Attachment

(1973) Rule 4.1, like Rules 4.2 and 4.3, does not appear in the Federal Rules, which look to "the law of the state in which the district court is held." Federal Rule 64. The practitioner should realize that attachment under Rule 4.1 does not discharge the plaintiff's obligation to effectuate service of the summons and complaint as specified in Rule 4. The rule, conforming to recent decisional abrogations of the right to attach, does not otherwise substantially change Massachusetts practice: it limits the use of the attachment process to what the law now permits. G.L. c. 223, §§ 42-83A contain detailed regulations pertaining to attachment. These are obviously too minute and lengthy for insertion in a set of procedural rules, but the practitioner contemplating any sort of attachment of any type of property, real or personal, is strongly urged to consult the statute. Rule 4.1(b) does not significantly alter Massachusetts law, under which the clerk must sign the writ. See Moriarty v. King , 317 Mass. 210, 213-214, 57 N.E.2d 633, 635-636 (1944). See also G.L. c. 223, §§ 16, 21. The Massachusetts writ must be under seal, see G.L. c. 223, §§ 16, 21 ; see also Const. Pt.. 2, c. 6, art. 5 , and must bear the teste of the first justice of the court to which it is returnable; see G.L. c. 223, §§ 16, 21; see also Const. Pt.. 2, c. 6, art. 5, and must identify the parties; Tyler v. Boot & Shoe Workers Union , 285 Mass. 54, 55, 188 N.E. 509, 510 (1933); see also G.L. c. 214, § 12 . An attachment of land or of an interest therein must contain the name and last known residence of the defendant. G.L. c. 223, § 62 . An attachment of goods also must describe the defendant. See Eaton v. Walker , 244 Mass. 23, 30, 138 N.E. 798, 800 (1923). A Massachusetts writ, under present practice, contains the date of its issuance, which is prima facie evidence of the time of the bringing of the action. Moriarty v. King, 317 Mass. 210, 214, 57 N.E.2d 633, 636 (1944); see also Lapp Insulator Co., Inc. v. Boston and Maine Railroad , 330 Mass. 205, 213, 112 N.E.2d 359, 364 (1953). Massachusetts writs run throughout the Commonwealth, G.L. c. 223, § 20 ; this will be true under Rule 4.1(b). Like Rule 4.1(b), present statutory practice limits the attachment to the amount of the claim, plus interest and costs. G.L. c. 223, § 42A ; see also G.L. c. 223, § 114 . If attachment is made subsequent to service of the original complaint and summons, Rule 4.1(c) requires service upon the defendant of a copy of the writ of attachment which must contain a copy of any endorsement by the officer on the original writ. Such service, although it must be made "promptly" (that is, as soon as may be), may be made by mailing the copy to the defendant's attorney, or to the defendant, if he is unrepresented. See Rule 5(b) . Rule 4.1(c) changes Massachusetts practice as to service of the summons. After the attachment of a resident defendant's property, Massachusetts formerly required that a separate summons be served on the defendant stating the value of the goods attached. The service of that summons constituted sufficient service of the original summons. See G.L. c. 223, § 17; Callaghan v. Whitmarsh , 145 Mass. 340, 341, 14 N.E. 149, 151 (1887); Wilbur v. Ripley , 124 Mass. 468, 469 (1878). Service upon a non-resident was accomplished in the same manner, if the court could acquire sufficient personal jurisdiction. Peabody v. Hamilton , 106 Mass. 217, 220 (1870). In an equity suit, the court generally issued a subpoena, served in the same manner as an original writ of summons. See G.L. c. 214, § 7 and Squire v. Lincoln , 137 Mass. 399, 403 (1884). A defendant was given a copy of an original summons or subpoena. See G.L. c. 223, § 41. Rule 4.1(c)'s limitation of thirty days changes Massachusetts practice. G.L. c. 223, § 30 allows the summons to be served at any time after the attachment has been made, if it is served the required number of days before the return day for the service of the original writ. The equity practice is the same as the practice at law, former G.L. c. 223, § 41. Rule 4.1(c), establishes a basic procedure to ensure that attachment of defendant's property (real or personal) hews to constitutional lines. Fuentes v. Shevin , 407 U.S. 67, 80 (1972); Schneider v. Margossian , 349 F. Supp. 741, 745 (D.Mass.1972); Bay State Harness Horse Racing & Breeding Association v. PPG Industries , 365 F. Supp. 1299 (D.Mass.1973). Rule 4.1(f) affords a remedy against plaintiff's unfairly being deprived of security for his judgment. The basic principle – no attachment without a prior court order after notice and hearing – is thus subject to limited exception if fair security is imperilled. And even this exception requires a court hearing (albeit ex parte) on a motion supported by affidavits. See Rule 4.1(h) and 4.1(i). Moreover the procedure for dissolution of an attachment obtained ex parte is summary and weighted in defendant's favor. Rule 4.1(d)'s allowing of attachment in the case of a counterclaim, a cross-claim or a third party complaint did not formerly exist in Massachusetts practice. Rule 4.1(e) is similar to existing practice, G.L. c. 223, § 85, and covers two situations: (1) cases in which attachment is made for the first time, after service of process; (2) cases in which attachment was made when process was served, and an additional attachment is sought thereafter.