Km 3S3 Qlnrnpll ICam ^rl|00l library Cornell University Library KFM2935.B53 Answers and..pleadings,IU,±r4,^|,ila 3 1924 024 686 259 Cornell University Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024686259 ANSWERS AND PLEADINGS IN ACTIONS AT LAW Under the Practice Act of 1 8^2 of Massachusetts TO WHICH IS PREFIXED THE PRACTICE ACT AS AMENDED THE ACT OF 1SS3, CHAP. 223, GIVING LIMITED JURISDICTION IX EQUITY TO THE SUPERIOR COURT; AND THE ACT OF 1885, CHAP. 384, RELATING TO RETURN DAYS AND PRACTICE IN THE SUPREME JUDICIAL AND SUPERIOR COURTS •y *<"- By X.'^C. berry COUNSELLOR-AT-LAW BOSTON PUBLISHED BY THE AUTHOR 1887 Copyright, 1887, By N. C. berry. RAND AVERY COMPANY, ELECTROTVPERS AND PRINTERS, BOSTON. PREFACE. An attempt is made in the following work to deduce from the decisions of the Supreme Judicial Court of Massa,chusetts on the practice act, passed in 1852, rules for defence in civil actions. The practice act has now been in use — the chart of the profession — for about thirty-five years. Nu- merous decisions have been given upon it by the full court, — a majority of them upon appeals and ex- ceptions by defendants. The act itself is the work of eminent lawyers. In the Legislature of Massachusetts of 1849, Hon.B. R. Curtis of Boston, then a member of the House, intro- duced the following resolutions : — Resolved, That the governor, with the advice and consent of the council, be authorized to appoint three persons, who shall constitute a board of commissioners, whose duty it shall be to revise and reform the proceedings in the courts of justice in this Commonwealth, except in criminal cases, and report the same to the Legislature, subject to its adoption or modification. Ill IV Preface. Resolved, That the duties of the commissioners shall embrace the consideration and revision of the mode of bringing parties before the court, and their respective allegations, the trial of questions of fact and of law, the summoning of witnesses, the question who may be witnesses, and who may be compelled to give testimony, the manner of their examination, and the com- petency of evidence, the judgment to be rendered, its execution, appeals, arbitration, prorogation, and remedial writs, and all' processes against absent and insolvent debtors. (Hall's Mass. Practice, p. 135.) These resolutions passed both branches of the Legislature unanimously. Gov. Boutwell appointed Benjamin R. Curtis of Boston, Nathaniel J. Lord of Salem, and Reuben A. Chapman of Springfield on the commission. Two years afterward, in the Legislature of 185 1, the commissioners, through their chairman, the Hon. B. R. Curtis, reported a bill, which was passed sub- stantially as reported (St. 185 1, c. 233). The next year, by St. 1852, c. 312, the bill was passed in a new draft retaining the main features of the original, which has continued to be the practice act of the profession to the present time. The three commissioners were learned and able lawyers in full practice. The chairman, Judge Curtis, in the autumn of the same year that he reported the bill, was appointed a judge of the Supreme Court of Preface. v the United States, where he remained six years, when he returned to the bar in Boston, and was afterward in practice for seventeen years till his death in 1874. The amount of his business for those seventeen years can be measured somewhat by the eighty reported cases he argued in the reports of Massachusetts, and of the forty-six in the United States Supreme Court, reported in Howard and Wallace Reports. ("Life and Writings of B. R. Curtis," p. 267.) R. A. Chapman was subsequently appointed a judge of the Supreme Judicial Court of Massachu- setts in i860, and remained on that bench thirteen years, the last, five as chief justice. N. J. Lord, the brother of the late Judge Otis P. Lord, died soon after the bill was reported to the Legislature. At the time of his appointment on the commission, he was considered the leader of the Essex bar. The practice act could not have been passed in a more opportune time in order that it might fall into the hands of able expounders of it. Chief Justice Shaw continued on the bench of the Supreme Judi- cial Court eight years after its passage. He was from the bar, and appointed chief justice of that court in 1830, and retired in i860. He, therefore, administered the law in conjunction with his learned and able associates on the bench, while the practice VI Preface. continued under special pleading till 1836, when "special pleas were abolished ; thence under the plea of general issue and specifications of avoidance till 1852. He had as his associates during the eight years the practice act was constantly before the full court, and while he remained on the bench, Hon. Qharles A. Dewey, who was appointed in 1837, and died while a member of the court in 1866; and George Tyler Bigelow, who succeeded him as chief justice, who was a member of that court from 1850 to 1867, — a period of seventeen years, whose reported opinions are models of excellence ; besides others, all of whom were well read and learned in the old sys- tem of special pleading, and could see at a glance how the practice act differed from that system. It may be said that the practice act of Massachu- setts is based on the system of special pleading, — as all good systems of pleading must be, — though in many respects largely deviating therefrom ; so much so, that it has become, in the light of the decisions, a complete system of itself. It is far from being a loose system of practice. In some r'espects it re- quires the defendant to set forth matter of defence which in special pleading can be put in under the general issue, giving the plaintiff no intimation of the defence till shown by the evidence. Preface. vii Also it may. be said that the questions arising on the practice act were mainly settled before Chief Justices Shaw and Bigelow left the bench ; that the cases that have been carried up since on the practice act, or majority of them, involved the same questions that had already been decided ; that during the first eight years that the act became the guide of the profession, one hundred cases, at least, received the construction of the full court, each upon some por- tion of it. In order to make each division as complete as possible, it became necessary to repeat the principle or rule under each, when the same applied to more than one division. In preparing this little treatise, the author has en- deavored to make it as comprehensive as possible, — doing little more than announcing the bare rules and citing the authorities, which is sufficient for those who have been some time in the practice of law ; but for the student at law, the authorities themselves should be studied where the reasons are given by the great masters of the law. The commissioners appended to the practice act a few forms of pleading for examples, which they say may be used ; and the author does not add to them others, — except a demurrer and the plea of nul dis- VIII Preface. seisin, -r- because he perceives they intended the pleader should answer in his own language, instead of being confined to a particular form of words. Small as this treatise is, it has cost the author no little time and labor to prepare it, — to ascertain the true deviation of the practice act from the system of special pleading, to which, he occasionally refers. The want of the practitioner is to know the result or rule. And such is attempted to be given in the main. The learning requisite to make the proper answer to declarations must, of necessity, include the learning necessary to draw declarations. For convenience, the practiqe act of Massachusetts is prefixed with the amendments incorporated to the present time. Also the act giving the Superior Court limited jurisdiction in equity ^St. 1883, c. 223) ; and the act of 1885, chap. 384, relating to return days of writs in the Supreme Judicial and Superior Courts. N. C. B. Boston, Aug. 20, 1887. CONTENTS. ANSWERS COMMENCE WITH DEMURRERS COMMENCE WITH ABATEMENT COMMENCES WITH INTERROGATORIES TO PARTIES INDEX SECTION I* " 53 " 153 " 172 PAGE igg * These sections refer to those in the text, and not to sections in the Practice Act. IX CASES CITED. Section ■ Allen vs. Charlestown, 109 Mass. 243 . . . .71 Ames vs. Stevens, 120 Mass. 218 102 Amherst & B. R.R. vs. Watson, 4 Gray 62 , . .60 Amsinck vs. Am. Insurance, 129 Mass. 185 . . -34 -Ashuelot Bank vs. Pearson, 14 Gray 52 ... . 165 Bacon vs. Charlestown, 7 Cush. 585 51 Barrett vs. Maldfen & Melrose R.R., 3 Alien loi . . 52 Bartol vs. Stanwood, 7 Cush. 115 89 Batchelder ^/j. Batchelder, 2 Allen 105 .... 62 Baker T/j. Carpenter, 127 Mass. 226 . . . • I73i 185 Baxter •z/j. Massasoit Ins., 13 Allen 320 .... 179 Bassett vs. Haworth, 14 Mass. 22 j 156 Bass vs. Haverhill Fire Ins. Co., 10 Gray 400 ... 72 Baldwin vs. Hildreth, 74 Gray 221 75 Bailey vs. Joy, 132 Mass. 357 loi Barlow vs. Leavitt, 12 Cush. 483 62 Bearce vs. Bowker, 115 Mass. 129 68 Bennett WJ. Clemence, 3 Allen 43 1 . . . . 73,91 Benton vs. City Hospital, 140 Mass. 13 . . . -94 Blackmer T/j. Davis, 16 Gray, 120 154 Blackington vs. Johnson, 126 Mass. 21 . . . .102 Boston Glass Manuf. Co. vs. Langdon, 24 Pick. 51 . 82, 164 Borrowscale vs. Bosworth, 98 Mass. 34 ... . loi Boyce vs. Wheeler, 133 Mass. 554 91 ' These sections refer to those in the text, and not to those in the Practice Act. XI XII Cases died. Bradford vs. Tinkham, 6 Gray 494 Brown vs. Wakefield, i Gray 450 Brown vs. Castles, 1 1 Cush. 348 Bruce vs. Mathews, loi Mass. 65 Bricket vs. Davis, 21 Pick. 404 . Briggs vs. Humphrey, i Allen 372 Bryan vs. Bates, 12 Allen 205 Browning vs. Bancroft, 5 Met. 88 Bridge vs. Sumner, i Pick. 371 . Burnham vs. Crowninshield, 137 Mass. 177 Burbank vs. Woodward, 124 Mass. 358 Butchers' and Drivers' Bk. vs. McDonald, 13 Mass, Burt •z'j. Merchants' Ins. Co., 115 Mass. i Burnham vs. Roberts, 103 Mass. 379 Cape Ann Nat. Bank vs. Burns, 129 Mass. 596 Carlton vs. Pierce, i Allen 26 . Case vs. Ladd, 2 Allen 130 Cassidy vs. Farrell, 109 Mass. 397 Cassidy vs. Old Colony R.R., 141 Mass. 174 Case vs. Stevens, 137 Mass. 551 Carter vs. Wabash R.R. and others, 137 Mass. 187 Calder vs. Haines, 7 Allen 389 . Caverly vs. Owen, 123 Mass. 574 Capen vs. Stoughton, 16 Gray 364 Central Bridge Co. vs. Lowell, 15 Gray 106 I Chitty PI. (pp. 204, 478, 527) . Chandler vs. Sawyer, 114 Mass. 365 , Chase vs. Sherman, 119 Mass. 391 Chenery vs. Holden, 16 Gray 126 Churchill vs. Palmer, 115 Mass. 311 . Claflin vs. Thayer, 13 Gray 459 . Clapp vs. Clapp, 137 Mass. 183 . Clay vs. Brigham, 8 Gray 161 . Cleaves vs. Lord, 3 Gray 71 Clark vs. Conn. River R.R., 6 Gray 363 . Section • 49 • 37 . 78 . 44 . 46 . 162 86,95 . 89 ■ S6 ■ 93 . 102 264 . 102 . 112 • 37 ■ 35 . lOI 73> 90. 9' • 43 76,94 • 94 . 16 . 100 • 34 ■ 70 • 71 7, 29,- 40 • 94 . 62 • 97 III, 116 • so . lOI 91, 162 . i6s Cases Cited. XIII Coke on Littleton .... Commonwealth vs. Dracut, 8 Gray 455 Commonwealth vs. Scott, 123 Mass. 418 $ame vs. Hanley, 121 Mass. 163 Same vs. Sallen, 11 Gray 52 Same vs. Paulus, 1 1 Gray 305 . Same vs. Pratt, 137 Mass. 98 Cooper vs. McKenny, 12 Mass. 284 Colt vs. Learned, 133 Mass. 41 1 Cochrane vs. Boston, i Allen 480 Cook vs. Wood, 100 Mass. 194 . Cole vs. Akerman, 7 Gray 38 Costello vs. Crowell, 134 Mass. 284 Connor vs. Harland, 130 Mass. 266 Crosby 7/j. Harrison, 116 Mass. 117 Crompton Carpet Co. vs. Worcester, 119 Mass, Cullen vs. Sears, 112 Mass. 299. Curry vs. Potter, 125 Mass. 24 . Cobb vs. Riel, 128 Mass. 11 Davis vs. Travis, 98 Mass. 222 . Davis vs. Coburn, 128 Mass. 382 Denham vs. Brj-ant, 139 Mass. no Dennehy vs Woodsum, 100 Mass. 197 Ditmar vs. Norman, 118 Mass. 323 Dixie vs. Abbott, 7 Cush. 6io Dorr vs. McKinney, 9 Allen 360 Dwight vs. Holbrook, i Allen 560 Downs vs. Hawley, 112 Mass. 241 Eastern R.R. vs. Benedict, 10 Gray 212 Eddy vs. Chace, 140 Mass. 471 . Ellis vs. Atlantic & Pacific R.R., 134 Mass. 340 Eliot vs. Eliot, 133 Mass. 555 . Ela vs. Cockshott, 119 Mass. 417 Elder vs. Dwight jManuf. Co., 604 Gray 204 86, 375 Section 22 63 95. "7 91 01 91 loi 49 56 72 S4 160 84 102 156 91 151 III 132 34 96 88 S4 no II S2 90 62, lOI 49 64 75 91 151 165, 167 XIV Cases Cited. Emerson vs. Pattee, I Mass. 482 Everett vs. Drew, 129 Mass. 151 Farwell vs. Cambridge, 1 1 Gray 413 Fay T/J. Wenzell, 8 Cush. 317 Fay vs. Guinon, 131 Mass. 36 . Fisher vs. Fraprie, 125 Mass. 472 Forbes vs. Am. Life Ins, Co., 15 Gray 249 Ford vs. Burbank, 130 Mass. 427 Foy vs. Patch, 132 Mass. 108 Fox vs. Adams Exp. Co., 116 Mass. 295 •Freeman on Judgments Freeport vs. Edgecomb, i Mass. 459 Foss vs. Nutting, 4 Gray 484 Fels vs. Raymond, 139 Mass. 100 George vs. Reed, loi Mass. 378 Geddes vs. Adams, 1 1 Gray 386 Gifford vs. Rocket, 119 Mass. 71 Granger vs. Ilsley, 2 Gray 521 . Greenwood vs. Bradford, 128 Mass. 297 Gregory vs. Prescott, 5 Cush. 67 Gray vs. Cook, 135 Mass. 189 . Greenwood vs. Bradford, 1 28 Mass. 296 Gray vs. Cook, 135 Mass. 189 Gray vs. Thrasher, 104 Mass. 375 Gott vs. Adams Exp. Co., 100 Mass. 320 Goodell vs. Trumbull, 135 Mass. 100 Goss vs. Austin, 1 1 Allen 527 . Ham vs. Goodrich, 37 N.H. 191 Hamilton vs. Jacobs, 99 Mass. joo Hall's Practice, p. 135 Hawes vs. Rider, 100 Mass. 216 Haskins vs. D'Este, 133 Mass. 356 Hayes vs. Collins, [ 14 Mass. 54 . Section ■ 137 . 82 ■ 71 • IS3 , 88 27, IS9 • 49 . 40 • 37 . 105 • 137 . 138 . 188 . 184 . loi 42 • 91 • 49 • 75 . lOI . loi . 106 ■ H7 . i6s • 193 • 30 . 42 7 • IS4 Preface ■ 34 • 34 S6, 79 Cases died. XV Harding vs. Pratt, 119 Mass. 188 Harding vs. Noyes, 125 Mass. 572 Hastings vs. Bolton, i Allen 529 Hancock vs. Franklin Ins. Co., 107 Mass. Harding vs. Noyes, 125 Mass. 572 Harding vs. Morrill, 136 Mass. 291 Hilbourne vs. Suffolk, 120 Mass. 393 Hill z/j. Dunbar, 7 Gray. 543 Harvey vs. Moseley, 7 Gray 479 Holden vs. Jenkins, 125 Mass. 446 Hogan vs. Coleman, 199 Mass. 96 Howard vs. Hayward, 4 Allen 354 Hodgkiss vs. Moulton, roo Mass. 309 HoUenbeck vs. Rowley, 8 Allen 473 HoUis vs. Richardson, 13 Gray 393 Hogan vs. Ward, 117 Mass. 67 . Hotchkiss vs. Judd, 12 Allen 447 Houghton vs. Ware, 1 13 Mass 49 Hobbs vs. Stone, 5 Allen 1 1 1 Hulet vs. Stratton, 5 Cush. 539 . Hunt vs. Lucas, 99 Mass. 405 Hubbard vs. Moseley, 11 Gray 170 Huntress vs. Burbank, ill Mass. 213 Hulet vs. Pixley, 9 Mass. 29 Huber vs. Hoffman, 106 Mass. 346 Hubbard vs. Hubbard, 6 Gray 362 Jackman vs. Doland, 116 Mass. 551 Jaha vs. Beleg, 105 Mass. 208 . Jewett vs. Locke, 6 Gray 238 Joannes vs. Underwood, 6 Allen 240 Johnson vs. Underwood, 6 Allen 242 Jordan vs. Siebert, 126 Mass. 25 Knapp vs. Slocum, 9 Gray 75 Kellogg vs. Kimball, 122 Mass. 164 "3 Section . 91 . loi 159, i6s, 167 173, 186, 192 . 183 . 183 • 71 . 102 . 94 • 35 • 37. ■ 37 . 46 ■ 49 68,84 • 91 . 92 . 156 177, 180 7 • 17 • 37 . 63 loi, 107 • 115 . i8s • 44 89, 160 . 62 • 95 86,87 S6, 164 • 37 60, 65, 70, 80, 91, 96 XVI CcLSis Ctiid. Keller vs. Webb, 136 Mass. %% , Kent vs. Kent, 3 Mass. 338 1 . Kennedy vs. Langdon, 123 MaSS. igj Kennedy vs. Goodlng, 7 Gf&y 4t7 Knowles vs. Batchelder, 106 Ma««i 343 Leonard vs. O'Rlley, 137 Mass. 138 Lewis vs. Brooks, 121 Mass. 501 Lee vs. Kane, 6 Grsy 496 . Lothrop vs. Brown, 112 Mass. 107 Lincoln vs. Lincoln, 12 Gray 45 . Lowell vs. Morse, I Met. 473 Lyons vs. Ward, 124 Mass. 364 . Marvin vs. Mandell, 125 Mass. 568 37 Marble vs. Keyes, 4 Gray 570 149 May vs. W. U. Tel. Co., iiz Mass. 90 . . 53, 92, loi, 103 Mason iij. Pearson, 118 Mass.'6l 70 Mahervs. Doherty, 11 Gray 16 91 Marshall vs. Merritt, 13 Allen 274 91 Millard vs. Baldwin, 3 Gray 486 . . . . .83 Minturn t/j. Manufacturers' Ins. Co., 10 Gray 504 . . 60 Mitchel vs. Shanley, 1 2 Gray 206 75 McRae wj. Locke, 114 Mass. 96 . . . . 86,95 McQuade WJ. O'Neill, 15 Gray 52 165 McGregory vs. Prescott, 5 Cush. 67 52 McMahon z'j. O'Connor, 137 Mass. 217 . . . .111 Montague vs. Boston & Fair Haven Iron Works, 97 Mass. 502 . 40 Morris z/j. Farrington, 133 Mass. ,466 . . . . i68 Mullaly vs. Austin, 97 Mass. 30 . . . . . .101 Minot vs. Prout, Quincy's Rep., p. II . . . . 138 Mulry vs. Mohawk Valleylns. Co., 5 Gray 541 . , 27 Morton ^/j. Sweetzer, 12 Allen 135 156 . 88 . 138 1S4, 15s 187 72 lol 49 82 162 37 78 62 Cases died. XVII Section National Bank of Clinton vs. Taylor, 117 Mass. 283 . 91 New Haven & North Hampton Co. vs Campbell, 128 Mass. 107 96, loi Nicliols vs. Prince, 8 Allen 405 . Norton vs. Huxley, 13 Gray 258 56 Norris vs. Lynch, 121 Mass. 586 102 Norris vs. Munroe, 128 Mass. 386 .... 107, 128 Oliver vs. Colonial Gold Co., 1 1 Allen 285 O'Loughlin vs. Bird, 128 Mass. 600 . Opinion of the Justices, 126 Mass. 557 Osborne vs. Osborne, 114 Mass. 515 Osgood vs. Lynn, 130 Mass. 335 41,64 27, 80, 158, 164 • 135 . 63 . 168 Parks vs. Hampden, 120 Mass. 395 71 Payson vs. Macomber, 3 Allen 69 loi Parker wj. Kenyon, 1 1 2 Mass. 264 . . . .154,155 Peck vs. Waters, 104 Mass. 351 Perkins t/j. Burbank, 2 Mass. 81 , . . . -57 Peck vs. Ashley, 12 Met. 478 173, 180 Phillips z'j. Cummins, n Cush. 469 103 Piatt 7/j. Justices Superior Court, 124 Mass. 354 . . 117 Powers vs. Prov. Institution for Savings, 122 Mass. 443 . 105 Preston vs. Neale, 12 Gray 222 62 Priest vs. Groton, 103 Mass. 533 . . 126, 133, 149, 140 Pratt vs. Sanger, 4 Gray 88 162 Proprietors of Kennebec, i Mass. 483 .... 138 Putnam vs. Bond, 102 Mass. 370 168 Proctor vs. Stone, i Allen 196 . . . . .96, 107 Reed vs. Home Savings Bank, 130 Mass. 444 . . . 106 Reed wj. Sutton, 2 Cush. 115 106 Rea vs. Harrington, 58 Vt. 184 93 Reed vs. Smith, i Allen 521 83 Reed vs. Scituate, 7 Allen 141 49 Regan vs. Baldwin, 126 Mass. 485 97 XVIII Cases Cited. Riley vs. Farnsworth, ii6 Mass. 225 . Richmond vs. Whittlesey, 2 Allen 233 Rich vs. Lancaster R.R., 114 Mass. 514 Rodman vs. Guilford, 112 Mass. 405 . Robinson vs. Howard, 7 Cush. 61 1 . Sawyer vs. Pratt, 9 Met. 170 Safford vs. Knight, 117 Mass. 283 Sawyer vs. Gale Iron Works, 116 Mass. 424 Santom vs. Ballard, 133 Mass. 464 . Sears vs. Trowbridge, 15 Gray 185 . Sheldon vs. Kendall, 1 1 Cush. 74 Shawmut Mutual Fire Ins. Co. vs. Stevens, 9 Allen Smith vs. Dexter, 121 Mass. 599 Smith vs. Milton, 133 Mass. 369 Seagrave vs. Erickson, 1 1 Cush. 90 . Silver vs. Jordan, 139 Mass. 280 Stone vs. White, 8 Gray 595 Spooner vs. Gilmore, 136 Mass 248 . Stetson vs. Exchange Bank, 7 Gray 425 Sterne vs. Filene, 14 Allen 9 Stackpole vs. Hunt, 9 Allen 539 Stults vs. Silver, 119 Mass. 137 . Stetson vs. Walcott, 15 Gray 545 Stearns vs. Washburn, 7 Gray, 187 . Snow vs. Chatfield, 11 Gray 12 . Suffolk vs. Lowell Bank, 8 Allen 357 . Sullivan vs. Fitzgerald, 12 Allen 482 . Suit vs. Woodhall, 116 Mass. 547 Tarbell vs. Gray, 4 Gray 444 Taylor vs. Taunton, 1 13 Mass. 290 . Teague vs. Irwin, 134 Mass. 307 Terry vs. Brigham, 133 Mass. 536 Thompson vs. O'Sullivan, 6 Allen 303 Townsend vs. Gibbs, 11 Cush. 158 . Thissel vs. Page, 1 1 Gray 394 . Section . 91 89, 156, 171 71, 86, 95 37 II 89 91 151 i6s 92 188 62 332 SI: 1 59: 60, 155 92 I, 160 84 88 35 91 lOI 154 37 194. 34 49 96 10 1 44 37 115 loi 117 85,97 183. 42 Cases Cited. XIX Upham vs. Damon, 12 Allen 98 . Van Buren vs. Swan, 4 Allen 381 Ward vs. Bartlett, 12 Allen 419 . Warren vs. Ferdinand, 9 Allen 357 Warren vs. Lord, 131 Mass. 560 Way vs. Smith, iii Mass. 525 . Wheaton vs. Nelson, 11 Gray 15 Ward vs. Bartlett, 12 Allen 419 . Wade vs. Howard, 8 Pick. 353 . Washington vs. Ames, 6 Allen 419 Washington vs. Houghton, 109 Mass. 481 Walpole vs. Gray, 1 1 Allen i jo . Webber vs. Davis, 5 Allen 397 . West vs. Piatt, 120 Mass. 421 . Wilbur vs. Gilmore, 21 Pick. 250 Witt vs. Potter, 120 Mass. 360 . Whittemore vs. Ware, no Mass. 352 Whitney vs. Houghton, 127 Mass. 529 Wildes vs. Marshall, 117 Mass. 311 . Wheaton vs. Nelson, 11 Gray 15 Wheelwright vs. Wheelwright, 2 Mass. 447 Whithead vs. Keyes, 3 Allen 498 Willard vs. Stone, 13 Gray 475 . Whipple vs. Rierson, 12 Gray 347 Wilson vs. Webber, 2 Gray 561 . Willard vs. Williams, 7 Gray, 185 Woodbury vs. Jones, 3 Gray 261 Worthington vs. Scribner, 109 Mass. 487 Wood vs. Hudson, 114 Mass. 513 Worthington vs. Houghton, 109 Mass. 486 Young vs. Gilles, 113 Mass. 34 . York vs. Johnson, 116 Mass. 482 Section 63 44 49 34 84 37 49 49 S6 59-96 96 160 85, 102 105 s(> 63, 102 64 88 ' 99 loi 138 I S3 154 160 173 40,52 52 188 71 (>S 82,158,162 . 92 CHAPTER 167. OF PLEADINGS AND PRACTICE. PLEADINGS. Section. Forvts at Law, A. Forms of actions. Declarations, etc. ■£. Forms of declaring at law. Substan- tial facts only required. One count for each cause, but any number of breaches. What counts and causes of action may be joined. Common counts, how used. When account annexed may be used. , Form in tro- ver. Written instruments, how de- clared on. If lost, substance to be stated. Eonds and other conditional contracts, how declared on. 3. In real actions on mortgage, etc. 4. Declarations, etc., where persons are severally liable on contracts in writ- ing. 5. Mode of referring to statutes. 6. Place 'of alleged trespass, to be de- scribed by name, etc. 7. No declaration in writ in actions of contract or tort, unless, etc. Con- tinuance in such cases, when allowed. 8. Declaration to be filed on or before the day the writ is returnable, 9. if not in writ or so filed, action dis- continued, unless, etc. 10. Bill of particulars, when required. Demurrers. 11. Demurrer. 12. causes of, specified. Certificate. Answers, Replications, etc, 13. Answer in abatement, etc. 14. When answer in abatement overruled. 15. Special pleas in bar abolished, and general issue, except, etc, 16. Joint answer. 17. Substantive facts denied, etc. 18. Answers and denials, when and how made. 19. Must declare whether whole or part is denied. 20. Each substantive fact relied on to be clearly stated. When answer sets up any legal bar, etc. ,21. Signatures to be taken as admitted, unless denial of their genuineness is filed. 22. Written instruments set out, etc. 23. Conditional obligations set out, etc. 24. No pleading after answer, but by order of court. Plaintiff may demur, and in certain cases reply. 25. Further pleading, demurrer, etc. Joinder in demurrer, etc. 26. Facts occurring since suit. Supple- mental declaration, etc. 27. may be alleged alternatively. Of Pleadings and Practice, 28. Pleadings so construed as to give cer- tainty, etc. 29. Suit when at issue. PRACTICE. Indorsetnent of Process after Entry. 30. Indorser, when required. 31. removing, etc., another required. 32. may be required in probate cases, etc. 33. if not procured, suit dismissed. 34. may be substituted.' LiabiUty. Abatement, 35. No writ, etc., abated for circumstan- tial errors. 36. If defendant pleads nonjoinder, new defendants may be joined. 37. Proceedings for that purpose, 38. Same subject. 39. Judgment, execution, etc., in such case. 40. Final judgment upon issue of fact. A ntendments. 41. Amendments, etc., upon matter in abatement. 42. changing parties, form, etc. 43. changing suits at law into proceed- ings in equity, and vice versa. 44. after judgment. Defaults. 45. Defendant, when defaulted. 46. Default may be taken off for cause shown. 47. Same subject. Advancing Causis for Speedy Trial, 48. Actions to recover a debt or liqui- dated demand, how advanced for trial. Interrogatories. 49. Parties may file interrogatories, etc. 50. Affidavit to be annexed to interroga- tories. 51. Answers to be filed. 52. to be in writing and on oath. 53. Officers of corporation may be ex- amined. 54. Each interrogatory to be answered. 