
    Dennis Brigham versus Solomon Este Junior
    Upon a plea that a writ, when served, contained no count or declaration, and that no cause of action was therein set forth, the writ was abated,
    The defendant pleaded in abatement of the writ, that at the time when it was put into the officer’s hands for service, and at the time when it was served, it contained no count or declaration ; and that no cause of action was in any way or manner therein set forth. To this plea there was a general demurrer.
    
      Lincoln and Harrington for the plaintiff.
    At common law the declaration forms no part of the writ, but is produced by the plaintiff after the writ is served. Ilsley v. Stubbs, 5 Mass. R. 285 ; 1 Tidd’s Pr. 361, 654. The law is the same in this State, unless it has been altered by our statutes ; Amory v. Gilman, 2 Mass. R. 210 ; Commonwealth v. Knowl
      
      ton, ibid. 534 ; and we contend that it has not been. Ancient Charters &c., 50; St. 3 Will. 3, c. 11. In St. 13 Will. 3, c. 15, a declaration is spoken of as a thing distinct from the writ. Our statutes prescribe the outlines of the forms of some writs, and in particular instances direct an insertion of the declaration ; as in the writ of audita querela, St. 1780, c. 47, § 4 ; of dower, St. 1783, c. 40, § 3 ; de homine replegiando and withernam, St. 1786, c. 58, § 1, 5 ; and in the process for the recovery of militia fines, St. 1809, c. 108, § 35 ; but in the form of the common writ of capias or attachment, in St. 1784, c. 28, § 1, no such direction is given ; and this omission must have been by design. Wood v. Ross, 11 Mass. R. 277. The blank after the words, “to answei unto D. S. &c. in a plea of,” was left for the purpose of inserting the species of the action, as trespass, trespass on the case, &c. If the declaration must be inserted, it must be likewise in the short summons which accompanies the writ, for the same sort of blank is left in the form of the summons.
    In the counties of Berkshire and Norfolk a bar rule allows the filing of a declaration after the entry of the action, and it has been the practice of eminent counsel in this county to have writs served without a declaration.
    
      Sumner, for the defendant,
    contended that the writ was void at the time of the service, and that it could not be rendered valid by any thing done afterwards. No valid attachment could be effected by it, for if the defendant had not appeared, but had been defaulted, no judgment could have been rendered ; and where the reason why the plaintiff cannot recover a judgment is because he has set forth no cause of action, no lien to respond the judgment can be created by an attachment. Grosvenor v. Gold, 9 Mass. R. 210. Neither could the officer legally hold the defendant to bail; for if the defendant had been committed to gaol, upon a habeas corpus, the return of which must state the cause of the commitment, in order that the court may judge of its validity, (St. 1784, c. 72, § 2 ; 3 Bl. Com. 133,) it is apprehended he would have been discharged. The amount claimed must be inserted in the bailbond ; Park v. Yerbury, 1 Wils. 284 ; 3 Bl. Comm. Append, xxv ; Churchill v. Perkins, 5 Mass R. 542 ; but the officer has no means of knowing the amount except from the writ. The ad damnum furnishes no guide, for if that is in a large sum and the officer accordingly requires a bond in a large sum, and the plaintiff afterwards declares for a small sum, the officer may be liable for requiring excessive bail; but if on the other hand he takes a bond for a small sum, he may be charged for taking insufficient bail. If then the officer cannot take a bail-bond, it is illegal for him to make an arrest. This Court have recognised it to be the practice here to insert the declaration in the writ; Commonwealth v. Churchill, 5 Mass. R. 180 ; Ilsley v. Stubbs, ibid. 285 ; and to depart from this course vrould open a door to much mischief without any countervailing benefit. If the cause of action is set forth, no matter how summarily, the plaintiff may have leave to amend ; but there cannot be an amendment of a declaration where there is no declaration. An amendment must be for the same cause of action as the original declaration, and it cannot be made to the injury of bail or of a subsequently attaching creditor. Haynes v. Morgan, 3 Mass. R. 210 ; 9th Rule of Court, 16 Mass. R. 373 ; Parker v. Parker, 17 Mass. R. 376 ; Willis v. Crooker, 1 Pick. 204. If the plaintiff may insert a declaration after his writ is served, he may attach a large amount of property, and then by collusion with other creditors who have not been fortunate enough to find property to attach, may declare on demands belonging to them, or which he has purchased after nis writ was served. The forms of writs in the statutes are merely directory. In some of the more unusual writs it is mentioned that the declaration is to be inserted ; it cannot however be supposed that the defendant in a writ of dower, who is only to be summoned, must be informed of the cause of action, but that the defendant in an ordinary writ may have his property attached or his body arrested without knowing why such attachment or arrest is made. If no cause of action is inserted in the writ, the defendant cannot plead in abatement the pendency of another action for the same cause. It is said that in England the declaration is no part of the writ; but the writ states summarily what the declaration sets forth in detail, and a man cannot there be held to bail unless the true cause of action is expressed in the writ or process. 3 Bl. Com. 287, 293; Tidd’s Append. 10 to 16; 1 Lilly’s Abr. 13.
    
