affairs in consequence of habitual drunkenness, or for any other cause, and for whom a committee has been appointed, by delivery of a copy, to such committee and to the defendant personally:

4. If an order to attach property be endorsed on the summons, by leaving a copy, as prescribed in section

1079.

5. In all other cases by delivery of a copy to the defendant personally.

By this section, the manner of service of the summons is defined, where a corporation or a minor, an insane person or an habitual drunkard, is a defendant. The law has heretofore been defective in this respect. The service by copy at the defendant's residence is omitted. The summons, when served in that manner, was formerly followed by a warrant to arrest the defendant; but that mode having been superseded by the act to abolish imprisonment for debt, and a new summons required to be served personally before judgment can be taken, this mode of service by copy is no longer necessary.

§ 1069. When the action is on a promissory note, bill of exchange, or other obligation for the payment of money only, or for a specified amount of property, at a valuation fixed in the contract, or on an account, the plaintiff may serve, with the summons, a copy of his complaint, together with a copy of such obligation or account. In such case, unless the defendant, in his answer, specifically deny the note, bill of exchange, or other obligation or account, he is to be deemed to have admitted it.

This section is in conformity with the practice introduced by the code in higher courts, where its effects have been

very satisfactory. It saves the trouble of proof in those cases,
where the demand has been presented to the defendant, and
he sees fit not to appear and deny it.
In all other cases the
demand must be proved, whether the defendant fail to appear
or not, unless he puts in an answer, and in that does not deny
the allegations in the complaint.

§ 1070. The parties are entitled to one hour in which to appear, after the time mentioned in the summons for appearance, but are not bound to remain longer than that time, unless both parties have appeared, and the justice, being present, is actually engaged in the trial of another action, or of a special proceeding. In such case, he may postpone the time of appearance until the close of such trial.

§ 1071. An order to arrest the defendant may be endorsed on a summons issued by the justice, and the defendant may be arrested thereon, by the constable, at the time of serving the summons, and brought before the justice, and there detained until duly discharged, in the following cases:

1. In an action for the recovery of damages, on a cause of action not arising on contract, when the defendant is not a resident of the county, or is about to remove therefrom, or when the action is for a wilful injury to person, or to property knowing it to belong to another:

2. In an action against a person who does not reside in the state:

3. In an action for a fine or penalty, or for money or property, embezzled or fraudulently misapplied or converted to his own use, by a public officer, or an officer of a corporation, or an attorney, factor, broker agent or clerk,, in the course of his employment as such or by any other person in a fiduciary capacity, or for misconduct or neglect in office, or in a professional employment:

4. When the defendant has been guilty of a fraud in contracting the debt, or incurring the obligation, for which the action is brought, or in concealing or disposing of the property for the taking, detention or conversion of which the action is brought:

5. When the defendant has removed, concealed or disposed of his property, or is about to do so, with intent to defraud his creditors:

6. When an arrest is authorised by special statute, in an action for a fine or penalty, or for a wilful violation of duty.

But no female can be arrested, except for a wilful injury to person or to property knowing it to belong to another.

An order to arrest a defendant is substituted for a warrant, in analogy to the practice in the higher courts. The order to arrest is properly a judicial act, to be granted only in certain cases, and upon compliance with certain conditions, whereas a process to commence an action is matter of right, and does not depend on judicial discretion. The party has a right to his summons or process to commence the action, but not to arrest a defendant, unless his case, when presented to an officer, is

adjudged to be one entitling him to that remedy. The process is his own act, the order to arrest that of the court.

The cases in which an order for arrest may be made are defined. They are those contained in the act to abolish imprisonment for debt, modified so as to conform to the provisions of the code, and to those cases in which an arrest is allowed in actions in the supreme court. They embrace the cases also in which an order to attach property may be granted.

§ 1072. Before an order for an arrest can be made, the party applying must prove, to the satisfaction of the justice, by the affidavit of himself, or some other person, the facts on which the application is founded, and the amount of his debt or claim over all payments and set-offs. The plaintiff must also execute and deliver to the justice a written undertaking, with or without sureties, to the effect that if the defendant recover judgment the plaintiff will pay to him all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which must be double the amount claimed, not exceeding one hundred dollars. If the undertaking be executed by the plaintiff without sureties, he must annex thereto an affidavit, that he is a resident and householder or freeholder, within the county, and worth double the sum specified in the undertaking, over all his debts and liabilities.

That part of this section which requires the plaintiff to give security, is new in its application to justices' courts. It is in conformity with the existing law in relation to arrests in the higher courts, in which no man can

be arrested by an order of a judge even, without first giving security to pay costs and damages in case the alleged cause of arrest should turn out to be unfounded. Since the justices' act, as contained in the revised statutes, was passed, the policy of the law has been materially changed by abolishing impris onment for debt; but the law regulating proceedings in this court has never been revised to make it conformable to the spirit of that act. In order to have an attachment against the property of a defendant, stronger proofs were required than to procure a warrant by which the defendant was restrained of his liberty, besides the securities that are required to be given to the defendant for the payment of damages in case the plaintiff shall fail to make out his case. Abuses by the arrest of the defendant without good cause, are of common occurrence, and it is deemed right to throw about the personal liberty of the party safeguards equal to those by which the possession of property is protected.

§ 1073. The defendant, immediately upon being arrested, must be taken to the office of the justice who made the order, and if he be absent, or unable to try the action, or if it be made to appear to him, by the affidavit of the defendant, that he is a material witness in the action, the constable must immediately take the defendant before the next justice of the city or town, who must take cognizance of the action, and proceed thereon, as if the summons had been issued, and the order of arrest made by him.

§ 1074. The constable, making the arrest, must immediately give notice thereof to the plaintiff, and endorse on the summons and subscribe a certificate, stating the time of serving the same, the time of the arrest, and of his giving notice to the plaintiff.