55. Parts of books, etc., called for, con- taining matter not pertinent, may be sealed up, etc. 56. Party not obliged to criminate him- self, etc. 57. Irrelevant matter to be expunged. Answer to be full, etc. 58. Costs, when answer irrelevant, etc. 59. If party disobeys order, court may enter nonsuit or default. 60. Court may allow interrogatories to be filed during trial. Interlocutory Orders. 61. Court may order statement of grounds of action, etc. 62. Orders, etc, preparatory to trial. Agreements of Parties, 63. Orders may be entered by consent, etc. ; agreements of attorneys to be in writing. 64. Parties may agree respecting con- tinuances, filing papers, etc. Offer of Judgment, 65. Defendantmayoffer judgment. Plain- tiff may accept with costs. Time to elect. 66. If plaintiff does not accept, nor re- cover greater sum, defendant allowed costs. Hearings Trials Evidence, 67. Demurrers, how heard, determined, etc. 68. frivolous or immaterial may be overruled, 69. Separate lists to be kept of jury cases, and no case entered thereon, unless notice is filed. Of Pleadings and Practice. 3 70. Exceptions- New trial. Review. 71 . Trials not to be delayed or postponed. 72. Same subject. 73. Local action in wrong county, court may nonsuit. 74. Counts not proved, etc., may be stricken out. 75. Pleadings, etc., not evidence. 76. Offer of judgment not accepted, not evidence. 77. Answers to interrogatories may be read at trial by the other party, etc. 78. One matter in answer not evidence of another. 79. Justification in slander not proof of malice. 80. Truth of alleged libels may be given in evidence, etc. 81. In action on judgment by default, court may allow evidence of payment. A rresi of yndgment. 82. No arrest of judgment for cause be- fore verdictj except, etc. General Provisions. 83. -Suggestions entered on record. 84. Rules of evidence not changed, etc. 85. Cause of action ; amendment; notice to parties, appeal, etc. '86. Affidavit when corporation is a party. 87. The fact that a party is executor, etc., to be taken as admitted, unless, etc. 88. Certain provisions of the chapter to apply to real and mixed actions. 89. Specified sections to apply to civil actions before trial justices and police, district, and municipal courts. go. Same and other specified sections to apply to such actions before munici- pal and certain district courts. Said courts may order defendant to file answer. 91. Same and other specified sections to apply to such actions before the municipal court of the city of Boston. 92. Certain sections not to apply to actions before police, etc., courts, and trial justices, 93. Interrogatories in actionsbefore police courts, etc., may be filed, etc. Forms. 94. Forms authorized. May be altered by supreme judicial court. [* applies to civil actions before trial justices, and before any police, district, or municipal court. See § 89. T applies to real and mixed actions. See § 88. I applies to the municipal court of the city of Boston, See § 91. applies to all the municipal courts of the city of Boston; the first, second, and third district courts of Bristol; the first district court of Essex; the first district courts of northern, eastern, and southern Middlesex; the district court of eastern Norfolk; the second, third, and fourth district courts of Plymouth; and the central district court of Worcester. See § 90.J 4- Of Pleadings and Practice. PLEADINGS. Forms at Law. *Section I. There shall be only three divis- ions of personal actions : First. Actions of contract, which shall in- clude those heretofore known as actions of assumpsit, covenant, and debt, except for penalties. Forms of actions. P. S. 1. 167, § i. 140 Mass. 509. Second. Actions of tort, which shall include those heretofore known as actions of trespass, trespass on the case, trover, and all actions for penalties. Third. Actions of replevin. Declarations, etc. *Sect. 2. The form of declaring in personal actions shall be according to the following par- ticulars : — Form of declaring at law. P. S. 167, § 2. First. The action shall be named in conform- ity with the divisions specified in section one. Second. No averment need be made which the law does not require to be proved. 112 Mass. 237. J 17 Mass. 195. 121 Mass. 346. 9 Gray 74. 105 Mass. 71. Pleadings. 5 Third. The substantive facts necessary to constitute the cause of action may be stated with substantial certainty, and without unneces- sary verbiage. Substantial facts only required. 4 Gray 446. 8 Gray 589. 10 Gray 361. 15 Gray 249. i Allen 521. 9 Allen 358. 14 Allen 59. 99 Mass. 621. 102 Mass. 58. 103 Mass. 21. 114 Mass. i. 127 Mass. 248. Fourth. One count only need be inserted for each cause of action, but any number of breaches may be assigned in each count, and when the nature of the case requires it, breaches may be assigned in the alternative. Two causes of action, not arising on the same contract, shall not be embraced in one count, except in the count on an account annexed, as hereinafter provided. One count for each cause, but any number of breaches. 9 Allen 557. 112 Mass. 237. Fifth. Any number of counts for different causes of action belonging to the same division of actions may be inserted in the same declara- tion. Actions of contract and actions of tort shall not be joined ; but when it is deemed doubtful to which of those classes a particular cause of action belongs, a count in contract may be joined with a count in tort, averring 6 Of Pleadings and Practice. that both are for one and the. same cause of action. What counts and causes of action may be joined. 7 Gray 562. 102 Mass. 439. 107 Mass. 369. 124 Mass. 50. 125 Mass. 477. 142 Mass. 128. Sixth. The common count shall not be used unitedly, but each one of those counts may be used in the form hereinafter prescribed, when the natural import of its terms correctly describes the cause of action. Common counts, how used. 7 Gray 187, 15 Gray 293. Seventh. A count on an account annexed, in the form hereinafter prescribed; may be used in an action of contract, when one or more items are claimed either of which would be correctly described by any one of the common counts according to the natural import of its terms. when account annexed may be used. 7 Gray 187, 190. 9 Allen 356. II Allen 123. 99 Mass. 1. 106 Mass. 430. iii Mass. 390. 127 Mass. 546. Eighth. In the action of trover, the form hereinafter prescribed shall be used. Trover. 2 Gray 564. Ninth. All written instruments, except poli- cies of insurance, shall be declared on by setting out a copy or such part as is relied on, or the legal effect thereof, with proper averments to Pleadings. y describe the cause of action. If the whole con- tract is not set out, a copy or- the original, as the court may direct, shall be filed on motion of the adverse party. Where it may be necessary, the copy so filed shall, if the court so orders, be part of the record, as if oyer had been granted of a deed declared on according to the common law. No profert or excuse therefor need be inserted in a declaration. If the instrument relied on is lost or destroyed, or is not in the power of the party who relies on it, he shall state the substance of it as nearly as he can, and the reason why a copy is not given. Written instruments, how declared on. If lost, substance to be stated. I Gray 544. 4 Gray 455. 11 Gray 10, 179. 14 Gray 129. 15 Gray 87. 16 Gray 386. 12 Allen 396. 103 Mass. 44, 3S0. 13S Mass. 159. 138 Mass. 203. Tenth. When a bond, or other conditional obligation, contract, or grant is declared on, the condition shall be, deemed part of the obligation, contract, or grant, and shall be set forth ; breaches relied on shall be assigned ; and con- ditions precedent to the right of the party relying thereon shall be averred to have been performed, or his excuse for the non-performance thereof stated. Bonds and other conditional contracts, how declared on. 14 Gray 109. 138 Mass. 203. 8 Of Pleadings and Practice. fSECT. 3. In real actions founded on mort- gage titles, the declaration shall allege the seisin to be " in mortgage." In real actions on mortgage. P. S. c. 167, § 3. 14 Gray log. 103 Mass. 479. *Sect. 4. Persons severally liable upon con- tracts in writing, including all parties to bills of exchange and promissory notes, may all or any of them be joined in the same action. The declaration may include one count only, describ- ing the several contracts of the defendants when the same contract was made by each ; or differ- ent counts, describing the different contracts of the defendants, when, as in the case of maker and indorser, the same contract was not made by all. The court shall take such order for the separate trial of the issues as shall be found most convenient, and shall enter several judg- ments according to the several contracts of the defendants, and issue one or more executions, as the case may require. Declarations, etc., where persons are severally liable on contracts in writing. P. S. c. 167, § 4. 13 Allen 19, 217. 16 Gray 473. 118 Mass. 3S0. irg Mass. 3&1. 133 Mass. 412, f*SECT. 5. A general statute may be referred to in declarations or other pleadings by specify- ing the chapter containing the provision referred Pleadings. g to, or by mentioning in general terms the sub- ject of the statute, or by referring to it in such manner as shall indicate with sufficient certainty the statute intended. Mode of referring to statutes. P. S. c. 167, § 5, *Sect. 6. In actions of tort for breaking and entering the plaintiff's close, the place of the alleged trespass shall be designated in the declaration by name, abuttals, or other proper description. Plaintiff's close to be described, in tort, etc. P. S. c. 167, § 6. 97 Mass. 419. *Sect. 7. In actions of contract and actions of tort, unless an arrest of the person is made, the writ need not contain a declaration, nor any description of the cause of action in which it is intended to declare, other than the name of the form thereof: but when in such actions in police, district, and municipal courts, and before trial justices, the declaration is not inserted before the service of the writ, the defendant shall, upon motion, be entitled as of right to a continuance for at least seven days from the return day. Declaration need not be in writ, unless, etc. P, S. 167, § 7. 1862, 20, §§ I, 3. I Allen 273. 9 Allen 257. 10 Of Pleadings and Practice. *tSECT. 8. The declaration may be filed in the clerk's office on or before the day on which the writ is returnable, unless an arrest of the person is made. If there is an attachment of property, and the declaration and bill of particu- lars, when necessary, are not inserted in the writ, a copy thereof shall be furnished to the defendant or his attorney within three days after he has demanded the same in writing of the plaintiff or his attorney. Declaration to be filed on or before the return of the writ, unless, etc. P. S. c. 167, § 8. i86z, 20, § 2. 7 Gray 409. lit Sect. 9. If no declaration has been in- serted in the writ or filed pursuant to the pre- ceding section, the action may at any time upon motion be dismissed with costs : but the court may at any time before such dismissal, in its discretion, allow the plaintiff to file his declara- tion upon such terms, if any, as it shall think fit. If declaration is not in writ or filed, action discontinued, unless, etc. G. S. 129, § 9. St. 1885, c. 3S4, § 6. I Gray 446. 9 Allen 257. *Sect. 10. In actions of contract, when either of the common counts is used, the plaintiff shall file a bill of particulars with his writ when the action is entered. The items in such bill shall be numbered consecutively, and it shall be deemed Pleadings, li to be part of the record and be answered or replied to as such. Bill of particulars when required. P. S. 167, § 10. 12 Gray 222, i Allen 273. 100 Mass. 152. 105 Mass. 21. Demurrers. II Sect, i i . To raise an issue in law, the an- swer shall contain a statement that the defendant demurs to the declaration or to some one or more counts therein, as the case may be, and shall assign specially the causes of demurrer. Demurrer. P. S. c. 167, § 11. See §§ 67,68. 6 Allen 417. 9 Allen 334. II Allen 283. 12 Allen 98. 97 Mass. 30. 112 Mass. 90, 119 Mass. 388. 122 Mass. 163. 125 Mass. 360. II f Sect, i 2. Demurrers may be for the follow- ing, among other causes : — Causes of, specified. P. S. 167, § 12. 13 Gray 64. 6 Allen 236. First. That counts in contract and in tort, or either with replevin, or a count in the plaintiff's own right and a count in some representative capacity, are improperly joined in the declara- tion. 12 Cush. 483. Second. That the declaration or some count thereof, as the case may be, does not state a legal cause of action substantially in accordance with the rules contained in this chapter. 112 Mass. 237. 12 Of Pleadings and Practice. Third. That the answer does not state a legal defence to the declaration or to some count thereof, as the case may be, substantially in accordance with such rules. 6 Allen 406. The particulars in which the alleged defect consists shall be specially pointed out, and the attorney, if any, shall certify upon the demurrer that he is of opinion that there is such probable ground in law therefor as to make it a fit subject for judicial inquiry and trial, and that it is not intended merely for delay. Certificate. 16 Gray 125. i Allen 193. 8 Allen 356. 100 Mass. 195. 109 Mass. 481. 114 Mass. 487. 118 Mass. 380, Answers, Replications, etc. JSect. 13. A defence to a real, personal, or mixed action, which might have been made by plea in abatement, may be made by answer con- taining such allegations or denials as may be necessary to constitute such defence. Answer in abatement, etc. P. S. 167, § 13. 12 Met. 266. 13 Gray 459. ■ji Allen 149. 12 Allen 134. 105 Mass. 208. 121 Mass. 107, 597. JSect. 14. When an answer in abatement is overruled on demurrer, or when an amendment is allowed and made by the plaintiff in conse- Pleadings. ij; quence of such answer in abatement, the defend- ant shall, within such time as the court shall order, answer, or in a real or mixed action plead, to the merits. When overruled on demurrer, etc. P. S. 167, § 14. 4 Gray 88. , JSect. 15. Special pleas in bar as formerly used, and the general issue in all except real and mixed actions, are abolished, and in place thereof the defendants shall file an answer to the decla- ration. In real and mixed actions the defendant may give in evidence under the general issue all matters which might formerly have been pleaded in bar. Special pleas in bar abolished, except, etc. P. S. 167, § 15. 19 Pick. 455. 6 Gray 107. 123 Mass. 187. Jf Sect, i 6. Two or more defendants making the same defence may answer jointly. Different consistent defences may be separately stated in the same answer. Joint answer. P. S. 167, § 16. 11 Gray 15. 3 Allen 73. JSect. 17. The answer shall deny in clear and precise terms every substantive fact intended to be denied in each count of the declaration separately, or shall declare the defendant's igno- rance of the fact, so that he can neither admit 14 Of Pleadings and Practice. nor deny, but leaves the plaintiff to prove the same. Substantive facts denied, etc. P. S. 167, §77. 5 Gray 457. 6 Gray 494. 4 Allen 577. 5 Allen 599. 6 Allen 10. 7 Allen 61, 435. 10 Allen 18, 460. II Allen 523, 525. 98 Mass. 222. 100 Mass. 216. 119 Mass. 376. 123 Mass. 574. 124 Mass. 457. 126 Mass. 399. JSect. 18. In answering the common counts and the count on an account annexed, the de- fendant shall answer specifically every item contained in the bill of particulars or account annexed, but he may make one and the same allegation or denial concerning any number of items to which such allegation or denial is appli- cable, specifying the number of the items thus answered together when less than the whole. If the defendant denies that an item is due or pay- able, or that he owes the plaintiff as alleged; he shall state all the substantive grounds on which he intends to rest such denial, and shall specify whether some and what part or the whole of such item or demand is denied. Answers, etc., when and how made. P. S. 167, § 18. 2 Gray 521. 112 Mass. 405. JSect. 19. In all cases in which a denial is made by answer, affidavit, or otherwise, concern- ing a time, sum, quantity, or place alleged, the party denying shall declare whether such denial Pleadings. 75 is applicable to every time, sum, quantity, or place, or not ; and if not, what time, sum, quan- tity, or place he admits. Must declare whether whole or part is denied. P. S. 167, § 19. JSect. 20. The answer shall set forth in clear and precise terms each substantive fact intended to be relied upon in avoidance of the action ; and when the answer sets up the statute of limi- tations, the statute of frauds, or any other legal bar, the defendant shall not be deprived of the benefit of such defence by reason of his not denying the facts set forth in the declaration. To set forth each substantive fact. P. S. 167, § 20. 11 Gray 358. 2 Allen 18. 7 Allen 141. 12 Allen 419. 99 Mass. 194. 106 Mass. 51. lit Mass. 285. 112 Mass. 387. 113 Mass. 250, 531. 116 Mass. 547, 550. 117 Mass. 14. 119 Mass. 187. 120 Mass. 209. 123 Mass. 572. 124 Mass. 284. 125 Mass. 417, 562. 135 Mass. 100. 139 Mass. iii. *Sect. 21. Signatures to written instruments declared on or set forth as a cause of action, or as a ground of defence or set-off, shall be taken as admitted, unless the party sought to be charged thereby files in court, within the time allowed for an answer, a special denial of the genuineness thereof and a demand that they shall be proved at the trial. Signatures to be taken as admitted, unless denial of their genuineness is filed. 1877, 163. 14 Gray 109. 125 Mass. 446. 129 Mass. 59& i6 Of Pleadings and Practice. *Sect. 22. Written instruments, when relied on in an answer or subsequent allegation, shall be set out, or copies or the originals shall be filed, in the manner prescribed in the ninth clause of section two when they are declared on. Answer when written instruments are relied on, etc. P. S. 167, § 22. *Sect. 23. When a conditional obligation, contract, or grant is relied on in an answer or subsequent allegation, the condition shall be deemed a part of the instrument, and similar" averments shall be required in pleading on the same as are required by the tenth clause of section two. When conditional obligations, etc. P. S. 167, § 23. JSect. 24. No further pleading shall be re- quired after the answer, except by order of the court as hereinafter mentioned. But the plain- tiff may demur to the answer ; and if the answer contains any new matter in avoidance of the ac- tion, such new matter shall be deemed to be denied by the plaintiff ; or the court may on mo- tion of the defendant require the plaintiff to reply thereto, and to state whether he admits or denies any, and if any what part thereof. The plaintiff may without such order file, at any time Pleadings. ij before trial, a replication to the answer, clearly and specifically stating any facts in reply to the new matter therein. No pleading after answer, but by order of court. Plaintiff may demur, and in certain cases reply. P. S. 167, § 24, 7 Allen 239. 12 Allen 485. 133 Mass. 439. 136 Mass. 393. |;Sect. 25. The replication may raise an issue in law by the statement that the plaintiff demurs to the answer or to so much thereof as applies to one or more counts in the declaration, as the case may be, assigning specially the causes of such demurrer ; and in like manner either party may demur to the allegation of the other party. But no defect of form merely, either in the dec- laration or subsequent allegation, shall be as- signed as a cause of demurrer. The opposite party shall be deemed to join in demurrer if he does not amend, which he may do within such time and upon such terms as the court may allow. Further pleading, demurrer, etc. P. S. 167, § 25. 6 Allen 407. 124 Mass: 364. Joinder in demurrer. J Sect. 26. An answer or replication may allege facts which have occurred since the institution of the suit, and the plaintiff and de- fendant may be allowed by the court to make a supplemental declaration, answer, or replication. l8 Of Pleadings and Practice. alleging material facts which have occurred or come to the knowledge of the party since the former declaration, answer, or replication. Facts occurring since suit. Supplemental declaration, etc. P. S. 167, §26. II Gray 14. 106 Mass. 55. II Sect. 27. Either party may allege a fact or title alternatively, declaring his belief of one alternative or the other and his ignorance whether it is the one or the other. May be alleged alternatively. P. S. 167, § 27. J Sect. 28. The allegations and denials of each party shall be so construed by the court as to secure as far as possible substantial pre- cision and certainty, and to discourage vague- ness and loose generalities. A substantive fact alleged with substantial precision and cer- tainty, and not denied in clear and precise terms, shall be deemed to be admitted. No party shall be required to state evidence or to disclose the means by which he intends to prove his case. Pleadings so construed as to give certainty, etc. P. S. 167, § 28. 3 Gray 261. 4 Gray 65, 446. 15 Gray 87. 4 Allen, 380. 7 Allen 361. 100 Mass. 217. loi Mass. 417. 135 Mass. 191. Jf Sect. 29. A suit shall be deemed at issue when the allegations are closed, or, if it is a real or mixed action, when the plea is filed. Suit, when at issue. P. S. 167, § 29. Practice. ig PRACTICE. Indorsement of Process after Entry. *f Sect. 30. If a plaintiff in a writ, suit, or process at law or in equity, after its commence- ment, removes from the commonwealth, the court where the suit is pending, on motion of any other party, shall, and in all cases when it appears reasonable may, require the plaintiff to procure a sufficient indorser. Indorser, when required. P. S. 167, § 30. 21 Pick. 212. I Gray 114. 12 Gray 190. 99 Mass. 460. *tSECT. 31. If an indorser removes from the commonwealth or is insufficient, the court, if it appears reasonable, may require the plaintiff to procure a sufficient indorser. Removing, etc., anotlier required. • P. S. 167, § 31 fSECT. 32. The supreme judicial court may require an indorser or security for the payment of costs in a probate or insolvent case or pro- ceeding in that court. May be required in probate cases, etc. P. S. 167, § 32. *fSECT. 33. If a plaintiff fails to procure an indorser according to the order of the court, his 20 Of Pleadings and Practice. suit shall be dismissed and the defendant shall recover his costs. If not procured, suit dismissed. P. S. 167, § 33. •*tSECT. 34. The court in which a suit is pending may permit the name of an indorser to be stricken out and' a new and sufficient in- dorser to be substituted. Every indorser shall be liable for costs from the commencement of the suit, in like manner as indorsers before the entry of an action. Indorser may be substituted. . Liability. P. S. 167, § 34. 6 Mass. 494. See P. S. >_ 161, § 24. Abatement. *fSECT. 35. No writ, process, declaration, or other proceeding in the courts or course of jus- tice shall be abated, arrested, quashed, or re- versed for any circumstantial errors or mistakes, when the person and case be rightlj^ understood by the court, nor through defect or want of form only. No writ, etc., abated for circumstantial errors. P. S. 167, § 35. 2 Cusii. 491, 555. 10 Allen 537. *f Sect. 36. When the defendant in an action of contract answers in abatement the nonjoia- der of another person as defendant, the court Practice. 