      Lincoln in reply. Although there cannot be a judgment for the plaintiff without a declaration, it does not follow that the declaration must be inserted in the writ before the service. We do not contend that filing a declaration could affect the rights of bail or of another creditor ; the question is, whether this process is not valid as against the defendant himself, al though it may be otherwise as against third parties. By our practice the officer takes bail for the sum for which he is directed to hold to bail; which may at the pleasure of the plaintiff be much larger than the sum demanded in the declaration.
    The opinion of the Court was read at April term 1824, as drawn up by
   Parker C. J.

It is admitted by the pleadings, that when the writ in this case was served, it contained no count or declaration, nor any cause of action whatever; and the question for us to decide is, whether at that time it wras a legal and sufficient process, which could authorize the officer to attach the property or arrest the body of the defendant; and we are clear that it was not; and that it was not capable of being made effective by any subsequent insertion of a count, without consent of the party upon whom it was served, nor even with his consent, to the prejudice of any subsequently attaching creditors who should be able to make it appear that it.was void at the time of the attachment. The forms of our writs, as established by statute, are mere skeletons, without any sense, until filled up by a description of the parties and of the demand intended to be prosecuted ; and the latter can only be done by inserting some count descriptive of the nature of the demand. The form in the statute is- the same for almost all sorts of actions, real and personal, and a mere blank under the seal of the court and signed by the clerk thereof, has no more force than a blank deed or other instrument. The declaration, with us, is a part, and a necessary part of the writ; and therefore a plea in abatement may conclude with a prayer of judgment of the writ, although the fault is not in that part which is given in the statute, but in the declaration. Ilsley v. Stubbs, 5 Mass. R. 280. It is intended by our statute, that the party whose goods are attached, or whose body is arrested, should, at the time when he is exposed to this inconvenience, have notice of the demand made upon him ; and this shall never be less than fourteen days before the,return day of the writ; and the practice under the statute has superseded the filing of declarations according to the English practice, for which time is allowed after the day of appearance of the defendant. And there is a substantial reason for the difference, for the tapias in England, according to the present practice, amounts to nothing more than a summons, and as there is neither arrest of the person nor attachment of property, in ordinary cases, it is not necessary that the defendant should know what he has to answer, until he shall be in court; but it would not only be mischievous to the party sued, but would open a door to collusion, to suffer attachments to he made without any cause of action set forth in the writ, and therefore it has never been allowed in practice with us. Even in England special bail cannot be required beyond £40, although a debt is sworn to, unless the true cause of action is set forth in the writ; 3 Bl. Com. 287 ; and as by our law an arrest can be made, or property attached, upon the mere declaration of the plaintiff, without any oath, there is greater reason for requiring that the nature of ihe demand should be stated.

The writ, when served, must be returned into the court by the officer who makes the service ; neither he, nor the attorney who gave it to him, can alter or add to it. If a writ containing no count, nor any cause of action, should be so returned, and the defendant should not appear, no judgment can be rendered ; for the court in such case are to take the declaration for- true, and render judgment according to it; but in such case they have nothing to proceeo upon, and the writ must therefore be a nullity. But suppose the defendant, in such case, should appear, and the plaintiff should move to file a count by way of amendment, the difficulty then would be, that there is nothing to amend ; filing a count would be making a new writ, which does not come within the rule of amendments; which is founded upon a sufficient cause of action defectively set forth, or upon a change in the form of declaring for the same cause of action. Amendments must be consistent with the nature of the count or counts originally made, and for the same cause of action. Haynes v. Morgan, 3 Mass. R. 208 ; Phillips v. Bridge, 11 Mass. R. 246. This supposes a subsisting declaration when the motion to amend is made, and necessarily precludes the filing of a count by way of amendment to a writ which has no count. This rule has always been strictly enforced from regard to the rights of the defendant, of his bail, and of his other creditors where his property has been attached. Willis v. Crooker, 1 Pick. 204.

It is said in argument, that it has been the practice at the bar to put any general count into the writ, and afterwards, either by leave of court, or by consent, to add other counts more particularly stating the cause of action. As far as this can be done consistently with the rule above stated, and which indeed has been formally promulgated among the Rules oí Court last adopted, (16 Mass. R. 373,) there can be no objection ; and we know of no practice beyond this which has been sanctioned.

The writ must abate. 
      
       See Vancleef v. Therasson, 3 Pick. 12 ; Ball v. Claflin, 5 Pick. 303 ; Miller v. Clark, 8 Pick. 412.
     
      
       See Brown v. Seymour, 1 Pick. 32 ; Rathbone v. Rathbone, 4 Pick. 89, and 5 Pick. 221 ; Fairfield v. Baldwin, 12 Pick. 388.
     