|
|
|
|
|
|
|
426 MCKIM v. ODOM.
tainly wrong; the authorities cited warrant no such assertion. (5)
And it has also been said, that a subpaena is not the proper original
process against a corporation; because it has no conscience; (t)
This is also an error; for, in all cases, where a corporation is made
defendant, the first and proper process for calling it in to appear
and answer is the same as that used for summoning a natural per*
son; that is, a subpaena; and accordingly the bill prays for a sub-
poem, and no other process, (u) The bill, it is true, must always
ask for that original process which is suited to the nature of the
case; against natural and artificial persons a subpoena is prayed
for; against non-residents an order of publication, made the sub-
stitute of a subpaena, is asked; and against the Attorney-General
it is prayed, that he may be attended with a copy of the bill; (w)
which form of prayer, as against the Attorney-General, appears to
be recognized by several acts of Assembly, (r) with only two ex-
ceptions, in which he is directed to be summoned, or served with
a subpaena. (y) These prayers are indispensably necessary, be-
cause it is an established rule, that no one is to be considered a
party to the suit, against whom no process or publication is prayed,
and served with it, or the publication made, (z)
If the body politic neglects or refuses to appear as required by
the subpaena which has been served on the mayor, president or any
director or manager, or other officer, then the next process is a dis-
tringas, the form of which writ is substantially the same at law as
in equity, (a) By this writ the sheriff is commanded to make a
distress upon the lands and tenements, goods and chattels of the
corporation; and it is endorsed thus: 'By the court at the suit of
A. B. for want of an appearance, (or answer, as the case may be.')
But in England upon the first writ the sheriff generally levies forty
shillings issues; upon the alias distringas, four pounds; on the
pluries distringas he levies the whole property; and on the return
of the pluries a sequestration is granted, (b) Thus far there ap-
pears to be not the slightest difference to be found in the boots,
either as to the form of the process, or in reference to the character
of the corporation to be affected by it.
|
|
|
|
|
|
|
|
|
|
(s) Harvey v. East India Company, 2 Vern. 395; S. C. Prec. Cha. 128.—(i) Com.
Dig. tit Franchises, F. 19.—(u) Willis Eq. Plea. 8; Lowten v. The Mayor of Col-
chester, 2 Meriv, 395.—(w) Willis Eq. Plea. 7; 2 Mad. Pra. Chan. 202,—(x) 1785,
ch. 72,s. 29, and ch. 78, s. 1; April, 1787, ch. 30, s. 4; 1799, ch, 70, s. 7.—(y) 1786,
ch. 48, s. 8; 1794, ch. 60, s. 6.—(z) Windsor v. Windsor, 2 Dick. 707; Reilly v.
Ward, 6 Bro. P. C. 405; Lingan v. Henderson, 1 Bland, 245.—(a) 2 Harr. Ent.
074; 1 Harri. Pra. Chan. 264; 1832, ch. 306, s. 5.—(6) 1 Harr. Prac. Chan. 264.
|
|
|
|
|
|
|
|
 |