21 may, at any time before issue joined on such answer, allow the plaintiff on such terms as it shall prescribe to_ amend his declaration by in- serting therein the name of any other person^ as defendant, and declaring against him jointly with the original defendant. If defendant pleads nonjoinder, new defendants joined. • P. S. 167, § 36. 7 Gray 39. *tSECT. 3 7. The plaintiff may thereupon take out a new writ in such form as the court pre- scribes, which shall be in the nature of an original writ of capias 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 at- tached, as upon an original writ ; and the writ shall be returnable at such time as the court shall order, and be served fourteen days at least before the return day. Proceedings where new defendants are joined. P. S. 167, § 37. 6 Allen 350. *fSECT. 38. Upon the return of such new writ, every defendant named therein upon whom service has been made shall be bound to appear and answer with the other defendants, in the 22 Of Pleadings and Practice. same manner as if he had been originally made a party in the first writ. If service cannot be made on a defendant, the action may proceed ♦ against the other defendants, in the manner provided in chapter one hundred and sixty-four. Same subject. P. S. 167, § 38. *fSECT. 39. Judgment shall be rendered and execution shall issue for either party, in the same manner as if the original writ had been issued against all the "defendants ; and the plaintiff shall have the same benefit of an at- tachment or bail i^pon each of said writs as if the same had been made or taken in the usual manner upon the original writ. Judgment, execution, etc., in such case. P. S. 167, § 39. JfSECT. 40. If an issue of fact upon an answer in abatement is found against the de- fendant, a final judgment shall be rendered against him in the manner heretofore required by law in case of a. plea in abatement. Final judgment upon issue of fact. P. S. 167, § 40. 24 Pick. 51. 3 Met. 420. 126 Mass. 25. Amendments. llfSECT. 41. No action shall be defeated by plea or answer in abatement, if the defect found Practice. 2j is capable of amendment, and is amended on terms prescribed by the court. The defendant may have leave to amend an answer in abate- ment, or to answer over by special order of the court, for good cause shown, and not otherwise. Amendments. P. S. 167, §41. 14 Gray 564. 113 Mass. 34. 125 Mass. 472. 128 Mass. 600. 134 Mass. 308. 136 Mass. 335. *tSECT. 42. At any time before final judg- ment in a civil suit, amendments may be allowed, on such terms as are just and reasonable, intro- ducing a party necessary to be joined as plaintiff or defendant, discontinuing as to a joint plain- tiff or defendant, changing the form of the action, and in any other matter either of form or substance In any process, pleading, or pro- ceeding, which may enable the plaintiff to sus- tain the action for the cause for which it was intended to be brought, or the defendant to make a legal defence. Changing parties, form, etc. P. S. 167, §42. 4 Mass. 506. 2 Met. ; 10 Met. 525. 10 Cusli. 284. 12 Cush. 448. 8 Gray 45. 12 Gray 139, ^ 15 Gray 186. i Allen 501, 529. 7 Allen 489. 8 Allen 63. 107 Mass. ioSMass.355. ii2Mass.i8o. ii4Mass.48i. 121 Mass. 562. i22Mass.43S. 124 Mass. 240. 125 Mass. 72, 560. 126 Mass. 393. 134 Mass. 284. 134 Mass. 308. 135 Mass. 189. 136 Mass. 335. 139 Mass. 282. f Sect. 43 . Amendments may be so allowed by the supreme judicial court or the superior court. 2^ Of Pleadings and Practice. changing an action at law into a suit in equity, or a suit in equity into an action at law, if neces- sary to enable the plaintiff to sustain the action or suit for the cause for which it was intended to be brought. The supreme judicial court shall in all cases retain jurisdiction of suits so changed into actions at law ; and actions at law so changed into suits in equity, shall be forthwith removed by the plaintiff into -the supreme judicial court, if not there pending; and in such case said court may make any necessary orders as to further service, joinder of new parties, or the pleadings therein. Amendments changing suits at law into proceedings in equity, and vice versa. 1865,179. loi Mass. 378. 125 Mass. 138. St. 1883, c. 223, gives superior court limited equity jurisdiction. *f Sect. 44, After judgment in a civil action, defects or imperfections in matter of form found in the record or proceedings may be rectified and amended by the court in, which the judg- ment is rendered, or by the court to which it is removed by writ of error, if substantial justice requires it, and if the amendment is in affirm- ance of the judgment. After judgment. P. S. 167, § 44. 5 Cush. 78, 446. 104 Mass. 364. iii Mass. 160. Practice. 2^ Defaults. *tSECT. 45. If a - defendant . being duly served with process fails to appear, his default shall be recorded, the charge in the declaration shall be taken to be true, and judgment ren- dered accordingly. Defendant, when defaulted. P. S. 167, § 45. Sect. 46. If a defendant in an action of law in either of the courts respectively, being duly served with process, does not enter an appear- ance in writing within ten days from the return day of the writ, a default shall be entered against him ; but the court may in any case, for good cause, extend the time for entering an appear- ance. Appearance within ten days or default, unless, etc. St. 1885, c. 384, § 7. 7 Gray 38. 13 Gray 459. Sect. 47. The courts respectively in their discretion and upon such terms, if any, as they may think fit, may at any time before judgment strike out a default. St. 1885, c. 384, § 10. 26 Of Pleadings and Practice. ADVANCING CAUSES FOR SPEEDY TRIAL. Sect. 48. In any action where the plaintiff seeks merely to recover a debt or a liquidated demand, with or without interest, if the defend- ant appears, the plaintiff may, within twenty days after the expiration of the time allowed for filing the defendant's answer, file an affidavit verifying the cause of action and stating that in his belief there is no defence, and may enter an order for the defendant to show cause why judgment should not be given for the plaintiff ; and he shall immediately give to the defendant notice, in writing, of such order ; and unless the defendant within seven days after such notice, or within such further time as the court may for good cause allow, consents to a default and judgment for the sum demanded, or discloses, by affidavit or in such other manner as the court may order, such facts as constitute a de- fence, or such other facts as the court may think sufficient to entitle him to defend, the court shall advance such action for speedy trial ; but if upon a hearing under such order and notice the court finds that the action is not a proper case to be so advanced, it may in its discretion award the defendant reasonable costs. The Advaiicing Causes for Speedy Trial. 2"/ court shall require the defendant to disclose specifically and clearly the substantive facts on which he relies, and shall not allow general or vague allegations or denials. Actions to recover a debt or liquidated demand, how advanced for speedy trial. 1874, 248, § 3. 1875, 212, § 2. 136 Mass. 347. P. S. 167, § 48. Interrogatories. t*SECT. 49. The plaintiff may at any time after the entry of the action, and the defendant at any time after answer, or in a real or mixed action after plea, and before the case is opened to the jury, file in the clerk's office interroga- tories for the discovery of facts and documents material to the support or defence of the suit, to be answered on oath by the adverse party. In civil actions parties may file interrogatories, etc. P. S. 167, § 49. II Cush. 74. 7 Gray 417. 14 Gray 484. 15 Gray 545. 3 Allen no. 5 Allen 109. 13 Allen 320. 100 Mass. 320. 104 Mass. 27. 106 Mass. 338. 107 Mass. 113. Ill Mass. 154. 136 Mass. 291, 393. 139 Mass. 100. f*SECT. 50. To such interrogatories there shall be annexed an affidavit of the interrogating party or of his attorney to the effect that he has reason to believe that the party interrogating will derive some material benefit in the action from the discovery which he seeks, if the same 28 Of Pleadings and Practice. is fairly made, and that the discovery is not sought for the purpose of delay. Affidavit to be annexed to interrogatories. P. S. 167, § 50. 2 Gray 558. . 14 Gray 484. t*SECT. 51. Such interrogatories shall be answered, and the answers filed in the clerk's office within ten days after the same are notified to the party interrogated or his attorney, unless upon cause shown either before or after the lapse of ten days further time is allowed by the court. Answers to be filed. . P. S. 167, § 51. II Cush. 26, 158, 537. 3 Gray 215. t*SECT. 52. The answers shall be in writing, signed by the party and upon his oath. In writing, and on oath. P. S. 167, § 52. 125 Mass. 572. t*SECT. 53. If the party to a suit is a cor- poration, the opposite party may examine the president, treasurer, clerk, or any director or other officer thereof, in the same manner as if he were a party to the suit. Officers of corporation may be examined. P. S. 167, § 53. 100 Mass. 320. 109 Mass. 212. t*SECT. 54. Each interrogatory shall be answered separately and fully. The party inter- Advancing Causes for Speedy Trial. 2g rogated may introduce into his answer any matter relevant to the issue to which the interrogatory relates. Each interrogatory to be answered. P. S. 1-67, § 54. 3 Gray 220.' 8 Gray 529. 13 Allen 320. 109 Mass. 209. t*SECT. 55. When a document, book, voucher, or other writing, called for by an inter- rogatory, contains matters not pertinent to the subject of the action, the answer may so state, and that such part has been sealed up or other- wise protected from examination ; and there- upon such part shall not be inspected by the party interrogating ; but such party may apply to the court and obtain an order to have liberty to inspect the part so protected from examina- tion, or so much thereof as the court shall find on hearing- the parties, or if necessary by in- specting the part so protected, was improperly withheld and concealed. Parts of books, etc., called for, containing matter not pertinent, may be sealed up, etc. P. S. 167, § 55. 8 Gray 529. f*SECT. 56. The party interrogated shall not be obliged to answer a question or pro- duce a document the answering or producing of which would tend to criminate himself, or to disclose his title to any property the title where- JO Of Pleadings and Practice. of is not material to the trial of the action in the course of which he is interrogated ; or to dis- close the names of the witnesses by whom or the manner in which he proposes to prove his own case. Party not obliged to criminate himself, etc. P. S. 167, § 56. 2 Gray 558. 5 Allen 109. 104 Mass. 27. f*SECT. 57. If an answer contains irrelevant matter or is not full and clear, or if an inter- rogatory is not answered, and the party inter- rogated refuses to expunge or amend, or to answer a particular interrogatory,, the court or a justice thereof may on motion order such irrele- vant matter to be expunged, or such imperfect answer to be made full and clear, or such inter- rogatory to be answered, within such time as may seem reasonable. Irrelevant mattets to be expunged. Answers to be full, etc. P. S. 167, § 57. t*SECT. 58. When an answer is adjudged irrelevant or insufficient, .or when a party is ordered to answer an interrogatory, such order may be made respecting costs, either in the action or otherwise, as the court may direct by general rules or by a special order in each case. Costs when answer irrelevant, etc. P. S. 167, § 58. p. s. L. 167.] Interlocutory Orders, 31 f*SECT. 59. If a party neglects or refuses to expunge, amend, or answer according to the requisitions of this chapter, the court may enter a nonsuit or default as the case may require, and proceed thereon according to law. Nonsuit, etc., if party disobeys order. P. S. 167, § 59. 8 Gray 529. 14 Allen 9. 136 Mass. 291. f *Sect. 60. During the trial of any action the court may allow interrogatories to be filed, to be answered forthwith or with as little delay as practicable, and may suspend the trial for the purpose of having the same answered ; but such interrogatories must be accompanied by an affidavit stating the reasons why they were not filed earlier ; and unless the court upon the whole matter finds that due diligence has been used, the interrogatories shall not be filed. Court may allow interrogatories filed during trial. P. S. 167, § 60. 13 Allen 320. INTERLOCUTORY ORDERS. *Sect. 61. The court may in all cases order either party to file a statement of such particu- lars as may be necessary to give the other party and the court reasonable knowledge of the nature and grounds of the action or defence. Court may order statement of grounds of action, etc. P. S. 167, § 61. 3 Gray 266. 135 Mass. loi. 1 Allen 24S. 11 Allen 283. 32 Agreements of Parties. [p. s. u. 167. JfSECT. 62. Orders allowing amendments before trial, or a supplemental answer or repli- cation, or enlarging time, and any other interloc- utory order necessar}'^ to prepare the case for trial, may be made by the court while in session, or by a justice thereof, in any county, either in term time or vacation ; but the several courts shall prescribe such fixed rules respecting notice, the times and places for motions at cham- bers, and other matters, as they shall from time to time deem necessary. Orders, etc., preparatory to trial when made. P. S. iS;, § 62. Agreements of Parties. ^fSECT. 63, Any of the orders mentioned in the preceding section may be entered by consent in writing signed by the parties or their attorneys. All agreements of attorneys touch- ing a suit or proceeding shall be in writing; otherwise they shall be of no validity. Orders may be entered by consent, etc. P. S. 167, § 63. 8 Allen 45. 124 Mass. 240. Jf Sect. 64. If the parties agree to continue a case without cost until the next term it shall be continued accordingly; but the court may by a general or special order regulate the place on p. s. >.. 167.] Offer of Judgment. jj the docket in which the case shall stand at the next term. Parties may make agreements re- specting amendments and the time of filing papers, which agreements shall be equivalent to an order of the court to the same effect. Parties may agree respecting continuances, filing papers, etc P. S. 167, §64. Offer of yudgment. *Sect. 65. When a defendant in an action at law or suit in equity, wherein damages only are sought to be recovered, offers in court and consents in writing to be defaulted, and that judgment shall be rendered against him as- damages for a sum therein specified, the same shall be entered of record together with the time when it was made ; and the plaintiff may at any time within ten days after he has received notice of such offer and consent accept the offer, and the court shall render judgment accord- ingly, with costs to the date of the notice. If, after such notice, the court for good cause grants the plaintiff a further time to elect, he may signify his acceptance within the time allowed, and judgment shall be rendered as if the acceptance had been within ten days. Defendant may offer judgment. Plaintiff may accept, witli costs. Time to elect. P. S. 167, § 65. See § 76. 97 Mass. 148. 34 Hearing, Trial, Evidence, [p. s. c. 167. *Sect. 66. If the plaintiff does not elect to accept such offer, and does not recover a greater sum than the sum so offered, not including interest on the sum recovered in damages from the date of the offer, the defendant shall have judgment for his costs after said date, for which execution shall issue, and the plaintiff, if he re- covers damages, shall be allowed his costs only to the date of the offer. If plaintiff does not accept, etc., defendant allowed costs. P. S. 167, § 66. See § 76. 97 Mass. 148. 102 Mass. 122. Hearing, Trial, Evidence. fSECT. 67. Every demurrer may in the first instance be heard by a single justice, and, if taken in term time, during the same term if practicable ; and his decision as to the misjoinder of counts shall be final, an amendment being allowed as herein provided. But if the cause of demurrer is that the facts do not in point of law support or answer the action, and the party against whom the decision is made does not pray for leave to amend, such decision shall not be final, but the demurrer may be further heard upon appeal or otherwise, as is provided in respect to such questions of law. When a demurrer is sustained, overruled, or with- p. s. c. 167.] Hearing, Trial, Evidence. j>5 drawn, the court shall make such order as may be fit respecting the filing of an answer or replication, or a trial of the facts. Demurrers, how heard, determined, etc. P. S. 167, §67. 4 Gray 62. 7 Gray 427. 10 Gray 501. 2 Allen 130. 124 Mass. 227. fSECT. 68. If a demurrer appears to the judge who first hears the same to be frivolous, immaterial, dr intended for delay, he may, be- sides overruling it, order the party to plead, answer, or reply, notwithstanding such party claims the right to be further heard by appeal or otherwise on his demurrer ; and thereupon the case shall proceed to a final judgment as if no demurrer had been filed, and execution may be awarded or stayed on such terms as the court may deem reasonable, as in cases of exceptions adjudged frivolous. Demurrers frivolous or immaterial, may be overruled, etc. P. S. 167, § 68. 4 Gray 62. fSECT. 69. A separate list of cases to be tried by a jury shall be kept in the supreme judicial court and superior court, and no civil action shall be entered thereon, except in those cases for which a different provision is expressly made, unless some party, before the parties are at issue, or within such time thereafter as the 36 Hearing, Trial, Evidence, [p. s. 1. 167. court may by general or special order direct, files a notice that he desires a trial by jury. Other civil actions shall be heard and deter- mined by the court and judgment entered as in case of verdict by a jury. Separate list to be kept of jury cases, and no cases entered thereon unless notice is filed. 1874, 248, § \. 1875, 212, § i. 135 Mass. 28, 591. 142 Mass. 182. JSect. 70. Either party may file exceptions to the decisions and rulings of the court upon matters of law arising upon a trial by the court without a jury, may move for a new trial for mistake of law or for newly discovered evi- dence, and may be entitled to review, in the same manner and with the same effect as upon trial by jury. Exceptions. New trial. Review. P. S. 167, § 70. 10 Gray 400. I Allen 388. 106 Mass, 51. 115 Mass. 21,129. fSECT. 71. A trial shall not be delayed for want of a reply to the defendant's answer, un- less by special order of the court ; nor shall an agreement of parties respecting filing amend- ments or papers operate to postpone the trial of an action beyond the time at which by the rules of the court it would be tried. Trials not to be delayed or postponed, etc. P. S. 167, § 71. p. s. c. 167.] Hearing, Trial, Evidence. 27 *tSECT. 72. A trial shall not be delayed for the reason that interrogatories have been filed and the time allowed for answering the same has not elapsed, but the court may allow an ex- amination during the trial as is hereinbefore provided. Same subject. P. S. 167, § 72. fSECT. 'j^i- When it appears on a trial that a local action has been brought in an erroneous venue, the court may of its own motion order a nonsuit to be entered, unless good cause is shown why the trial should be allowed to pro- ceed. Local action in wrong county. P. S. 167, § 73. See P. S. t. 171, § 14. 102 Mass 370. 133 Mass. 466. JSect. 74. If the plaintiff fails to give evi- dence at the trial in support of a count in the declaration not wholly or partly confessed by the answer, such count ?hall forthwith be stricken out. And the court may, either of its own motion or upon motion of a party, require unnecessary counts and statements to be stricken out of a declaration or subsequent proceeding, and may impose reasonable terms. Counts not proved, etc., may be stricken out. P. S. 167, § 74. 3 Gray 261. 8 Gray 589. 3 Allen 471. 38 Hearing, Trial, Evidence, [p. s. c. 167. *tSECT. 75. Neither the declaration, answer, nor a subsequent allegation, shall be deemed evidence on the trial, but allegations only whereby the party making them is bound. Pleadings not evidence. P. S. 167, § 75. 108 Mass. 100. no Mass. 61. 124 Mass. 364. 126 Mass 21. 140 Mass. 250. *fSECT. 76. No offer or consent, made in pursuance of sections sixty-five and sixty-six, which is not accepted, shall be evidence against the party making the same, either in a subse- quent proceeding in the action or suit in which such offer is made, or in another action or suit. Offer of judgment not accepted, not evidence. P. S. 167, § 76. 135 Mass. 29. *tSECT. T]. The answer of each party to interrogatories filed may be, read by the other party as evidence at the trial ; the party inter- rogated may require that the whole of the an- swers upon any one subject matter inquired of shall be read, if a part of them is read ; but if no part is read, the party interrogated shall in no way avail himself of his examination, or of the fact that he has been examined. Answers to interrogatories may be read at trial, etc. P. S 167, § 77. 109 Mass. 209. *f Sect. 78. When a defendant answers two or more matters in his defence, no averment. p. s. 1. 167.] Hearing, Trial, Evidence. jp confession, or acknowledgment contained in one of them shall be used or 'taken as evidence against him on the trial of an issue joined on any other of them. One matter in answer not evidence of another. P. S. 167, § 78. 13 Met. 253. 135 Mass. 29. 7 Cush, 585. *Sect. 79. If the defendant in an action for slander or for publishing a libel justifies that the words spoken or published were true, such allegation, though not maintained by the evi- dence, shall not of itself be proof of the malice alleged in the declaration. Justification in slander not proof of malice. P. S. 167, § 79. 15 Mass. 48. I Pick. I. *Sect. 80. In every prosecution and in every civil action for writing or for publishing a libel, the defendant may upon the trial give in evidence the truth of the matter contained in the publication charged as libellous ; and such evidence shall be deemed a sufficient justifica- tion, unless malicious intention is proved. Truth of alleged libels may be given in evidence, etc. P. S. 167, § 80. 124 Mass. 338. 136 Mass. 447. II Sect. 8i. In an action upon a judgment obtained by default, and without the knowledge of the defendant, the court may in its discretion 40 Arrest of Judgment. [p. s. c. 167. and upon such terms as it deems reasonable, allow the defendant to show in defence any pay- ment, satisfaction, or extinguishment of the claim, prior to the obtaining of such judgment, or any matter of fraud, which in either case he might have shown upon a writ of review in the original suit ; provided, such action is brought within six years from the rendition of such judg- ment. In action on judgment by default, court may allow evidence of payment, etc. P. S. 167, § 81. 12 Allen 97. 100 Mass. 86. Arrest of Judgment. *tSECT. 