
    Sergeant C. Whitcher & others vs. George W. Josslyn & others.
    Under an order of the court, allowing a plaintiff to take out a new writ of summons to a new defendant, the plaintiff may take out a writ of summons and attachment, and cause the new defendant’s goods to be attached thereon,* and a bond given to dissolve an attachment so made is valid.
   Hoar, J.

This is an action upon a bond which was given to dissolve an attachment. A suit was originally brought by the plaintiffs against one Mills, who pleaded the non-joinder of Josslyn as a co-defendant. The plaintiffs thereupon moved that «>osslyn should be made a co-defendant, and that a new writ of summons should issue to him, requiring him to appear and answer. This motion was allowed by the court, and the plaintiffs took out a writ of summons and attachment, and caused Josslyn’s goods to be attached upon it; and this bond was given to dissolve the attachment. Josslyn and his sureties on the bond now contend that this was irregular, and that the bond is of no validity.

It is provided by Gen. Sts. c. 129, § 36, in relation to making such new party defendant, that “the plaintiff may thereupon take out a new writ in such form as the court prescribes, which shall be in the nature of an original writ of copias and attachment, or of summons, and shall require the new defendant to appear and answer as a defendant in the original action. Upon such writ the new defendant’s body may be arrested, or his goods or estate may be attached, as upon an original writ,” &c. And the argument is, that, by allowing a writ of summons, the court did not authorize a writ of summons and attachment.

But we think this is too narrow a view of the meaning of the statute, and cannot be supported. By Gen. Sts. c. 123, § 10, “ The original writ may be framed, either

“ To attach the goods or estate of the defendant, and, for want thereof, to take his body; or

E. F. Hodges, for the defendants.

F. A. Brooks, for the plaintiffs.

“ It may be an original summons, with or without an order to attach the goods or estate.”

Taking the two sections together, when the court is empowered to prescribe a writ of summons, we are of opinion that such a writ of summons was intended as is described in c. 123, “ with or without an order to attach the goods or estate ; ” and that the court having made no order which it should be, it was, as usual in respect to such a writ, at the option of the plaintiff. The second clause of c. 129, § 36, obviously contemplates that an attachment may be made upon either kind of writ; and the writ sued out by the plaintiffs was within the order which the court made.

Exceptions overruled.  