*80. 3 *Atk.*595. 598. 2 *Wils.*117. 3 *Wils.*342. 9 *Mod.*308. 10 Mod. 270. 2 *Burr.*966.) No fiction is allowed to help out an original writ. The act must have intended to have made this court,- in, regard to writs returnable here, *137the *oficina breoium,*instead of chancery; and this *oficina breoium*must be always open, in'vacation as well as term time; otherwise the statute of limitations might run against a,demand, in many cases.

*Munro*

cited 2 *Sellon’s Pr.*677. 1 *Lily’s Ent.*90. *Legge’s Outlawry,*62. *Johnson’s Diet, ad voc. Ainsworth’s Diet, ad voc.,*to show that the words vadios. *at plegios,*are properly translated by *sureties*and *pledges.*

*Emmet,*contra,

cited 3 *Bl. Com.*280., and *Boole’s suit at Law,*19., that *“gages”*were goods or chattels, and “safe ■ *pledges”*were *sureties*or *responsible persons»*

*

*Rastall,*497 b. *Benloe,*1 pl. 293.

†

 Sess 36. ch 38. passed 17th *February,*1815.

‡

*Fleta,*lib 3. ch. 13. s. 14, 15.

§

 1 *P. Wins.*437. *3 Eq Cas. Abr. 779 s. 2.*

ǁ

 2 Str. 749. 759, 760.

**

 2 *Burr.*961. Plowd. 491. Bunbury, 161.

††

*Fleta, lib.*2. *ch 13*1 Harr Ch. Pr. Introd p. 5. Harg. Law Tracts, 363 1 Com. Dig. Abatement. 2 Burr. 960. Cro. Eliz 829. 1 Roll's Abr. 200.

‡‡

**1 *Show.*80. 1 *Tidd's Pr.*661. *Com. Dig. Amend.*(Y ) 8 *Co.*156. *1 Ld. Raym.*564. *1 Salk*49. 700. 3 *Str.*137. 3 *Atk.*599. 1 *Salk.*53. *2 Caines' Rep,*63.

§§

 3 Atk. 595. 1 *Show.*80. *2 Stra.*749. 758. 2 *Burr.*966.

*

*See S. C. Fitz. N. B. 87.*

†

*Lily's Entries, 21.*

*

**1 Kyd on Corp. Introduct. 21, 22.

†

**38 Ed. III 1s. *8 Hen VI 1. 9 H. VI 36 20 Hen. VI 9*4 Hen VII 13. 45 Edw III 23.

‡

**22 Ass. pl 67. Bro. Corp. 43.

§

 1 *Kyd on Corp. 271.1, 272.*

*

*1*Tidd, 116 2 *Sellon,*148, 149. Co. Litt. 66. Bro. Corp. 43.

†

*12 Johns.*Rep. 30

*Per Curiam.*

The two exceptions taken to the original writ, and upon which the present motion is founded, are, that it should have been in the nature of a summons, and not by *pone*or attachment; and that it should have been tested On the day it was issued, and not on the last day of the preceding term.

With respect to the first exception, it is unnecessary to pursue the very extensive range taken by the counsel on the argument. If this was an action against a private person, there can be no doubt, from the nature of the demand, that the form adopted in this case would be correct. The demand being uncertain; the general rule is, that where the demand is certain, the original writ is in the alternative, and is called a *precipe,*commanding'the defendant to do the thing required, or show why he has not done it; and this is the process by summons. Where the demand is uncertain, the writ is called a *si te fecerit securum,*and is peremptory, commanding the sheriff to cause the defendant to appear in court, without any option given him to do the thing required, as in the *precipe;*and this is the process by *pone,*which directs, the sheriff to put by *gages*and *safe pledges,*the defendant to show wherefore, &c. No precedent of an original writ against a corporation has been shown. But in all the elementary writers, and in all the books of practice, which treat of the proceedings against corporations, it is laid down as the universal rule, that the process must be by summons, and not by attachment ; and such would not have been the language of the books, if the same form, in all cases, was to be pursued in proceedings against corporations- as against individuals. The alteration in *138the writ is very plain and simple, instead of the words *“ then put*7 „ , 7 ,, „ . , , 7 *by gages and safe*pledges, ’ <yc., insert, *then summon by good summoners, 8rc.*In this respect, therefore, the original writ is defective, and it is not amendable. There is nothing to amend by. It cannot be considered a clerical mistake. The writ is conformable to the precipe. (1 *Salk.*52.) The test of the writ depends entirely upon the construction to be given to the statute lately passed on that subject. (Sess. 38. ch. 38.) This statute declares, that all original writs which, according to any law,usage, or custom, have hereto issued out of the court of chancery, &c.y shall hereafter issue out of, and under the seal of, the court in which such writ may be returnable, and be tested in the name of the chief justice, first, or senior judge, of such court, observing, in other respects, the form now in use ; and giving to this court the like power which the court of chancery had, to make and devise new writs. This statute is rather obscurely worded, and it is a little difficult to say what, precisely, was meant by the expression, “ observing, in other respects, the form now in use.” There can be no doubt that, according to the established course of proceedings in the court of chancery, with respect to original writs, they must be tested after the cause of action arises, and the day they .are actually issued. Although the statute might well warrant the construction, that the original writ was still to have á true test, in the same manner as when it issued out of chancery ; yet this is not the obvious and necessary interpretation to be given to the act; and it is much more fit and proper that it should be tested like other process issuing out of this court, and such was, most likely, the intention of the legislature. To assimilate it as nearly as may be to other process, in ma tters that may be considered in a great measure formal, is less liable to lead to mistakes in the issuing of the writ. And as it is the universal and established rule, with respect to all other process, that it should be tested in term time, we think it the most fit and proper construction to be.given to the statute, that it was intended to apply the same rule to the test of original writs. In this respect, therefore, the writ is correct, but must be quashed upon the first exception, taken.to it.

Motion granted.