82. A judgment shall not be ar- rested for a cause existing before the verdict, unless such cause affects the jurisdiction of the court. And when the defendant has appeared and answered to the merits of the action, no defect in the writ or other process by which he has been "brought before the court, or in the service thereof, shall be deemed to affect the jurisdiction of the court. No arrest of judgment for cause before verdict, except, etc. P. S. 167, § 82 I Gray 172. 7 Gray 543. 98 Mass. 334. 104 Mass. 373. iiS Mass. 569. General Provisions. *tSECT. 83. When a change happens in a suit after its commencement, the court may p. s. 0. 167.] General Provisions. ^i allow such suggestions to be entered on the record as circumstances may require. Suggestions entered on record. P. S. 167, § 83. *tSECT. 84. The provisions of this chapter shall not be deemed to change any rule of evi- dence, the measure of damages, the jurisdiction of a court, or the locality of an action, except so far as the same is herein specially provided for. Rules of evidence not changed, etc. P. S. 167, § 84. 4 Gray 333. 8 Gray 397. 5 Allen 579. 99 Mass. 621. *tSECT. 85. The cause of action shall be deemed to be the same for which the action was brought, when it is made to appear to the court that it is the cause of action relied on by the plaintiff when the action was commenced, how- ever the same may be misdescribed ; and the adjudication of the court allowing an amend- ment shall be conclusive evidence of the iden- tity of the cause of action. But no subsequent attaching creditor, or purchaser of property at- tached in the suit, or bail, or any person other than the parties to the record, shall be bound by such adjudication, unless he has had due notice of the application for leave to amend and opportunity to be heard thereon, according to 42 General Provisions. [p. s. c. 167. an order of notice to that effect to be issued by the court upon application of the plaintiff, and such third parties shall have the right to except or appeal. Cause of action, amendment, notice. to parties, appeal, etc. P. S. c. 167, § 85. 3 Allen 528. 5 Allen 322. 7 Allen 202. 7 Gray 540. 134 Mass. 308. 136 Mass. 337. 142 Mass. 128. *tSECT. 86. When a party to a suit or pro- ceeding under this chapter is a corporation, all precepts, answers, replications, or other papers requiring the signature or oath of the party, may be signed or sworn to in behalf of the cor- poration by some officer or agent thereunto specially authorized. Affidavit when corporation is a party. P. S. 167, § 86. *tSECT. 87. When it appears from the papers or pleadings in a suit at law or in equity that any party sues or is sued as executor, ad- ministrator, guardian, trustee, or assignee, or as a corporation, such fact shall be taken as ad- mitted, unless the party controverting the same files in court, within ten days from the time al- lowed for answer, a special demand for proof of such fact. The fact that a party is executor, etc., to be taken as admitted, unless, etc., 1881, c. 113. p. s.c. 16?.] General Provisions. 43 Sect. 88. None of the foregoing provisions except those contained in sections three, five, eight, nine, twelve, sixteen, twenty-nine, thirty, thirty-one, thirty-two, thirty-three, thirty-four, thirty-five, thirty-six, thirty-seven, thirty-eight, thirty-nine, forty, forty-one, forty-two, forty- three, forty-four, forty-five, forty-six, forty-seven, forty-nine, fifty, fifty-one, fifty-two, fifty-three, fifty-four, fifty-five, fifty-six, fifty-seven, fifty- eight, fifty-nine, sixty, sixty-two, sixty-three, sixty-four, sixty-seven, sixty- eight, sixty-nine, seventy, so much of seventy- one as relates to agreement of parties, sections seventy-two, sev- enty-three, seventy-five, seventy-six, seventy- seven, seventy-eight, eighty-two, eighty-three, eighty-four, eighty-five, eighty-six, eighty-seven, and ninety-four shall be deemed applicable to real or mixed actions, unless specially named. Provisions not applicable to real and mixed actions, except, etc P. S. 167, § 88. See §§ noted thus, \. 1881, 113. Sect. 89. Sections one, two, four, five, six, seven, eight, ten, twenty-one, twenty-two, twenty- three, thirty, thirty-one, thirty-three, thirty- four, thirty-five, thirty-six, thirty-seven, thirty-eight, thirty-nine, forty-two, forty-four, forty-five, forty-six, forty-nine, fifty, fifty-one, fifty-two, fifty-three, fifty-four, fifty-five, fifty-six, 44 General Provisions. \p- s. w. 167. fifty-seven, fifty-eight, fifty-nine, sixty, sixty-one, sixty-five, sixty-six, seventy-two, seventy-five, seventy-six, seventy-seven, seventy-eight, sev- enty-nine, eighty, eighty-two, eighty-three, eighty-four, eighty-five, eighty-six, eighty-seven, ninety-three, and ninety-four of this chapter shall apply to civil actions before police, district, and municipal courts and trial justices. Specified sections to apply to civil actions before police, district, and mu- nicipal courts and trial justices. P. S. 167, § 89. 1862, 20. 103 Mass. 450. 1881,113. See §§ noted thus, *. Sect. 90. Sections nine, eleven, twelve, twenty-seven, forty-one, and eighty-one of this chapter, in addition to those named in the pre- ceding section, shall apply to civil actions before the municipal courts of the city of Boston and the following district courts : the first, second, and third district courts of , Bristol ; the first district court of Essex; the first district court of northern Middlesex ; the first district court of eastern Middlesex ; the first district court of southern Middlesex ; the district court of eastern Norfolk ; the second, third, and fourth district courts of Plymouth ; and the central district court of Worcester. other specified sections to apply to civil actions before certain municipal and district courts. 1872, 199, § 17 ; 280, 5 16. 1874, 33, § 16 ; 36, § 10 ; 224, § 17; 271, § 11; 281, § 4; 293, § 13; 350, § 13; 392, § 13. See §§ noted thus, ||. P. S. 167, § 90. p. s. c. 167.] General Provisions. ^j; District and municipal courts may in all cases order the defendant to file an answer. Said courts may order defendant to file answer. Sect. 91. Sections thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty-four, twenty-five, twenty-six, twenty- eight, twenty-nine, forty, sixty-two, sixty-three, sixty-four, and seventy-four of this chapter, in addition to those named in the two preceding sections, shall apply to civil actions before the municipal court of the city of Boston : provided, that answers under this chapter shall be filed in said court only when required by its rules and orders. other specified sections to apply to civil actions before the municipal court of the city of Boston. 1867, 355, § 2. See §§ noted thus, t. Sect. 92. Except as provided in the three preceding sections the provisions of this chapter shall not apply to actions before police, district, or municipal courts or trial justices. Certain sections not to apply to actions before police, etc., courts and trial justices. P. S. 167, § 92. *Sect. 93. In actions before such police, district, or municipal courts or trial justices, the interrogatories and answers provided for in sec- tions forty-nine, fifty-one, and seventy-two, may 46 Schedule of Forms. [p. s. c. 167. be filed before said courts or trial justices r'^- spectively. They may be filed by either party, at any time after the commencement of the ac- tion, and the answers shall be filed within such time as such courts or trial justices shall respec- tively order. Interrogatories in actions before police courts, etc., may be filed, etc. P. S. 167, § 93. \Forms.'\ *tSECT. 94. The forms contained in the schedule annexed to this chapter may be used in the several courts, subject to be changed and modified from time to time by the supreme judicial court, by general rules made for the purpose. Forms autliorized. May be altered by S. J. C. P. S. 167, § 94. SCHEDULE OF FORMS. Forms of Declarations in Actions of Contract. Commencement. To answer to A. B. of , in an action of contract. Forms of Declarations. 10 Gray 329. If the plaintiff is a minor and sues by prochein ami, or if the plaintiff sues as administrator or in any special charac- ter, it may be stated according to the established form. As it Ls not necessary to insert the declaration in the writ, it p. s. I.. 167.] Schedule of Forms. ^y should be entitled, when filed separately, in the following form : — ^^- \ Middlesex^ Sup. Ct. P ^ r Plaintiff ''s Declaration. Count for money had and received. — And the plaintiff says the defendant owes him one hundred dollars for money received by the defendant to the plaintiff's use ; — 14 Allen 59. 99 Mass. 194. 103 Mass. 556. Money lent. — And the plaintiff says the defendant owes him one hundred dollars for money lent by the plaintiff to the defendant ; — 4 Pick. 444. 2 Met. 561. 16 Gray 273. 117 Mass. 582. Goods sold. — Also that the defendant owes him dollars for goods sold by the plaintiff to the defendant ; — 7 Gray 187, 190. 106 Mass. 430. 112 Mass. 265. Work. — Also that the defendant owes him dollars for work done by the plaintiff for the defendant ; — 4 Gray 292. 9 Allen 355. 112 Mass. 299. 123 Mass. 577. Work and materials. — Also that the defendant owes him dollars for work done and materials found by the plain- tiff for the defendant ; — 100 Mass. 92. Board. — Also that the defendant owes him dollars for board and lodging furnished by the plaintiff for the de- fendant ; — III Mass. 390. 4S Schedule of Forms. [p. s. u. 167. Freight. — For the carriage of certain goods by the plain- tiff for the defendant ; — Warehouse room. — For warehouse room furnished by the plaintiff for the storage of certain goods of the defend- ant; — Horse and carriage hire. — For the use of a certain horse and carriage hired of the plaintiff by the defendant ; — Use and occupation. — For the use and occupation of a certain tenement hired of the plaintiff by the defend- ant; — II Cush. 366. 9 Allen 357. 103 Mass. 379. 124 Mass. 123. Insimul computassent. — For the balance found due to the plaintiff by the parties on accounting together ; — 15 Gray 293. 116 Mass. 532. Account annexed. — And the plaintiff says the defend- ant owes him fifty dollars, according to the account hereto annexed. II Allen 123. Payee cf Note against Maker. And the plaintiff says the defendant made a promissory note payable to the plaintiff or order, a copy whereof is hereto annexed. And the defendant owes the plaintiff the amount of said note and interest thereon. 10 Allen 556. On Note payable to Bearer. And the plaintiff says the defendant made a promissory note, a copy of which is hereto annexed, payable to one G. H. or bearer. And the plaintiff is the bearer of said p. s. c. 167.] Schedule of Forms. 4g note, and the defendant owes him the amount of said note and interest thereon. (If payments are indorsed on the note, the declaration should be varied as follows : " A copy whereof, with the indorsements thereon, is hereto annexed, and the defendant owes the plaintiff the balance of said note and interest thereon." If payments have been made which are not indorsed on the note, the allegation should be varied accordingly.) By Indorsee against Indorser. And the plaintiff says that one C. D. made a promissory note, a copy of which with the indorsements thereon is hereto annexed, payable to said E. F., or order ; and said E. F. indorsed the same to the plaintiff; and payrnent of said note was duly demanded of said C. D., who neg- lected to pay the sarhe, and due notice of its non-payment was given to said E. F. ; and said E. F. owes the plaintiff the amount of said note and interest thereon. Forms of declarations. 99 Mass. 621. On a Bond with Condition to pay certain Debts of the Plain- tiff, and to provide for his Support. And the plaintiff says the defendant executed to him a bond, a copy whereof is hereto annexed : And the plaintiff says he owed to one O. P. the sum of one hundred dollars on a promissory note (describing it) which the defendant neglects to pay : Also that he owed to one R. S. one hundred dollars, according to the account hereto annexed, which the defend- ant neglects to pay : ^0 Schedule of Forms. [p- s. c. 167. Also that the defendant neglects to provide clothing for the plaintiff: And the plaintiff has requested the defendant to pay said debts, and provide for his support as mentioned in said bond — (to be inserted, if proof of the request is neces- sary.) By Grantee against Grantor in a common Deed of Warranty for Breaches of Covenant. And the plaintiff says the defendant delivered to him a deed, a copy whereof is hereunto annexed : And the defendant was not seised in fee of a part of the land described as follows, (describing it,) but the same was held adversely by one L. M. ; and the residue of said land was not free from incumbrances, but was subject to a mort- gage to one S. T., to secure the payment of six hundred dollars : And the defendant has not warranted and defended the premises against the rightful claims of all persons, but one W. S. had a right of dower therein, and has compelled the plaintiff to assign the same to her. On an Award. And the plaintiff says the parties by their agreement in writing, a copy whereof is hereto annexed, referred the matters therein mentioned to arbitrators ; and the arbitrators have made an award thereon in writing, a copy whereof is hereto annexed. (Aver performance of condition by plaintiff, when neces- sary to be proved, and the non-performance by defendant, which is relied on.) p. s. c. 167.] Schedule of Forms. 5/ (If it is for the mere payment of money aver as fol- lows : — ) And the defendant owes the plaintiff the amount of said award. Oil a Promise to pay the Debt of another. And the plaintiff says that one E. F. owed him the sum of for , and the plaintiff was about to sue the said E. F. to recover the same : And in consideration that the plaintiff would forbear to sue said E. F., the defendant made an agreement to pay the same to the plaintiff, a copy whereof is hereto annexed ; and the plaintiff did forbear to sue said E. F., and the defendant owes him said sum. On an Agreement to convey Land on a certain Day, Plain- tiff to pay One Hundred Dollars Cash, atid give a Note for Four Hzmdred Dollars, secured by a Mortgage of the Land. And the plaintiff says the defendant made an agreement with the plaintiff, in writing, a copy whereof is hereto an- nexed : And on the day of , the plaintiff tendered to the defendant one hundred dollars, and also a note for four hundred dollars, (describing it,) and a mortgage of said land, to secure the payment of said note, and demanded of the defendant a conveyance of said land, (following the terms of the agreement.) For Breach of Promise of Marriage. And the plaintiff says that she and the defendant mutu- ally promised to marry each other. And she has always been ready to marry the defendant, but the defendant refuses to perform his promise. 52 Schedule of Forms. [p. s. a 167. JVon-Delivery of Goads sold. And the plaintiff says he purchased of the defendant the following goods, viz. : for the sum of one hundred dollars, to be paid therefor on delivery thereof; and the de- fendant promised to deliver the same on the day of , at the defendant's store in : And on said day the plaintiff demanded said goods at said store, and tendered to the defendant said sum of one hundred dollars in payment of the same. And the defendant refused to deliver the same to the plaintiff. On Policies of Insurance. 1. On a ship for a total loss. And the plaintiff says the defendants made to him a policy of insurance, a copy of which is hereunto annexed, for the sum of ten thousand dollars, on the ship John, against the perils of the seas, and other perils therein mentioned, in a voyage from Boston to Cadiz, in Spain, and at and from Cadiz to her port of discharge in the United States ; and while proceeding on said voyage, the ship was wrecked and totally lost by the perils of the sea ; and the defendants had notice of said loss on the day of , and were bound to pay the amount of said loss to the plaintiff within sixty days after said notice ; and the defendants owe the plaintiff therefor said sum of ten thousand dollars. 119 Mass. 592. 2. For a partial loss and contribution to a general average. (State, as in the last count to the description of the voyage inclusive.) p. s. v.. 167.] Schedule of Forms. 5j And in said policy the defendants agreed that in case of any loss or misfortune to said ship, it should be lawful for the plaintiff and his' agents to labor for, and in the de- fence and recovery of, said ship, and that the defendants would contribute to the charges thereof in proportion as the sum assured by them should _be to the whole sum at risk : And while proceeding on said voyage said ship was by the perils of the seas dismasted, and otherwise damaged in her hull, rigging, and appurtenances, and it was necessary, for the preservation of said ship and her cargo, to throw over a part of her cargo, and the same was thrown over for that purpose, and the plaintiff was obliged to expend the sum of two thousand dollars for repairing said ship at Cadiz, and the sum of five hundred dollars as a contribution for the loss occasioned by throwing over a part of said cargo ; and the ship suffered much other damage that was not re- paired at Cadiz ; — and the defendants had notice of said loss and charges, on the day of — , and were bound by the terms of said policy to pay the same within, sixty days after such notice, and the defendants owe the plaintiff therefor the sum of dollars. For a total loss of cargo by fire : And the plaintiff says the defendants made to him a policy of insurance for the sum of ten thousand dollars, on the cargo of the brigantine William, against the perils of fire and other perils therein mentioned, at and from Boston, and in a voyage from thence to Hamburgh, or any other port or ports in the north of Europe ; and while said brig- antine was proceeding on said voyage, the cargo was totally destroyed by fire ; and the defendants had notice of said loss on the day of , and were bound by the 54 Schedule of Forms. [p. s. c 197. terms of said policy to pay the plaintiff the amount of said loss ; and the defendants owe the plaintiff therefor the sum of ten thousand dollars. Forms of Declarations in Actions of Tort. Beginning. — To answer A. B., of , in an action of tort. Trover. — And the plaintiff says the defendant has con- verted to his own use one horse, the property of the plain- tiff, (or the goods mentioned in the schedule hereto annexed) . (The ad damnum is a sufficient allegation of damage in all cases in which special damages are not claimed,) 4 Gray 333. lo Gray 361, 382. 11 Gray 353. 16 Gray 387. 6 Allen 410. 99 Mass. 545. Deceit. — And the plaintiff says the defendant sold to him ten bags of coffee, and to induce the plaintiff to buy the same the defendant falsely represented to him that said coffee was the property of the defendant ; and the plaintiff believing that said representation was true, was thereby in- duced to purchase and did purchase said coffee, and paid therefor to the defendant the sum of one hundred dollars ; and said coffee was not the property of the defendant, which the defendant then knew, but was the property of one A. S., who has taken the same from the plaintiff. I Allen 207. 3 Allen 261. 117 Mass. 195. And the plaintiff says the defendant sold him a horse, for which the plaintiff paid him one hundred dollars. And to induce the plaintiff to buy said horse the defendant falsely represented to the plaintiff that said horse was sound, so far as the defendant knew ; and the plaintiff, believing that said p. s. u. 167.] Schedule of Forms. 55 representation was true, was thereby induced to buy, and did buy, said horse ; and said horse was not sound, but had a certain disease called , which the defendant then knew. And the plaintiff says the defendant, to induce the plain- tiff to sell property on credit to one S. C, falsely represented to the plaintiff in writing, that said S. C. was a man pos- sessed of a large property and able to pay his debts (a copy of which writing is hereto annexed) . And thereupon the plaintiff, believing said representation to be true, was induced to sell, and did sell, to said S. C, the goods mentioned in the account hereto annexed, and gave the said S. C. credit for the price of said goods, being dollars for the term of six months from the day of . And said S. C. was not a man of property, nor able to pay his debts, but was insolvent, which the defendant then knew. And the plaintiff has not been paid for said goods, and is unable to obtain payment therefor of said S. C. Negligence of Railroad Corporations. — And the plaintiff says the defendants are a corporation owning a railroad be- tween A. and B. ; that plaintiff was a passenger on said rail- road, and, by reason of the insufficiency of an axle of the car in which he was riding, the plaintiff was hurt; that defendants did not use due care in reference to said axle, but plaintiffdid use due care. (This form may be varied to adapt it to many cases, simply by changing the allegation as to the cause of the accident. It is not intended to restrict a party to the state- ment of one cause, if there were several concurrent causes, and if the plaintiff is in doubt which of several different causes occasioned the accident, he may, under section twenty-seven, so declare.) Forms of declarations. 56 Schedule of Forms. [p. s. c. 167. Negligence of Town. — • And the plaintiff says there is in the town of a public highway leading from to , which said defendants are bound to keep in re- pair ; — that the same was negligently suffered by defend- ants to be out of repair, whereby the plaintiff, travelling thereon and using due care, was hurt, and that due notice of the time and place and cause of injury was given. 10 Allen 18. Obstructing Way. — And the plaintiff says he owned a tract of land, (describing it,) and there was a way leading to the same from, (here mention the other terminus,) which the plaintiff had a right to use as a foot-way and carriage- way; and the defendant erected a fence across said way and placed stones in the same, so that the plaintiff could not use the same. Immoderate Riding. — And the plaintiff says the defend- ant hired of him a horse to ride from Boston to Cambridge, and from thence back to Boston, in a proper manner ; and the defendant rode said horse so immoderately that he be- came sick and lame, and was greatly injured in value. Slander. — And the plaintiff says that the defendant pub- licly, falsely, and maliciously, accused the plaintiff of the crime of perjury, by words spoken of the plaintiff substantially as follows. (Here set forth the words — no innuendoes are necessary.) (If the natural import of the words is not intelligible with- out further explanation, or reference to facts understood but not mentioned, or parts of the conversation not stated, in either of those cases, after setting forth the words, the de- claration should contain a concise and clear statement of such things as are necessary to make the words relied on p. s. u,. 167.] Schedule of Forms. ^j intelligible to the court and jury in the same sense in which they were spoken. This rule is applicable to actions for written and printed, as well as oral, slander.) 5 Gray 23. 6 Gray 321, 495. 8 Gray 161. 9 Gray 254,. 10 Gray 250. 14 Gray 221. 3 Allen 69. 97 Mass. i. gS Mass. 225. loi Mass. 115. 102 Mass.' 139. 103 Mass. yj. 112 Mass. 237. 116 Mass. 4S2. 124 Mass. 338. 136 Mass. 468. Libel. — And the plaintiff says the defendant caused to be published in a newspaper (describing it) a false and malicious libel concerning the plaintiff, a copy whereof is hereto annexed. (Or if it is a picture, it may be described.) Trespass to Person. — And the plaintiff says the defend- ant made an assault upon him, and struck him on his head, and kept him imprisoned for the space of one day. Trespass to Land. — And the plaintiff says the defend- ant forcibly entered the plaintiff's close, (describing it,) and ploughed up the soil, etc., and took and carried away fifty bushels of the plaintiff's corn there being, and converted the same to his own use. 9 Gray 73. 103 Mass. 360. 115 Mass. 561. 116 Mass. 482. 125 Mass. 532. Penalty. — And the plaintiffs say they had an aqueduct, (describing it,) and the defendant maliciously injured said aqueduct by cutting off one of the pipes thereof, whereby the defendant became liable to pay the plaintiffs treble the amount of the damage thereby sustained by the plaintiffs ; and the amount of said damage was ten dollars. 2 Allen 320. And the plaintiffs say that the twentieth' day of October last was the day of their cattle show and exhibition ; and that by their officers they defined and fixed bounds of suf- ^8 Schedule of Forms. [p. s. u. 167. ficient extent for the erection of cattle-pens and yards, and for convenient passage-ways to and about the same, within which bounds no persons were permitted to enter and pass unless in conformity with the regulations of said ofificers : Of all which the defendant had notice ; and after said notice the defendant did enter and pass within said bounds, con- trary to said regulations, whereby he has forfeited to the plaintiffs a sum not exceeding five dollars. Answers in Abatement. ^■f- I Middlesex, Sup. Ct. P ■'^ I Defendant's Answer. Nonjoinder. — And the defendant comes and says that if he is indebted to the plaintiffs for the goods mentioned in their bill of particulars, he is indebted to them jointly with one G. H., who is still alive, and ought to be sued with him in the writ, and therefore he ought not to be held to answer to the plaintifiPs writ. Forms of answers. Misnomer. — And the defendant comes and says the plaintiff's name is John Stiles, and not James Stiles, and therefore he ought not to be held to answer to the plaintiff's writ. There is no prescribed form for demurrer, but the author gives the following : — Answer in Demurrer. ^■^f- I Suffolk, Sup. Ct. P -A f Defendant's Demurrer. And the defendant comes and for answer to the plaintiff's declaration demurs and says that the facts therein stated do p. s. u. 167.] Schedule of Forms. ^g not, in point of law, support the action, in this, that the note declared on was not payable at the date of the writ. E. F., Attorney for Defendant. I certify that I am of the opinion that there is such prob- able ground in law therefor as to make it a fit subject for judicial inquiry and trial, and that it is not intended merely for delay. E. F. Suffolk ss. Subscribed and sworn to before me, G. H., Justice of the Peace, 12 Allen 47. Answers in Actions of Contract. ^■f- \ Middlesex, Sup. Ct. P ^ r Defendants Answer. Money had and received. — And the defendant comes and upon his personal knowledge denies that he received the money mentioned in the plaintiff's bill of particulars, or any part thereof : (Or, if the case be so) admits that he received the money mentioned in the plaintiff's declaration, but denies that he received it to the plaintiff's use. Forms of answers. And the defendant comes and says, upon his personal knowledge, that he received the money mentioned in the plaintiff's bill of particulars, but upon his information and belief he denies that he received the same or any part thereof to the plaintiff's use. 6o Schedule of Forms. [p. s. 1. 167. And the defendant comes and upon his personal knowl- edge denies that he has received to the plaintiff's use the money mentioned in the plaintiff's bill of particulars, except the sum of fifty dollars. Statute of Limitations. — And the defendant comes and answers that the cause of action mentioned in the plaintiff's writ did not accrue within six years before the suing out of the plaintiff's writ. Payment. — And the defendant comes and answers that he has paid the plaintiff the sum of dollars, which was the full amount of the account stated in the plaintiff's bill of particulars. If there are several items, add — And he annexes hereto a bill of particulars of said payment. Account annexed. Goods sold and delivered. — And the defendant comes and answers as follows, viz. : as to the first ten items of the plaintiff's bill of particulars, upon his per- sonal knowledge- he denies that the plaintiff sold and de- livered the same to the defendant. As to the eleventh item, upon his personal knowledge he denies that the price was to be more than ten dollars. Work. — As to the twelfth item, he is ignorant personally, and by information and belief, whether the plaintiff per- formed the day's labor there charged or not, and also of the price thereof, if any, so that he can neither admit nor deny the plaintiff's allegation, but leaves the plaintiff to prove the same. Answers to a Promissory Note, Promissory Note. — And the defendant comes and answers as follows : — He denies that he made the promissory note mentioned in the plaintiff 's first count : p. s. L. 167.] Schedule of Forms. 61 Minority. — And as to the note mentioned in the 'plain- tiff's second count, he says that at the time of making the same he was a minor under the age of twenty-one years. Duress. — And as to the contract mentioned in the plain- tiff 's third count, he says that at the time of its execution he was kept in imprisonment by the plaintiff, and executed the contract through the force of that imprisonment. Part Payment. — And the defendant comes and says that he has paid the note mentioned in the plaintiff 's writ, except the sum of fifty dollars, and ^Tender.^ before the plaintiff sued out his writ he ten- dered to the plaintiff said sum of fifty dollars, and now brings the same into court for the plaintiff. Accord. — And the defendant comes and says he de- livered to the plaintiff one wagon, which the plaintiff received in full satisfaction of the note mentioned in the plaintiff 's writ. Res Judicata. — And the defendant comes and says that at the supreme judicial court, held, etc., the plaintiff re- covered judgment against the defendant for dollars and cents damages, and for costs ; and that said judgment was rendered upon the same cause of action mentioned in the plaintiff 's first count. Release. — And the defendant comes and says the plain- tiff executed to him a release, a copy whereof is hereto annexed, whereby he discharged the defendant from the cause of action mentioned in the second count. To a Policy of Insurance. Insurance. — And the defendants come and say that they deny, upon information and belief, that said loss was actually total, and they deny that any abandonment was made. 62 Schedule of Forms. [p. s. c. 167. And the defendants come and say they deny, upon infor- mation and behef, that said vessel was seaworthy for the voyage in said policy mentioned, at the inception of said voyage. And the defendants come, etc., (as above,) but deny, upon information and belief, that said vessel was lost while proceeding on the voyage in said policy described. Forms of Answers in Actions of Tort. Trover. — And the defendant comes and upon his per- sonal knowledge denies that the horse mentioned in the plaintiff's writ was the property of the plaintiff, and also denies that he converted the same to his own use. And the defendant comes and says that upon his per- sonal knowledge he is ignorant, but upon his information and belief he denies, that the horse mentioned in the plain- tiff's writ was the property of the plaintiff. And the defendant comes and upon his knowledge and belief admits that said horse is the general property of the plaintiff, but avers that the defendant has a special property therein by reason of his having attached the same as the plaintiff's property, by virtue of a writ, (here describe it,) which writ was delivered to the defendant, who then was a deputy sheriff in the said county of , for service, and the action is now pending : And so the defendant denies upon his personal knowledge that he has converted said horse to his own use. Forms of answers. Deceit. — And the defendant comes and upon his per- sonal knowledge denies that he made said representation knowing that the same was not true. p. s. c. 167.] Schedule of Forms. 6j And the defendant comes ^nd says he has not personal knowledge, but upon his information and belief -he denies that said horse was unsound, as stated in the plaintiff's declaration. And the defendant comes and upon his personal knowl- edge denies that he made the representation mentioned in the plaintiff's declaration. And he says said coffee was the defendant's property, and he had a right to sell the same. Obstructing Way. — And the defendant comes and says he has not personal knowledge, but, upon his information and belief he denies that the plaintiff has a right of way as set forth in his declaration. And upon his personal knowledge he denies that he ob- structed said way as set forth in said declaration. Slander. — AxiA the defendant comes and upon his per- sonal knowledge denies that he accused the plaintiff of the crime of perjury as set forth in the plaintiff's first count. 3 Allen 69. 6 Allen 406. 7 Allen 61. And as to the second count, he says the plaintiff did feloniously steal, take, and carry away, ten dollars, the property of one S. T., in the possession of said S. T. being found, and converted the same to his own use, and so the plaintiff was guilty of the crime of theft, and the defend- ant's accusation was true. Assault and Battery. — And the defendant comes and says the plaintiff first assaulted him, and he only defended himself. And the defendant comes and says the plaintiff was his apprentice, and deserted and ran away firom him, and he retook the plaintiff and forcibly brought him back, using no more force than was necessary. 64 Schedule of Forms. [p. s. c. 167. And as to the allegation that the defendant hurt and wounded the plaintiif, the defendant upon his personal knowledge denies the same. Trespass quare Clausum. — And the defendant comes and says that a part of the close mentioned in the plaintiff's writ was the soil and freehold of the defendant, the same being described as follows, etc. : Upon his own knowledge he denies that he broke or entered any part of said close, except the part above described. Replications. A. B. ■ vs. \ Middlesex, Sup. Ct. October 3, i{ C, s. )■ D. ) Limitations. — And the plaintiff replies as follows, viz. : He says that within six years before the suing out of his writ the defendant executed a writing, a copy whereof is hereto annexed, by which he acknowledged said debt, and agreed to pay the same. Replications. He further says the defendant has been absent from this commonwealth for the space of three years last past. Minority. — And the plaintiff replies he is ignorant of the fact, so that he can neither admit nor deny that the defend- ant was a minor, as stated in his answer, but leaves the defendant to prove the same. He further says the articles mentioned in his bill of par- ticulars were necessaries for the defendant, and suitable to his estate and degree. p. s. c. 167.] Schedule of Forms. 65 Plea of Nul Disseisin. Plea. — And the said D. comes and defends his right when, etc., and says that lie did not disseise the said de- mandants, as they by their writ and declaration above sup- pose ; and of this he puts himself upon the country. By his attorney, C. D. Story's PI. in civil actions, p. 386. Note. — This plea does not require a joinder of issue. Prov. Ins. for Savings. 128 Mass. 462. By Rule 52 of the Superior Court, Disclaimer, non- tenure or any other defence that cannot be shown under the general issue, must be specified on fiUng the plea. 66 Equity jurisdiction of [st. 1883. c. 223. [St. 1883. Chap. 223.] EQUITY JURISDICTION OF SUPERIOR COURT. An Act granting Jurisdiction in Equity to the Superior Court. Be it enacted, etc., as follows : Section i. The superior court shall have original and concurrent jurisdiction with the supreme judicial court in all matters in which relief or discovery in equity is sought, with all the powers and authorities incident to such jurisdiction, and may issue all general and special writs and processes required in pro- ceedings in equity to courts of inferior jurisdic- tion, corporations and persons when necessary to secure justice and equity. Sect. 2. All the sections of chapter one hundred and fifty-one of the Public Statutes except sections one, twelve, twenty-seven, twenty-eight, thirty, thirty-one and thirty-three shall apply, except as herein otherwise provided, to suits in equity in the superior court. In these St. 1883. c. 223.] Superior Court. dy sections so applied, and in this act, the phrase " full court" shall mean the supreme judicial court in banc. Sect. 3. Proceedings, processes, and prac- tice in such cases shall conform, as nearly as may be, to those of the supreme judicial court, and the general rules for the time being of the supreme judicial court for the regulation of practice in equity shall, except as herein other- wise provided, be rules of the superior court in the exercise of its equity jurisdiction, as far as those rules are applicable. Sect. 4. For hearings, and making, enter- ing and modifying orders and decrees in equity causes by a single justice, and issuing writs in such causes, the superior court shall be always open in each county, except on holidays estab- lished by law; and all such proceedings shall be deemed to be had in court, and not in cham- bers, whether the court at the time thereof is sitting or open for other purposes or not. Sect. 5. Such suits shall be entered upon the same docket as other cases in the superior court. All processes shall be made returnable at the term next after fourteen days from the ser- vice of the process, if required to be served four- St. 1884. t. 316. 68 Equity Jurisdiction of [st. 1883. c. 223. teen days before the return day, or at the term next after thirty days from such date, if required to be served thirty days before the return day, or at any rule day within three months after the date of the process. Sect. 6. After an appeal is taken from a decree in equity of the superior court, any jus- tice of the supreme judicial court, or the full court, may by order suspend, on terms or other- wise, the execution or operation of the decree appealed from, pending the appeal, and may modify or annul any order made for the protec- tion of the rights of the parties pending the appeal ; and any such order of a justice of the supreme judicial court may be modified or an- nulled by the full court upon motion. Sect. 7. In cases of appeal from a decree in equity of the superior court, the justice by whom the decree was made, shall, at the request of the appellant, report the facts found by him as far as material, provided that such request be made within four days after the appellant has been notified of the entry of the decree, other- wise the granting of such report shall be in the discretion of the justice. Sect. 8. If any defendant in a suit in equity in the superior court, or any person in his be- St. 18S3. c. 223.] Superior Court. 6g half, within thirty days after the day for appear- ance, makes affidavit of his belief that the matter involved in the suit equals four thousand dollars in value, and that his interest alone or jointly with any other defendant or defendants having an interest jointly or in common with him, equals four thousand dollars in value, and that he has a substantial defence, and of his intention to bring the cause to a hearing, and requests that the cause be transferred to the supreme judicial court, it shall be immediately transferred with the papers therein to that court, at the charge of the party removing the same, and the cause shall proceed as if originally instituted in that court. But before such removal the superior court may make such orders for the appointment of receivers, and of injunction or prohibition, or for continuing the same in force, as are needful for the protection of the rights of the parties until the suit is heard by the supreme judicial court ; subject, however, to be modified or an- nulled by the order of that court on motion after the suit has been transferred as aforesaid. Sect. 9. When it shall appear, upon motion to a single justice of the supreme judicial court, that any suit in equity pending in the superior court ought to be heard with a suit or cross-suit 70 Equity Jurisdiction of [st. 1883. c. 223. in equity pending in the supreme judicial court, the justice may order the first mentioned suit to be transferred to the supreme judicial court, and such suit shall thereupon be transferred accord- ingly at the charge of the party making such application, and the cause shall proceed as if originally instituted in that court. Sect. 10. In a suit in equity in the supreme judicial or superior court, the bill need not con- tain any address to the court, or the usual cohi- mencement, or any prayer for an answer, for gen- eral relief, or for process, and the answer need not contain any saving of exceptions to the bill, or any prayer to be dismissed, or for costs, and a demurrer or plea need not contain any protestation or concluding prayer, and the omis- sion thereof shall not affect the rights of the parties respectively. The bill, except when it is actually inserted in a writ, shall be entitled in the proper court, and with the full title of the cause containing the names and descriptions of all the parties. Bills, answers, petitions, and other pleadings may be signed by the party or his attorney, and shall not require any other signature. An answer to a bill shall not be sworn to or under seal, except in cases of bills filed for discovery only. The forms in the sched- St. 1883. c, 223.] Superior Court. 7/ ule hereto illustrate the application of the pro- visions of this section. Sect. ii. When a suit in equity is com- menced by filing a bill in either of said courts, the plaintiff may, at his election, take out a writ of summons and attachment, or a trustee process, instead of a writ of subpoena. Sect. 12. No justice of the supreme judicial court or of the superior court shall dissolve an injunction issued by the other court, or a justice thereof, or interpose in any proceeding in the equity jurisdiction of the other court, except as provided for in the sixth, seventh and ninth sections of this act. Sect. 13. Suits in equity in the said courts may be brought in any county where a transitory personal action between the same parties might be brought, as well as where such suits may be brought under the laws now in force. Sect. 14. In actions at law in the said courts, the defendant shall be entitled to allege as a de- fence any facts that would entitle him in equity to be absolutely and unconditionally relieved against the plaintift's claim or cause of action, or against a judgment obtained by the plaintiff in such action ; and the plaintiff shall be en- titled to avail himself, in answer to any defence ^2 Equity Jurisdiction. [st. 1883. ^. 223. alleged by the defendant, of any facts that would avoid such defence in equity, or would entitle the plaintiff to be absolutely and unconditionally re- lieved in equity against such defence. Sect. 15. If upon the hearing of an appeal or exceptions by the full court, whether in an action at law or suit in equity or other pro- ceeding, it appears that the appeal of exceptions are frivolous, immaterial, or intended for delay, the court may, either upon motion or without any motion therefor, award against the appellant or party taking exceptions double costs from the time when the appeal or exceptions were taken, and interest from the same time at the rate of twelve per cent, by the year on any sum which has been found due for debt or damages, or which he has been ordered to pay, or for which judgment has been recovered against him, or the court may award any part of such additional costs and interest. Sect. 16. The superior court may frame issues of fact to be tried by a jury in an equity cause, when requested by a party, and direct the same to be tried in the county where such cause is pending. Sect. 17. Whenever an amendment is al- lowed in the superior court under the provisions St. 1883. c. 223.] Schedule of Forms. jj of section forty-three of chapter one hundred and sixty-seven of the Public Statutes changing an action at law into a suit in equity or a suit in equity into an action at law, the superior court shall retain jurisdiction of said cause. And in all proceedings in the supreme judicial court or the superior court no action or suit shall be de- feated on the ground that there is an adequate remedy at law or that the relief sought can only be obtained by a suit in equity, but such pro- ceeding whether at law or in equity shall at any time before final judgment be amendable at the discretion of the court and may be amended upon such terms as the court may determine. Schedule of Forms. [i. Bill for Redemption^ In the Court. ss. BETWEEN A. B. of in the county of and C. D. of in the county of AND E. F. of in the county of Plaintiffs, Defendant, y^ Bill of Complaint. [st. 1883. c. 223. Bill of Complaint. 1. By a deed of mortgage dated the ist of May, 1872, and recorded with Deeds, book page , the plaintiffs conveyed to the defendant in fee-simple a certain piece of land, situate, etc. [description], subject to redemption upon the plaintiffs^ their heirs, executors, administrators, or assigns, paying to the defendant, his executors, administrators, or assigns, the sum of three thousand dollars in three years from the date of the said deed, with interest thereon at the rate of six per centum by the year, payable half-yearly. 2. Default was made in payment of the said principal sum, but the said interest was duly paid up to the ist of May, 1875. 3. On or about the isth of June, 1875, the defendant took possession of the premises comprised in the said mort- gage, and has ever since continued in possession and in receipt of the rents and profits of the said premises. 4. On or about the 19th of October, 1881, the plaintiffs requested the defendant to render an account of the amount due on the said mortgage, but the defendant refused to do so. 5. The plaintiffs offer to pay to the defendant what shall be found due on the mortgage. The plaintiffs pray 1. That an account may be taken of what is due to the defendant for principal and interest on the said mortgage ; 2. That an account may be taken of the rents and profits of the said premises which have been received by the defend- ant or by any other person by his order or for his use, or which might but for his wilful default have been so received,' St. 18S3. c. 223.] Answer, 75 and that what shall appear to be due to the plaintiffs in taking the account of rents and profits be deducted from what shall appear to be due to the defendant for principal and interest ; 3. That it may be decreed that, upon the plaintiff paying to the defendant the sum (if any) which shall so be found due upon the mortgage, the plaintiffs shall have possession of the premises comprised in the said mortgage, to hold the same discharged of the said mortgage. L. M., Solicitor for the Plaintiffs. \2. Answer^ In the Court. ss. A. B. and Another v. E. F. Answer. 1. This defendant admits the allegations contained in the ist, 3d and 4th paragraphs of the plaintiff's bill. 2. This defendant admits that the interest upon the said mortgage was duly paid up to the ist of November, 1873 ; but he denies that it was paid up to any later time. 3. Default was made in payment of the principal sum secured by the said mortgage and the interest thereon ; and on the 15th of June, 1875, after the said default, this defend- ant made an open, peaceable, and unopposed entry on and took possession of the premises comprised in the said mort- gage, for the purpose of foreclosing the right of redemption thereof; and a certificate of two competent witnesses to .prove the said entry was duly made and sworn and recorded 7<5 Demurrer. [st. 1883. c. 223. in the Registry of Deeds for the said County of , within thirty days from the said entry. 4. The possession so obtained by this defendant was continued peaceably for more than three years before the commencement of this suit. J.S., Solicitor for the Defendatvt, \^. Demurrer^ In the Court. ss. G. H. V. T. L. and Others. Demurrer \or Demurrer of T. L. and R. C, two of the Defendants.] The defendants \or These defendants] demur to the plaintiff 's bill and for causes of demurrer show 1 . That' the plaintiff has not stated such a case as entitles him to any relief in equity against these defendants or either of them ; 2. That, etc. J.S., Solicitor for the [or the said two"] Defendants, I certify that this demurrer is not intended for delay. J. S. St. 1885. L. 384.] Supreme and Superior Courts. 77 [St. 1885. Chap. 384.J RETURN DAYS IN SUPREME AND SUPERIOR COURTS. An Act relating to return days and to practice in the supreme judicial and superior courts. Be it enacted, etc., as follows : Section i . The first Monday of every month shall be a return day in every county for writs, processes, notices to appear and citations in all actions, suits and other civil proceedings in the supreme judicial and superior courts respec- tively, and such writs, processes, notices and citations may be made returnable at the option of the party issuing or taking out the same at any such return day within three months after the date thereof. The return days heretofore established shall not hereafter be return days for any of such writs, processes, notices or cita- tions, except those issued before the first day of September, eighteen hundred and eighty- five, which may be made returnable as if this j8 Return Days in Supreme [st. 1885. c. 384. act had not been passed. All writs, processes, notices and citations in the supreme judicial court for the counties of Dukes County and Nantucket shall be returnable in the county of Bristol. Nothing contained in this section shall affect any power of either court to make any writs, processes, notices or citations returnable at other times. Sect. 2. The courts respectively shall be always open in every county and there shall no longer be any terms thereof. Any business of the courts or of the justices thereof respectively may be transacted at any time ; but no such business shall be transacted on Sunday, except in respect of such applications as, in the opinion of the court or justice to whom the same may be made, shall be of pressing necessity. Sit- tings of the courts respectively shall be held as heretofore at the times and places appointed by the laws now in force for holding terms of the courts. Sect. 3. The courts and the justices thereof respectively may in any county transact any business of such courts, and direct any order, judgment or decree to be entered in an action, suit or proceeding pending in the same court in another county. St. 1885. L. 384.1 and Superior Courts. "jg Sect. 4. Whenever the terms of the courts respectively are referred to in any statute of this state for any purpose not otherwise herein provided for, such terms shall for the purposes ot such statute be considered as commencing on the day appointed by law for the commence- ment of the regular sittings of the court and as ending on the day preceding the next such sittings. Sect. 5. Appeals and actions removed from municipal, police and district courts and trial justices to the superior court, shall be entered at the return day next after the appeal is taken or the removal requested. And appeals from the decisions ot commissioners or of probate courts upon claims against estates of deceased persons represented insolvent, and from decis- ions of courts of insolvency upon claims against estates in insolvency, or upon the question of granting a discharge, and appeals under section fifteen of chapter one hundred and eighty-nine of the Public Statutes, shall be entered in the court appealed to at the return day, instead of at the term next after the periods of time speci- fied in the statutes prescribing when such ap- peals shall be entered respectively, and where a statement of claim is required it shall be filed at 8o Return Days in Supreme [st. 1885. ... 3S4. such return day, and the provisions of bonds and recognizances in any of the said cases shall be altered accordingly. In sections nine, ten and twelve of chapter eighty-five, and section twenty-seven of chapter one hundred and sixty- one of the Public Statutes the word " term " shall be taken to mean "return day": provided, that nothing contained in this act shall affect the time appointed in any of these cases for doing any act, where the appeal is claimed or taken or the removal requested, or the bond or default mentioned in any of the said sections is required or made before this act takes effect. Sect. 6. Section nine of chapter one hun- dred and sixty-seven of the Public Statutes is amended so as to read as follows : — If no dec- laration has been inserted in the writ or filed pursuant to the preceding section, the action may at any time, upon motion, be dismissed with costs, but the court may at any time before such dismissal, in its discretion, allow the plain- tiff to file his declaration upon such terms, if any, as it shall think fit. Sect. 7. If a defendant in an action at law in either of the courts respectively, being duly served with process, does not enter an appear- ance in writing within ten days from the return St. 1885. c. 384.] and Superior Courts. 81 day of the writ, a default shall be entered against him, but the court may in any case for good cause extend the time for entering an appearance. Sect. 8. Section seven of chapter one hun- dred and sixty-four of the Public Statutes is amended so as to read as follows : — If after such notice in either case, the defendant does not appear within ten days after the day speci- fied in such notice for his appearance, a default shall be entered, and judgment thereon may be rendered against him. Sect. 9. Section ten of chapter one hun- dred and eighty-three of the Public Statutes is amended so as to read as follows : — Every person summoned as trustee in the supreme judicial or superior court shall appear and file his answer within ten days after the return day of the writ, unless the court for good cause allows further time therefor. Sect. 10. The courts respectively, in their discretion, and upon such terms, if any, as they may think fit, may at any time before judgment strike out a default. Sect. ii. At any time after a default has been entered against the defendant in an action at law in either of the courts, the plaintiff may 82 Return Days in Supreme [st. 1885. c 384. after four days have judgment entered as of course by the clerk without any further order. Sect. 12. The courts respectively may make general rules authorizing or directing in such manner and subject to such provisions as they may think proper the entry of judgment by the clerk without any further order in all or any of the cases in which judgment may according to the present practice be entered under a general order or at the end of a term as of course. Sect. 13. Every judgment, order or decree of the courts respectively shall bear the date of the day of the month and the year when the same is entered, but the court may, in its dis- cretion, when justice requires it, enter the same as of a previous day. Sect. 14. The time within which an appli- cation or affidavit may be made for the removal of an action or petition by virtue of section eight of chapter one hundred and fifty-two, section ten of chapter one hundred and sixty- one, or section thirteen of chapter one hundred and seventy-eight, of the Public Statutes, shall be thirty days after the day for appearance, instead of the time specified therefor in the said sections respectively. Sect. 15. Sections forty-six and forty-seven St. 1885. 1,. 384.] and Superior Courts. 83 of chapter one hundred and sixty-seven of the Public Statutes are repealed. Sect. 16. Nothing contained in this act shall apply to any criminal business of the superior court nor be construed to affect clerks' fees or taxable costs in civil cases. Sect. 17. This act shall take effect on the first day of September, eighteen hundred and eighty-five. [^Approved June ig, 1885. 84 Answers. MODE OF PLEADING PRIOR TO THE PRACTICE ACT OF 1852. Answers. Section i. All pleadings in defence of civil actions at law are by the practice act of Massa- chusetts denominated answers, except written motions.' Sect. 2. In order to better understand the change in pleading made by the practice act enacted by St. 1852, c. 312, and subsequently adopted into the Gen. Sts. of i860, c. 129, and again adopted into the Pub. Sts., c. 167, of Massachusetts, in 1882, it will be necessary to refer briefly to the mode of pleading in defence prior to this act. Sect. 3. Prior to St. 1836, c. 273, which abolished special pleas, the system of special pleadings was in force. Its pleas were : — I. Pleas in bar, which consisted in pleading to the merits, • p. S. c 167, §§ II, 13, 14, et seq. Answers. 8$ 2. Pleas in demurrer, which excepted to de- fects in the declaration, pleas in bar, abatement, and replication. 3. Pleas in abatement excepted to defects in the process, which included the writ, officer's return, and the bond in replevin. Pleas in bar were of two kinds : — 1 . The plea of general issue. 2. The special plea in bar. The plea of general issue in assumpsit ran substantially thus : — " And the said defendant, by A. B. his attor- ney, says he did not undertake or promise in manner and form as the said plaintiff hath above alleged, and of this the defendant puts himself upon his countr)'." ' Sect. 4. Special pleas in bar, in assumpsit, ran substantially thus (for statute of limita- tions, for instance) : — " And the said defendant comes and defends when and where it behooveth him, and prays judgment if the plaintiff his action aforesaid thereof against him ought to have or maintain, because he says that the cause of said pkintifif's action, if any he ever had, did not accrue to the plamtiff at any time within six years next before • Steph. on Plead. 156. 24 Pick. 400, 86 Answers. the commencement of the action aforesaid ; and this he is ready to verify, wherefore he prays judgment, if the said plaintiff his action afore- said thereof against him ought to have or maintain." Sect. 5. Special pleas in bar set up such defence as the evidence of which could not be put in under the general issue only.' Sect. 6. It is in regard to pleas in bar, and the use and treatment of general demurrers, that the practice act of 1852 made the most material changes. Sect. 7. Under special pleading, the ques- tion or point in issue was not whether the cause of action ever existed, but whether it existed at the commencement of the action. So that if the cause of action was valid in its inception, but had been paid, satisfied, released, or discharged before suit, the general issue was the only plea necessary to be filed. And so, likewise, if the cause of action or contract declared on, had been obtained by fraud or given for an unlawful con- sideration, or for no consideration, the evidence of it could be introduced under the general issue.' ' Steph. pleading, pp. 163-170. 24 Pick. 400. ^ I Chit. Plead. 478. Story's Plead, in civil actions by Oliver, p. 31 Hulett vs. Stratton, 5 Cush. 539. Ham vs. Goodrich, 37 N.H. 191. Granger vs. Ilsley, 2 Gray 522. special Pleas Abolished. 87 Sect. 8. Though special pleas were in many cases admissible in addition to the general issue, yet there was a rule in special pleading that a special plea which amounted to the general issue only was bad on demurrer. But all evi- dence which tended to prove that the cause of action had, for any reason, been paid, released, discharged, or avoided since the date of the action, such as tender discharge in bankruptcy, accord and satisfaction and set-off were all required to be pleaded specially. Sect. 9. On the whole there were but few causes the defence to which required more than the plea of general issue, and frequent discus- sions arose in the trial of causes as to what evi- dence could and what could not be admitted under the plea of general issue if no special plea had been filed ; and if filed, that it amounted to the general issue and therefore was bad. special Pleas Abolished by St. 1836, c. 2^3. Sect. io. Whereupon the St. 1836, c. 273, abolished special pleas thus : — " In every civil action hereafter to be tried in the Supreme Judicial Court or Common Pleas, all matters of law or of fact in defence of such action may be given under the general issue, and 88 Mode of Pleading. no other plea in bar of such action shall be pleaded." This act authorized said two courts to make such rules and orders " as shall be necessary to prevent surprise, and to afiford opportunity' for preparation for trial." And they made the following Rule. " That no substantive matter of dis- charg'e or avoidance of the action shall be given in evidence unless the matter of such defence is specified under the general issue.' Sect, i i . It was subsequently decided that the words " discharge or avoidance," in the above rule, referred solely to a cause of action originally valid ; that there could be no discharge or avoidance of a contract originally void or ille- gal, and therefore any evidence tending to prove that the cause of action was void in its inception was admissable under the general issue alone without a specification.^ Mode of Pleading under St. 1836, c, 3^3. Sect. 12. The difference, therefore, in the mode of trying causes under the general issue in special pleading and under the same issue under St. 1836, c. 273, seems to be this, — that ^ 24 Pick. 400. Colby's Practice, 444. * Hulett -vs. Stratton, 5 Cusli. 539. Dixie vs. Abbott, 7 Gush. 610. Rob- inson Vi. Howard, 7 Cush. 61 j, note. Mode of Pleading. 8g in special pleading any evidence which tended to prove that the plaintiff had no cause of ac- tion at the making of his writ was admissible under the general issue. While under St. 1836, c. 273, evidence which tended to prove that no valid contract ever existed, or that the same was void or voidable in its inception, was admissible under the general issue alone. But if the cause of action was ever valid, then no evidence of discharge or avoidance of it was admissible unless the matter was specified under the general issue according to said court rule. Sect. 13. Though it is apparent that the St. 1836, c. 273, together with the said court rule, was intended to give the plaintiff better knowl- edge what the defence might be in a certain class of cases than under special pleading; yet in the larger class of cases which allowed the general issue only to be filed, the plaintiff was not informed how, or by which of the vari- ous modes the defendant intended to prove the cause of action invalid in its inception, as the general issue was a sufficient plea for such defence. Sect. 14. The Legislature of 1849 passed a resolve that three commissioners be appointed by the governor " to revise and reform the go Three Commissioners Appointed. proceedings in the Court of Justice, in this Commonwealth, except in criminal cases, and report the same to the Legislature subject to its adoption or modification." Three Commissioners Appointed by the Legislature of iS4g to Reform Proceedings in the Courts of Justice. Sect. 15. Gov. Boutwell appointed on this commission the late Hon. Benjamin R. Curtis of Boston, formerly associate justice of the Su- preme Court of the United States ; the late Hon. Nathaniel J. Lord of Salem ; the late Hon. Reuben A. Chapman of Springfield, afterwards associate justice and subsequently chief justice of the supreme judicial court of Massachu- setts. Said commissioners reported a bill to the Legislature in January, 185 1, which was passed to take effect on Sept. i, following. The fol- lowing year by St. 1852, c. 312, the Legislature passed the present practice act in a new draft, in which the draft of the act of 1851 under- went considerable changes in the arrangement of its subjects and minor details, though the division of actions, mode of declaring and an- swering are substantially the same, many of the sections of the original being adopted entire in the act of 1852. Affida/vit of Merits Abolished. gi Affidavit of Merits Abolished. Sect. i6. Considering the practice act as it was finally matured by St. 1852, c. 312, the fact that it has been the chart of the legal pro- fession in Massachusetts for more than thirty years, and of course in daily and constant use, with fewer amendments and additions since its enactment than any other act of its length and importance of our laws, is the best evidence of its maturity and perfection when it came from the hands of the learned commissioners. Sect. 17. The practice act originally pro- vided that the defendant's appearance to the plaintiff's action should contain his affidavit that he had a good defence to the plaintiff's action on its merits, and that he intended to bring the same to trial. This provision was so learnedly and forcibly attacked by the late Nicholas St. John Green, professor in the law department of the Boston University, in the case of Hunt vs. Lucas, 99 Mass. 405, that the next Legislature after the case was reported and printed repealed it, though the full court sustained the provision as being constitutional. This it may be said is the only material change that has been made in the practice act of 1852. ^2 Extracts from Com^nissioners' Report. Sect. i8. It may be remarkecJ here that at the time the practice act was reported to the legislature, in 1 851, by the chairman, Judge Cur- tis, it was then generally understood that it was mainly his production. In conversation by the writer with the late Hon. Ezra Wilkinson, then one of the associate justices of the superior court, a few days before his quite sudden ideath he said, "Judge Curtis had charge of the bill, and it was mainly his work." Extracts front the Commissioners' Report. Sect. 19. It may further be remarked that what Jeremiah Masoji was among the lawyers of the Massachusetts Bar in his day, such W3,s Benjamin R. Curtis in the generation that suc- ceeded him. Daniel Webster, Benjamin R. Curtis, Rufus Choate, Charles G. Loring, Sidney Bartlek, and Richard H. Dana, contemporary practitioners of the Suffolk Bar, then constituted a bright con- stellation of the first magnitude in the profes- sion. Sect. 20. A few extracts from the report of , the commissioners (which may be found entire in the second volume of the life and writings of Judge Curtis by his son, Benjamin R. Curtis, and Extracts froni Commissioners' Report, gj also to be found in Hall's Massachusetts Practice,, p. 135), drawn up by the chairman Mr. Curtis and presented to the Legislature of 1851, will show the scope and design of the practice act. Sect. 2 1 . The introduction to the report in- timates that the bill then submitted was not fully matured and complete which reads thus : — " The commissioners appointed ... do now in execu- tion of their commission, so far as they have been able to complete the same, respectfully submit the following report." In referring to special pleading which was in use in Massachusetts till St. 1836, c. 273, the report says : — " It certainly was not to be wondered at that special plead- ing which had been considered an integral part of the com- mon law and which had so many excellencies to recommend it should have been imported with that law and introduced into use here. But.it was found that it has great defects as a practical system. In perfectly skilled and cautious hands it worked admirably ; but, unfortunately, perfect knowledge of so complicated and subtle a system, and extreme vigilance in the use of it, are things not to be reckoned on in practice ; and accordingly this sharp and powerful machine inflicted many wounds on the ignorant and unwary.' This was seen to be wrong ; but instead of looking for defects in the system and amending them, if capable of amendment, and, if not, changing 'it for another, a course of legislation was begun which has ended in having no system at all." * Sketch of Judge Wilde in Monthly Law Reporter, vol. 14, p. 456. g4 Extracts from Commissioners'' Report. The report, after referring to the amendment by St. 1783, c. 38, sect. 8, and its effect, con- tinues: — "And finally by St. 1836, c. 273, all special pleas in bar were abolished ; the general issue, general demurrer, pleas in abatement, motions in arrest of judgment, writs of error, and declarations according to the old system being still retamed. So that he who now surveys what now remains, sees every plaintiff left to inhabit the old building, while all others are turned out of doors. We seem to be walking for a short distance in the ancient but strongly built streets of an old town and all at once to step out into the open fields, having here and there a piece of sunken fence, and a half filled up ditch, and some ruins of broken walls which afford excellent lurking places for concealment and surprise, but no open highway for the honest traveller. . . . Neither party has any legal means of knowing what questions of fact or law are to be tried ; each must therefore conjecture, as well as he can, all reasonable possibilities and prepare for them. The system of special pleading known to the common law seems to us not to have worked well in practice. Of this there is the evidence afforded by the direct testimony of those best qualified to judge, and by the printed reports of the courts by which the system has been administered. No more dis- interested and competent witness than Lord Coke can be found. Speaking in the reign of James I. he says : ' When I consider tlie course of our books of years and terms, from the beginning of the reign of Edward III., I observe that more jangling and questions grow upon the matter of plead- ing and exceptions to form, than upon the matter itself, and infinite causes lost or delayed for want of good pleading.' " ^ » Coke on Littleton, -503 A. Extracts from Co7nmissioners' Report, g^ Sect. 22. "An examination of the various statutes for the amendment of this branch of law, and the decisions of the courts since his day, will convince any one that these dis- cordant sounds have not ceased. . . . Having for these reasons concluded that the English system of special plead- ing is not to be adopted, the inquiry recurs, what is to be done ? Shall we rest with what we have, or borrow a plan from the system of foreign law, or attempt to create a new one? We can advise neither. There seems to us to be decisive objections to each. To rest as we are is to continue to impose upon the people of the Commonwealth a burden of delay, vexation, and expense which in our judgment necessarily grows out of the present state of things. To bor- row a plan from a system of foreign law would be extremely hazardous and inconvenient. There is an intimate connec- tion between a system of law and its jnode of proceedure, and we should fear to try the experiment of raising such a foreign plant in our soil." Sect. 23. "Still less should we be willing to create a new plan. We have no such confidence in our own powers as would permit us' to engage in such a work ; indeed we have little respect for such a work in whosoever hands it may be. From the days when Mr. Locke created a con- stitution, down to the production of the last code which came out of the closet of any professor, we believe one im- portant lesson has been taught, — that all law should be de- rived, not created ; deduced by experience and careful observation from the existing usages, habits, and wants of men, and not spun out of the brains even of the most learned." Sect. 24. " Our earnest endeavor, therefore, has been to take what we now have, — with which all practitioners, and p6 Extracts from Commissioners Report. to a certain extent the people themselves, are acquainted, and to which their habits are adapted, — and amend and build upon it, not in a foreign style of architecture or with wholly new materials, but as far as possible with old materials, and after the old fashions, calling things by their old names when- ever they can be applied." Sect. 25. " To this plan the commissioners proposed to have added such provisions as will enable each party to re- sort to the knowledge of the other party and obtain a dis- covery of facts and documents pertinent to the suit. This may now be done by a separate suit in equity, called a bill of discovery ; but it is expensive, dilatory, hampered by many technical rules ; and from these and other causes is in our practice as nearly useless as any remedy can well be." Sect. 26. From the commissioners' report, or even from the above extracts, it is evident that the commissioners did not create a new code of practice to be construed solely by its own provisions, but largely to revise and amend the existing rules and modes of practice, borrow- ing much from the rules of special pleading, though in a modified form. And hence it will be inferred that the present practice act has its foundation laid in special pleading, as all good systems of pleading must be, but greatly modi- fied and shorn of the latter's stereotyped forms, a slight deviation from which often proves fatal. Consequently on examination of the reported Objects Gained by the Act. gj cases that have been argued before the full court on the practice act for thirty years past, it will readily be seen that many of the decisions have been made on the authority of the rules of special pleading. I. Objects Gained, Sect. 27. Among the objects gained by the practice act over the former mode of practice since St. 1836, c. 273, which abolished special pleas, are the following : — 1. A reduction of personal actions to three, — contract, tort, and replevin. 2. Answers to the merits must set forth the ground of defence relied on to avoid the cause of action, void or voidable at its inception.' 3. Restoring special demurrers. 4. Interrogatories to parties. 5. Allowing parties at the discretion of the judge to go to trial on the merits, after a trial has been had on an issue of fact in abatement, and the plea has been overruled.'' ' Mulry vs. Mohawk Valley Ins. Co., 5 Gray 541, 544. Haskins vs. Hamil- ton Mutual Ins. Co., 5 Gray 438. ^ P. S. c. 167, §§ 40, 41. Fisher vs. Fraprie, 125 Mass. 472. O'Loughlin vs. Bird, 128 Mass. 600. g8 Statute Rules for Answers. - Statute Rules for Answers. Sect. 28. Pub. Sts., c. 167, § 17, "The answer shall deny in clear and precise terms every sub- stantive fact intended to be denied in each count of the declaration separately, or shall declare the defendant's ignorance of the fact, so that he can neither admit nor deny, but leaves the plaintiff to prove the same." " Sect. 20. The answer shall set forth in clear and precise terms each substantive fact intended to be rehed upon in avoidance of the action; and when the answer sets up the statute of limitation, the statute of frauds, or any other legal bar, the defendant shall not be deprived of the benefit of such defence by reason of his not denying the facts set forth in the declaration." " Sect. 28. The allegations and denials of each party shall be so construed by the court as to secure, as far as possible, substantial precision and certainty, and to discourage vagueness and loose generalities. A substantive fact alleged with substantial precision and certainty, and not denied in clear and precise terms, shall be deemed to be admitted. No party shall be required to state evidence or to disclose the means by which he intends to prove his case." Forms Appended to Practice Act. gg The Terms " Facisj" " Matters" and " Grounds " of Defence Defined. Sect. 29. As in pleas in bar at common law or special pleading, so in a certain degree in answers to the merits under the practice act, facts are to be concisely stated, and not arguments or inferences of law. In which re- spect pleadings at law appear to differ mate- rially from those in equity.^ Sect. 30. The terms " facts," " matters," and "grounds" of defence are synonymous as they are used in pleading. They mean the same in the practice act as in pleadings at common law : they are not intended to include evidence nor mode of proof in detail.'' Forms Appended to the Practice Act. Sect. 31. Instances of the statement of facts in ansvyers to the merits are given in the forms appended to the practice act, P. S. c. 167, and are substantially thus : — Minority. — And now comes the defendant and for answer says that at the time of making the note he was a minor under the age of twen- ty-one years. ' I Chity Plead, p. 204 (c. 3). Montague -vs. Boston and Fairhaven Iron Works, 97 Mass. 502. ^ P. S. 1,. 167, § 28. Goodsell vs. Trumbull, 135 Mass. 100. TOO General Denial. Duress. — ... That at the time, etc., the de- fendant was kept in imprisonment by the plain- tiff, and executed the contract through the force of that imprisonment. Part Payment and Tender. — ... says he has paid the note mentioned in plaintiff's writ, except fifty dollars which he tendered to the plaintiff before he sued out his writ, and now brings the same into court for the plaintiff. Assault. — And the defendant comes and says the plaintiff first assaulted him and he only defended himself. Accord and Satisfaction. — . . . says he de- livered to the plaintiff one wagon which the plaintiff received in full satisfaction of the said note. In the above examples what are termed the logical and legal forms in special pleading are disregarded as well as time and place." General Denial. Sect. 32. Usual form of such anwser : — And now comes the defendant and for answer denies each and every allegation (or all the al- legations) in the plaintiff's writ and declaration. Sect. 33. With two exceptions, stated in the ' Knapp vs Slocum, 9 Gray 73. General Denial. loi two following sections, a general denial is proper when the defendant intends to contest all the plaintiff's material allegations only. It is concise, and there is no mistaking the issues to be tried. Sect. 34. It puts the plaintiff to the proof of his case and is approved by the full court in numerous reported cases.' General Denial. Exceptions. Sect. 35. Exc. i. "Signatures to written instruments declared on or set forth as a cause of action, or as a ground of defence or set-off, require a special denial of the genuineness thereof and a demand that they shall be proved at trial, otherwise the signatures will be ad- mitted." ^ This however does not apply to an attesting witness.' Sect. 36. Exc. 2. So if a party sues as ex- ecutor, administrator, guardian, trustee, assignee, or corporation, a special demand for the proof ^ Warren vs. Ferdinand, 9 Allen 357- Davis vs. Travis, 98 Mass. 222. H awes 1/ J. Ryder, 100 Mass. 216. Caverly iyj Owen, 123 Mass/574. Am- sinck vs. Am. Ins. Co., 129 Mass., 185. Stearns vs. Washburn, 7 Gray 187. Adams vs. Barry, 8 Gray 361. 2 P. S. c. 167, § 21. 3 Holden t'j. Jenkins, 125 Mass. 446. Spoonert/y. Gilmore, 136 Mass. 248. HaskinsOT. D'Este, 133 Mass. 356. Cape Ann Nat. Bk. w. Burns, 129 Mass. 596. True vs. Dillon, 138 Mass. 247. J02 General Denial. of such capacity or fact must be filed in court within ten days from the time allowed for answer.' Sect. 37. A general denial is a good answer where the defence is that some other party is liable instead of the defendant ; " or a different contract than that declared on ; ^ or in tort for trespass to land, that the land belongs to some other than the plaintiff ; * or in replevin or tort that the property belonged to another ; ^ or when defendant holds under a lease under seal when sued for use and occupation ; * or an altered note ; ' or that the money has been applied as per agreement when sued for money had and re- ceived ; ^ or a deviation from the voyage from which the vessel is insured ; ' or where a mate- rial allegation is omitted in the declaration ; '° or where the maker or indorser of a note is sued by ■ p. S. c. 167, § 87. " Hogan vs. Coleman, 119 Mass. 96. Boston Duck Co. vs. Dewey, 6 Gray 446. 3 Rodman vs, Guilford, 112 Mass. 405. ^ KnappT'j. Slocum, 9 Gray 75. s Very vs. Small, i5 Gray 121. Foye vs. Patch, 132 Mass. 108. ' Warren vs. Ferdinand, 9 Allen 357. Burnham vs. Roberts, 103 Mass. 379- ' Lincoln vs. Lincoln, 12 Gray 45. Cape Ann Nat. Bk. vs. Burns, 129 Mass. 596. " Marvin vs. Mandell, 125 Mass. 563. Howard vs. Hayward, 4 Allen 354. 9 Anisinck vs. Am. Ins. Co., 129 Mass. 185. '° Tarbell vs. Gray, 4 Gray 444. Brown vs. Wakefield, i Gray 450. General Denial. 103 an indorsee or holder, evidence is admissible to prove that it was neither made, indorsed, nor negotiated for value before maturity ; ' or where the maker of a note, not negotiable, though made payable to the order of the payee, and by him indorsed for value, is sued by an indorsee in his own name;" or in a suit for services, neg- ligence and want of skill.^ Sect. 38. In the last named case but one, the non- negotiability of the note declared on was apparent from the declaration, and for that reason might have been demurred to. Sect. 39. In the foregoing cases referred to under general denial, it will be seen that such answer allowed the defendant, to put in evi- dence, to meet and rebut the plaintiff's case. In the last three cases, the plaintiff alleged that the notes were indorsed, as much as to say that because they were notes and indorsed, that therefore the holder could sue in his own name ; but they did not come within the definition of mercantile notes, which when given or indorsed for value and payable on time, and amount cer- tain, entitle the indorsee to sue in his own name. T Davis 7 J. Travis, 98 Mass. 22;?, ■■ Stultz vs. Silver, iig Mass. 137. Hubbard w. Moseley, 11 Gray 170. Wayz'7. Smith, rii Mass. 525. 3 Caveily vs. Owen, 123 Mass. 577. 104 General Denial. Sect. 40. It is a rule in special pleading that if a plea amounts to the general issue it should be so pleaded.' It is otherwise under the prac- tice act, provided every substantive fact intended to be denied, be denied in clear and precise terms.'' Whatever else is added when defend- ant is only to rebut the plaintiff's case, will be rejected as surplussage, or the answer may be characterized as being inartificially drawn. ^ Sect. 41. When the fact to be pleaded is not that the cause of action was void in its in- ception, as for want of consideration or for illegal consideration, and no fact to be plead in avoidance of the cause of action, the practice of the best pleaders under the practice act is to answer by a general denial or by admission of part and denial of the rest as the case may be. There is no mistaking the issues on such an answer. Of course it is important to know before drawing an answer what the plaintiff is bound to prove under his declaration. To as- certain this, resort must be had to text-books such as 2 Greenleaf on Evidence and Saunders ' Steph. PI. p. 418. I Chit. Ph p. 527. = P. S. L. .67, § 17. 3 Ford Z'j. Buichard, 130 Mass. 427, Montague t/j. Boston and Fairhaven Iron Works, 97 Mass. 502. Very vs. Small, 16 Gray 122. Willard lis. Wil- liams, 7 Gray 185. special Answers. io§ on Plead, and Ev. and others of the kind. If a substantial allegation has been omitted in the declaration, it can be taken advantage of at trial under an answer of general denial, as upon de- murrer, and verdict must be for defendant unless plaintiff amends.' But if evidence is given, without objection, to sustain the defect, it is cured by the verdict. 2. Special Answers to the Merits. Sect. 42. When a general denial is insuf- ficient. Rule. — " Any ground of defence not com- prehended in the denial of the averments in the declaration must be pleaded in the answer;"^ or Sect. 43. "When a defendant intends to rest his defence upon any fact which is not in- cluded in the allegations necessary to the sup- port of the plaintiff's case, he must set it out in clear and precise terms in his answer ; and as the plaintiff is not bound to aver any thing which tends to defeat his action or which shows his claim is illegal or void in its inception or other- wise, all such matters must be set out and averred in the answer.^ ' Oliver vs. Colonial Gold Co., ii Allen 285. ° Per Bigelow C. J. in Goss »j. Austin, 1 1 Allen 527, Kissell vs. Page, II Gray 394. Geddes vs. Adams, 11 Gray 386. 3 Per Bigelow C. J. in Mulrey vs. Mohawk Valley Ins. Co., 5 Gray 543. io6 Examples. Examples of Defective Special Answers. Sect. 44. Under Sect. 20 of the practice act the fact in avoidance of the cause of action must be stated in clear, precise, and positive terms and not inferentially or contingently as "if plaintiff shall offer evidence tending to prove the items of his account, the defendant will offer evidence tending to prove that the items were for liquors unlawfully sold," ' etc., or, " if plaintiff shall prove that he performed the ser- vices set out in his declaration, or any part thereof, then the defendant will show that they were unskilfully and negligently performed." ° Such answers set up no defence as required by the above section, because they neither pos- itively deny the plaintiff's allegation, admit or plead ignorance of the facts stated. Nor is it any defence to simply deny that defendant owes the plaintiff on the cause of action set out in the declaration, because it is the denial of a conclu- sion of law and not of a material fact set forth in the declaration.' Nor is it any defence to deny that plaintiff is ' Cassidy vs. Farrell, 109 Mass. 397. Suit vs. Woodhall, 116 Mass. 547. ' ^ Caverly »j. McOwen, 123 Mass. 577. Jackman w. Doland, 116 Mass. 550. 3 Van Buren vs. Swan, 4 Allen 381. Bruce vs. Mathews, loi Mass. 65. Grounds of Defence. loj the holder of a mercantile note, payable on time to the order of the payee, and by him in- dorsed." So a declaration is demurrable that simply declares the defendant owes the plaintiff a balance stating a certain sum. Such also is a conclusion of law based on a cause of action, such as an account annexed, note, etc., which should be set forth ; and plaintiff cannot recover, if objected to, even without a demurrer, unless the declaration be insimul computassent for the balance found due to the plaintiff by the parties on accounting together. Matters in Defence must be Stated Positively, not by way of Inference. Sect. 45. " All pleas must be alleged di- rectly and not by way of rehearsal ; nor is it sufficient that what ought to be expressly pleaded may be deduced by argument from what is pleaded."^ The Grounds of the Defence and not the Evidence should be Stated. Sect. 46. In the case for slander in Brickett vs. Davis, 21 Pick. 404, tried under St. 186, c. ' Hawes vs. Ryder, loo Mass. 216. ^ Co. Lit. 303. Montague vs. Boston and Fairhaven Iron Works, 97 Mass. 502. Goodsell vs. Trumbull, 135 Mass. 99. io8 Grounds of Defence. 273, the defendant filed the general Issue, and previous to trial offered on motion a specifica- tion under rule of court, containing a statement in detail of evidence which tended to prove a justification on the ground that the words spoken by him were true ; but it did not allege affirmatively that the same were true. The mo- tion was denied on the ground that evidence of such justification was not admissible under the specification. Dewey, J., in giving the opinion says: "A notice of special matter to be given in evidence under the general issue, must con- tain as distinct an allegation of the grounds of the defence as would be stated in a special plea, although it need not have the technicality of a special plea." The practice act was not In- tended to allow a more lax mode of pleading, as the cases already adjudicated under it clearly show. The pleader must distinguish between evidence and the technical grounds of defence. If evidence alone Is set out in the answer, or If the answer state what the defendant proposes to prove in his defence. It Is not sufficient, though its proof would constitute a good defence If found to be a fact by the jury.' ' Jackmani'j. Doland, 116 Mass. 550. Hodgkins vs. Moulton, 100 Mass. 309. P. S. t. 167, § 28. Grounds of Defence. log Admissions Technical _ Grounds Named. Sect. 47. It is manifestly an advantage to the defendant to admit such allegations as he has reason to know can be readily proved, un- less he is dependent on the plaintiff or his wit- nesses to prove, or aid in proving, his defence. If he can prove his defence independently of the plaintiff, it is advisable in most cases to do so. Sect. 48. Among the grounds of defence in actions of contract are infancy, lunacy, cover- ture, — unless made in relation to her separate property, — duress, want of consideration, illegal consideration, contract obtained by fraud, stat- ute of frauds, statute of limitations, non-per- formance by plaintiff of a condition precedent, release, discharge in bankruptcy or insolvency, payment, accord and satisfaction, foreign attach- ment, tender, account stated and a negotiable security taken by a plaintiff, former recovery, and set off.' What Grounds of Defence must be set Forth in the Answer. Sect. 49. The following grounds of defence must be set forth in the answer if relied on : Statute of frauds.'' That the goods sued for ' Goodsell vs. Trumbull, 135 Mass. 99. ^ Middlesex Co. vs. Osgood, 4 Gray 447. no Various Ans. may be Filed at same time. were illegally sold.' Accord and satisfaction." Action prematurely brought unless it so appears by the declaration or the plaintiff's proof.' Justification in trespass.* Want of insurable in- terest in plaintiff.5 Recoupment.* Where a special denial is made in an answer, which does not deny all the material allegations in the declaration, the plaintiff need prove only such as are denied.' When Answers in Abatement, Demurrer, and to the Merits may be Filed at the same time. Sect. 50. An answer to the merits may be filed with abatement or demurrer, or with both, in the same paper, if filed within the time of filing the two latter ; in which case the abate- ment and demurrer should precede the answer to the merits.^ ' Granger vs. Ilsley, 2 Gray 521. Bradford vs. Tinkham, 6 Gray 494. ^ Wheaton vs. Nelson, 11 Gray 15. 3 Read vs. Situate, 7 Allen 141. Goss vs. Austin, 11 Allen 525. « Cooper vs. McKenney, 124 Mass. 284. HoUenbeck vs. Rowley, 8 Allen 473. Ward vs. Bartlett, 12 Allen 419. Levi vs. Brooks, 121 Mass. 501. 5 Forbes vs. Am, Life Ins. Co., 15 Gray 249. ' Hodgkins vs. Moulton, 100 Mass. 312. ' P. S. c. 167, § 28. Eastern R.R. vs. Benedict, 10 Gray 215. Snow vs. Chatfield, 11 Gray 12. * Fisher vs. Fraprie, 125 Mass. 472. Claflin vs. Thayer, 13 Gray 459. O'Loughlin vs. Bird, 128 Mass. 600. Various Ans. may be Filed at same time, iij Tender. No Exception.lies on a motion for Nonsuit, unless, etc. Sect. 51. Tender admits all the material allegations of the plaintiff's declaration neces- sary to maintain his action ; and if the tender is refused, the issue to be tried is the amount of damages.' Not so in an offer of judgment which is not accepted within ten days after no- tice of filing it. At the trial the fact that such offer has been made is not evidence and not even to be mentioned,'' nor is it evidence in any other action. Sect. 52. No exception lies on the ground that the judge refused on motion to order a non- suit on the evidence introduced by the plaintiff, unless the defendant there rests the case. If motion for nonsuit be denied in such case, and defendant afterwards introduce evidence, it is a waiver of his motion for nonsuit.^ If the declaration contain more than one count, each should be answered separately if a different substantive fact be stated in each count.'' Immaterial averments in a declaration need not be answered. 5 Bacon vs. Inh. of Charleton, 7 Cush. 585. ^ P. S. c. 167, § 76. 3 McGregory vs. Prescott, 5 Cush. 67. Barrett vs. Maiden & Melrose R.R., 3 Allen loi. * P. S. c. 167, § 17. Manners vs. Haverhill, 135 Mass. 169. 5 Woodbury vs. Jones, 3 Gray 261. Willard zs, Williams, 7 Gray 185. J 12 To What Pleadings Demurrers Apply. DEMURRERS AND EXCEPTIONS IN ACTIONS AT COMMON LAW. To What Pleadings Demurrers Apply. Time of Filing Same. Sect. 53. Demurrers apply to defects in the pleadings; to wit, the declaration, answer to the merits, abatement, and replication, — and not to the process or to demurrers.' Sect. 54. The time of filing demurrers, ex- cept on motion, is regulated by the rules of the several courts, — in the supreme within thirty, in the superior within ten, days" after the return day of the writ, in the municipal (central) court of Boston on or before Tuesday next after the return day of the action.^ ' p. S. c. 167, §§ II, 12, 13. May vs. W. U. Tel. Co., 112 Mass. 90. Smith vs. Dexter, 121 Mass. 599. Wildes vs. Marshall, 117 Mass. 31. ^ Better thirty days, as it takes a week or ten days for the clerks to docket the entries, and the declarations cannot be examined till the docket is made up. 3 Supreme Court, Rule 6. Superior Court, Rule 16. Municipal Court of the city of Boston, Rule 10. General Demurrers at Common Law. irj Sect. 55. At common law or in special plead- ing, as it is called, demurrers are of two kinds, — general and special. The former refer to matters of substance, and are usually stated in general terms; as, " The defendant eays the declaration is not sufficient in law." The special demurrer adds to this a specification of the particular de- fects of form alluded to.' General and Special Demurrers at Common Law. Sect. 56. Hence from the form arose the terms general and special demurrers in special pleading. But by that system there is a more marked distinction in the treatment than in the form, for in case a general demurrer is filed to the declaration, the plaintiff may amend, of course, or join issue on the demurrer ; if the latter, then the parties elect to stake their whole case on an issue of law, for the demur- rer admits the material facts stated in the declaration, and the defendant cannot after- wards traverse them in the same action, so that if the demurrer be overruled judgment is en- tered for the plaintiff for his damages and costs ; if sustained, then judgment for the de- fendant for his costs. This, however, does not ' Stephen on Plead., pp. 45, 140. i Chitty Plead., 663, 666. 114 Why the Terms General and estop the plaintiff from bringing a new action for tlie same cause, and recovering on a good declaration.' Sect. 57. And tin special pleading, if the defendant's special demurrer to the form of the declaration be overruled, the order is that the defendant answer over, respondeas ouster. If sustained, then that plaintiff have leave to amend. If these orders are complied with, then the cause proceeds to trial on its merits ; if not complied with, then judgment on default or nonsuit, as the case may be, for not further defending or prosecuting the suit. In special pleading, judgments rendered at nisi prius on special and general demurrer are alike subject to revision by the full court.' Why the Terms General and Special Demurrers are Retained. Difference Defined. Sect. 58. Though the practice act of 1852, chap. 312, — adopted into the General Statutes of i860, chap. 129, and again into the Public Stat- • Gould's Plead., u. 9, § 8. Stephen Plead., p. 104. Bridge vs. Sumner, I Pick. t;!. Wade vs. Howard, 8 Pick. 353. Wilbur i/s. Gilmore, 21 Pick. 250. Hayes vs. Collins, 114 Mass. 54. Norton vs. Huxley, 13 Gray 285. Colt vs. Learned, 133 Mass. 411. Jordan vs. Siefert, 126 Mass. 25. Tracy vs. Merrill, 103 Mass. 280. " Stephen Plead., p. 105. Perkins vs. Burbank, 2 Mass. 81. special Demurrers are Retained. ii^ utes of 1 88 2 , chap. 167 — abolishes the distinction between the form of general and special demur- rers, by requiring all demurrers to assign spe- cially the causes of demurrer and the particulars in which the alleged defect consists, yet inas- much as the practice act has broadened the dis- tinction between a demurrer that in effect states " that the facts do not in point of law support or answer the action" from one that excepts to the form of pleading, it will still be convenient to denominate them general and special demur- rers, and such will be the course pursued in this treatise, — general demurrers being intended for substantial defects, and special demurrers for formal defects. Sect. 59. The language of Chief Justice Bigelow in Washington vs. Eames, 6 Allen 419, applies only to abolishing the distinction of form between a special and general demurrer of the common law, leaving the broader distinction remaining, that the one shall abide the decision of the nisi prius judge, while the decision of the same judge on the other may be revised by the full court. Sect. 60. The distinction between general ii6 Important to Distinguish between and special , demurrers under the practice act of Massachusetts, already cited, is well defined by the late learned Chief Justice Shaw in Min- turn vs. Manufacturers' Ins. Co., lO Gray 504, thus: — " Whenever the cause of demurrer is that the facts alleged will not support " (or answer) "the action, that is 9, question on which the whole court is to pass. Any thing short of that goes to the form of the declaration" (or answer), " and the decision of a single judge is final." ' Important to Distinguish between Immaterial and Material Allegations. Sect. 61. From the above concise distinc- tion between general and special demurrers, it becomes important to know accurately what is necessary to be proved in every cause, and also what answer to the merits is necessary to put in issue the material allegations in the declaration to avoid a general demurrer ; for if material allegations be omitted in the declaration, or the answer sets up immaterial matter only in avoid- ance, all such defects are open to a general ■ p. S. c. 167, § 67. Gould's Plead., c. 9, §§ 17, 18. Amherst and B. R.R. vs. Watson, 4 Gray 62. Thompson wj.O'Sullivan, 6 Allen 303. Kellogg vsi Kimball, 122 Mass. 164. Immaterial and Material Allegations, jiy demurrer.' The second volume of " Greenleaf on Evidence" and " Saunders on Pleading and Evidence," are good authorities to consult on this point; bearing in mind, however, the changes that have been made by statute as to the proof of certain material allegations, — as suits by corporations, executors, administrators, etc., referred to in sections thirty - five and thirty- six. • Oliver vs. Gold Mining Co., ii Allen 283. ii8 Special Demurrers. SPECIAL DEMURRERS. Sect. 62. A special demurrer excepts to matters of form only, where, notwithstanding such defects, enough substantial allegations re- main to entitle the opposite party to a judgment on a verdict, and are such defects as will be deemed to be waived unless specially demurred to, — as in action of slander where thq general charge set forth in the declaration is itself one importing a felony by declaring that the defend- ant falsely and maliciously accused the plaintiff of the crime of larceny, by saying that " the plaintiff is dishonest." The defect is one of form in not setting forth the relation of the plaintiff and defendant; as, that the plaintiff was a clerk of the defendant, and was accustomed to receive money belonging to the defendant in his business and fraudulently not accounting for it.' ' Chase vs. Sherman, 119 Mass. 391. Downs vs. Hawley, 112 Mass. 241. Clay vs. Brigham, 8 Gray 161. Preston vs. Neale, 12 Gray 222. special Demurrers. iig So misjoiner of causes of action.' So inconsistency in defences set up in the answer/ Or that the defendant owes plaintiff ten dol- lars for rent/ Or a defect of form in a declaration on an assessment on an insurance policy." Sect. 63. Also a declaration on a foreign judgment that does not show that the court had jurisdiction.' Or a suit on a bond to dissolve attachment against the sureties, which does not aver that the plaintiff had obtained a final judgment against the principal, nor that there had been a breach of the bond, nor that the defendants owed the plaintiff on the same, can be taken advantage of only by a special demurrer, and thereby give the plaintiff opportunity to amend.' Want of allegation of notice.' Or a declaration on a promissory note that ' Commonwealth vs. Dracut, 8 Gray 455. Barlow vs. Leavitt, 12'Cush. 483- ^ Jewett vs. Locke, 6 Gray 233. Lyons vs. Ward, 124 Mass. 364. 3 Batchelder vs. Batchelder, 2 Allen 105. « Shawmut Mutual Fire Ins. Co. vs. Stevens, 9 Allen 332. 5 Upham vs. Damon, 12 Allen g8. ^ Huntress vs. Burbank, in Mass. 213. Witt vs. Potter, 120 Mass. 360. ' Commonwealth vs. Dracut, 8 Gray 455. 120 Special Demurrers. does not allege to whom the note was made payable, or that the defendant owes the plaintiff as administratrix.' Sect. 64. If the defendant in his answer admits that the libellous article applied to plain- tiff, he cannot afterwards object on the ground that the declaration does not sufficiently al- lege it.^ A declaration for covenant broken against heirs that does not allege settlement of deceased estate, nor that defendants have inherited his estate, are formal defects.^ Sect. 65. Examination of the cases here cited will pretty clearly indicate what are con- sidered formal defects, and if demurred to must abide the ruling of a single judge at nisi prius ; and even if a general demurrer point out formal defects in connection with substantial ones, the full court will only consider the latter.* In all the cases where the full court say that the objection could only be taken by demurrer, it is ' Osborne vs. Osborne, 114 Mass. 515. ® Whittemore vs. Ware, loi Mass. 352. 3 Eddy vs. Chace, 140 Mass. 471. * Kellogg vs. Kimball, 122 Mass. 164. Worthington vs. Houghton, 109 Mass. 486. special Demurrers. 121 implied that the defect is formal, and liable to a special demurrer only; and it not being filed, the objection is waived. Sect. 66. Since the ruling of a single judge on special demurrers is final, as well as on answers in abatement, it follows that no judg- ment can be rendered on special demurrers, and, consequently, no appeal or exception can be taken to such ruling ; for if the demurrer be sustained, the plaintifi must amend ; or if over- ruled, the defendant must answer over as the case may be; and in default thereof a nonsuit or default must follow for not further prosecuting or defending the suit and judgment thereon. Sect. 67. If such demurrer be overruled, then the case will be disposed of before the single judge as if no demurrer had been filed ; that is, the parties must proceed to trial of the case on its merits, or submit to nonsuit or de- fault, as the case may be. Special demurrers and pleas in abatement in special pleading, which system was in vogue in the courts of Massachusetts till 1836, were termed dilatory pleas ; and when filed by the defendant and overruled, the order was that he answer over, — 122 Special Demurrers. respondeas ouster, — which order was there termed an anomalous judgment (Stephen on Plead., p. 105). In order to avoid ambiguity, the term judgment will not be applied in this treatise to any ruling opinion or order of court short of an order for judgment that is final, for the time being at least, as to the court ordering it, and such as that if no appeal or other proceeding be had, execution may issue from that court.' ' Steph. Plead., p. 105. 1 Chitty Flead., 466. Commomvealth vs. Glouces- ter, no Mass. 496. Verdict Defined. I2j GENERAL DEMURRERS AND EXCEPTIONS, Verdict Defined, yudgment on same may be reviewed when. Sect. 68. A verdict in law is a unanimous decision given by a jury, and is generally ren- dered on an issue, or issues, of fact.' Sect. 69. No appeal from a judgment on a verdict in the superior court or in the late court of common pleas has been allowed since St. 1840, c. 87, §4." Sect. 70. When there is sufficient cause, in the opinion of the court, to review a judgment in civil causes in the superior or supreme court, and the execution has not been satisfied in whole or in part, the court may, on petition, vacate it, and order the case to be brought forward on the docket to be tried and disposed of as if said" ■ Bearce vs. Bowker, 115 Mass. 129. HoUis is. Richardson, 13 Gray 393. 2 Rev. Sts., c. 82, § 6. P. S. c 152, § 10. 124 Verdict of a Sheriff's Jury. judgment had not been rendered.' And a ver- dict may be defeated by a discharge in bank- ruptcy or insolvency." Verdict of a Sheriff'' s Jury no Exception. No Appeal from a Judgment on a Finding in Jury Waived Cases. Sect. 71. And the verdict of a sheriff's jury is no exception as regards an appeal ; for in that case the judgment is rendered on the accept- ance or non-acceptance of the verdict, which raises, if an appeal be taken, a question of law.3 Sect. 72. In jury waived cases, the award of a single judge given on questions of fact is usu- ally termed a finding ; and being in the nature of a verdict, there is no appeal from a judgment rendered on it.* Sect. 73. There is a distinction between a ruling made by a single judge on a question of ' p. S. c 187, § 17. Capen vs. Stoughton, 16 Gray 364. Mason vs. Pearson, 118 Mass. 61. ^ Kellogg vs. Kimball, 135 Mass. 125, and 138 Ma$s. 442. 3 Farwell vs. Cambridge, 1 1 Gray 413. Allen vs. Charlestown, 109 Mass. 243. Hilbourne vs. Suffolk, 120 Mass. 393. Parks vs. Hampden, 120 Mass. 395. Rich vs. Lancaster R.R., 114 Mass. 514. Wood vs. Hudson, 114 Mass. 513. Central Bridge Co. vs. Lowell, 15 Gray 106. * Bass vs. Haverhill F. Ins. Co., 10 Gray 400. Knowles vs. Bachelor, 106 Mass. 343. Cochraine vs. Boston, i Allen 480. , Demurrers and Exceptions. 12^ law and a judgment rendered on sUch ruling. Such judgment is subject to an appeal to the full court, while the ruling is not.' Difference between Demurrers and Exceptions. Sect. 74. An appeal can properly be taken only from a judgment in any case. And when judgment is rendered for the defendant on a ruling upon an issue or question of law which goes to the whole case, either an appeal must be taken or execution may issue. Such judg- ment is said to be final, because no further pro- ceedings can be had in that court, except to issue execution. But if an appeal be taken, execution is staid until the question of law is settled by the full court. Sect. 75. The distinction between an appeal and a bill of exceptions to the full court is this : When a judgment is rendered wholly on the de- cision of an issue or question of law, arising from the pleadings sustaining the objection to the whole declaration or answer, then appeal is the proper remedy, which is claimed orally, and is noted on the docket ; and copies of the proper papers in the case are made by the ' Case vs. Ladd, 2 Allen 130. Bennett vs. Clemence, 3 Allen 431, 126 Former Treatment of Demurrers. clerk to be entered upon the law docket of the full court.' Sect. 76. But when a general demurrer or a motion made for a nonsuit, on the ground that the facts stated in the declaration do not in point of law sustain the action, is overruled, and the case proceeds to a verdict against the party demurring or objecting ; or when the plaintiff on opening his case states what he shall offer to prove, and the court rules that he cannot re- cover on the declaration, and such proof, or objection to the admission of evidence in the course of the trial, is overruled ; then the rem- edy is by exceptions reduced to writing by the attorney in a summary mode, and filed with the clerk, who is immediately to present them to the judge for allowance. " In all cases the adverse party shall have an opportunity to be heard concerning their allowance." '^ Former Treatment of Demurrers. Sect. ']']. Prior to the practice act of 1852, c. 12^, a general demurrer, whether sustained or ' Wamesit Bank vs. Buttrick, ii Gray 388. Mitchel vs. Shanley, 12 Gray 206. Baldwin z'j Hildreth, 14 Gray 221. P. S. c. 152, § 10. Greenwood z^J. Bradford, 128 Mass. 297. Ellis vs. Atlantic & Pacific R.R., 134 Mass. 340. Amherst & Belchertown R.R. vs. Weston, 4 Gray 62. '■ P. S. c. 153, §§ 8, 15. Cassidy vs. Old Col. R.R., 141 Mass.174. Former Treatment of Demurrers. I2j overruled at nisi prius, was generally followed by a final judgment ; and if no appeal was taken, execution issued. If an appeal was taken, the whole case went up, but only the judgment on the demurrer was revised ; and as that was de- cided by the full court, final judgment was gen- erally rendered,, and execution issued from the supreme court. Sect. 78. Except on motion and leave of court, a case could present but one issue under the system of special pleading, — either an issue of fact or an issue of law. If a plea in bar was filed, then the case was tried on its merits ; and if no question of law arose during the progress of the trial, final judgment was rendered on the verdict. But if a general demurrer, instead of a plea in bar, was filed, and the opposite party joined issue on it, then the parties chose to stake the result of the case on an issue of law.' Sect. 79. It is readily seen that the final determination of an issue raised by a general demurrer was unequal ; inasmuch as, if the de- murrer was sustained by the full court against ' Stephen Plead., p. 104. Lowell vs. Morse, i Met. 473. Brown vs. Castles, II Gush. 348. 128 What the Practice Act Provides. the plaintiff, he might bring another suit for the same cause of action, providing he made a good declaration. But if the demurrer was over- ruled, judgment was rendered for the plaintiff for his debt and costs/ The Practice Act provides for Settling Law and Fact. Sect. 8o. The practice act made radical changes in the mode of pleading. It is very evident that the commissioners who drafted the act,^ and the legislature that passed it, in- tended to provide that both the issues of law and fact that thereafter might arise in any ac- tion at law might be definitely settled during the pendency of the same case, provided liti- gants, by their attorneys, duly observed the rules laid down for answers, and seasonably availed themselves of amendments. For that purpose different consistent defences may be separately stated in the same answer,^ and answers in abatement, demurrer, and to the merits may be filed at the same time and in the same paper, if filed seasonably, and written and heard in the order here named.* ' Jordan vs. Siefert, 126 Mass. 25. Hayes vs. Collins, 114 Mass. 54. 2 Hall's Mass. Practice. ' P. S. c. 167, § 16, and Wheaton vs. Nelson, 11 Gray 15. * O'Laughlin vs. Bird, 128 Mass. 600, What a Demurrer Admits. i2g Sect. 8r. Yet there cannot be two final judgments in a case existing at the same time, one on an issue of law, and another on a ver- dict. When the trial of a cause has resulted in a verdict, judgment must be rendered on it, unless it be set aside or vacated on a motion for a new trial, or by exceptions or by proceedings in in- solvency.' It is true that since the adoption of the practice act by St. 1852, c. 312, some re- ported cases show that by force of custom, ap- peals, instead of exceptions, have been claimed on demurrers being overruled, when at the same time the cases proceeded to trial and verdicts ; but such claims amounted to no more than ex- ceptions, as the points of law raised by the demurrers were usually taken to the full court by bill of exceptions. What a Demurrer Admits. Amendments. Sect. 82. A general demurrer under the practice act admits, for the sake of the argu- ment, that the material allegations in the decla- ration, for instance, are true ; but not such admission as at common law estops the defend- ant from traversing the same allegations, in the same cause, on his demurrer being overruled ; ' Kellogg vs. Kimball, 138 Mass, 441. /JO V/hat a Demurrer Admits. for the usual order of the presiding judge is, that the defendant answer over, which he must do, if at all, by an answer to the merits." But if an answer in abatement be overruled, he may answer by demurrer, being next in the order of pleas at common law ; though by that law final judgment followed the overruling of a plea in abatement on matters of fact. But a plea in abatement, for defects apparent in the record, if overruled, the order of court is, that defendant answer over. Sect. 83. But a demurrer does not admit conclusions of law, such as the usual allegations in actions of contract that " the defendant owes the plaintiff the amount of said note," etc.-" Sect. 84. Amendments will generally be al- lowed, if seasonably offered. If, for instance, a general demurrer to the whole declaration be sustained by a single judge, the plaintiff should then amend, if ever ; for if, on appeal, the de- murrer is also sustained, the defendant will generally be entitled to judgment, on motion, ' Young vs. Gilles, 113 Mass. 34. Dorr vs. McKinney, 9 Allen 360. Lee vs. Kane, 6 Gray 496. Boston Glass Mamxf. Co. vs. Langdon, 24 Pick. 51. Everett vs. Drew, 129 Mass. 150. Gould's Plead., 300. P. S. c. 167, §§ 41, 42. ^ Millard vs. Baldwin, 3 Gray 486. Jones vs. Dow, 137 Mass. 119. Read vs. Smith, I Allen 521. Amendments, when Allowed. i^r after the rescript has been filed, for the reason that the plaintiff, by his appeal, virtually admits that the declaration cannot be amended.' An amendment, without notice to the subse- quent purchaser or subsequent mortgagee, that introduces a new cause of action, discharges the attachment, and lets in the said purchaser or mortgagee or subsequent attaching creditor.'' Sect. 85. And so, likewise, if such demurrer be overruled, the case must proceed, if ever, to trial on the issues of fact; that is, on its merits; otherwise judgment will be rendered for the plaintiff, on default, for not further prosecuting the defence for his damages and costs ; from which judgment the defendant may appeal, be- cause rendered on an issue of law ; and if the appeal be dismissed by the full court, judgment will generally be again rendered on motion in the trial court for the plaintiff, since the defend- ant by his appeal impliedly admits that the plaintiff is entitled to judgment, if his declara- ' Dennehey vs. Woodsum, xoo Mass. 197. Cook vs. Cook, 100 Mass. 194. Costello vs. Crowell, 134 Mass. 284. Hollis vs. Richardson, 13 Gray 394. Everett vs. Drew, 129 Mass. 151. Silver vs. Jordan, 139 Mass. 280. P. S. c. 167, § 68. Webber vs. Davis, 5 Allen 397. Thomson vs. O'SuUivan, 6Allen 303. 2 Freeman vs Creech, 112 Mass. 180. Wight vs. Hale, 2 Cush. 486. Wood vs. Denny, 7 Gray 542. Warren vs. Lord 560. 132 No Amendment Allmved in Full Court. tion is a good one, and that there is no defence to the action on the merits,' though there are some exceptions to this rule." No Amendment Allowed in the Full Court. Variance. Sect. 86. No amendment or motion for a new trial can be allowed in the full court, as the appeal, exception and report do not transfer the action, but only the question of law. The rec- ord remains ; and when the question or issue of law is decided, a rescript, stating in a summary manner the grounds of the decision, is sent to the clerk of the court where the record of the case is, who immediately notifies ^he attorney of each party that a decision has been made. The rescript becomes a part of the record. The opinion, in extenso, is filed with the reporter.^ Sect. 87. It follows that the last clause of Sect. 67 of Chap. 167, Public Statutes, applies to the single justice referred to in that section, and not to the full court. Sect. 88. But in case the defendant obiects ' Brown ts. Castles, ii Cush. 348. ' Murdock vs. Caldwell, 10 Allen 299. 5 P. S. c. 153, § 15. McRae vs. I.ocke, 114 Mass. 96. Commonwealth vs. Scott, 123 Mass. 418. Johannes vs. Underwood, 6 Allen 240. Bryan vs. Bates, 12 Allen 205. Rich ». Lancaster, 114 Mass. 514. A Demurrer to One of Several Counts, /jj to evidence on the ground of variance, and the objection is overruled and the case proceeds to trial, and verdict against him, and he excepts, and the full court find it to be a variance ; yet it will say in its rescript: If the plaintiff will amend in the court below, and take no costs since the verdict, the exceptions may stand overruled, otherwise, sustained. This condition is made on the ground that the case has been fully tried on its merits.' Sect. 89. Since the ruling of a single judge upon pleas or answers in abatement, as already stated, is final, and not subject to exceptions or appeal, an appeal from a formal judgment on a demurrer to a plea in abatement will be dis- missed.'' A Demurrer to One of Several Counts; the Rest must be Answered or Plaintiff will be Entitled to Judgment. Sect. 90. If defendant demur to one of several counts, the rest must be answered, or * Denham vs. Brj'ant, 139 Mass. no. Cleaves vs. Lord, 3 Gray 71, Stone vs. White, 8 Gray 595. Nichols vs. Prince, 8 Allen 405. Peck vs. Waters, 104 Mass. 35t. Keller vs. Webb, 126 Mass. 393. Whitney vs. Houghton, 127 Mass. 529. Fay vs. Guynor, 131 Mass. 36. ^ P. S. c. 152, § 10. Wildes vs. Marshall, 117 Mass. 311. Richmond zfi Whittlesey, 2 Allen 233. Jaha vs. Belleg, 105 Mass. 208. Bartol vs. Stan- wood, 7 Cusb. 115." Browning vs. Brancroft, 5 Met. 88. Sawyer vs. Pratt, 9 Met. 170. P. S. c. 1840, c. 87, §§ 4, 5- /j^ Issues of Fact First to be Tried. plaintiff will be entitled to judgment on the unanswered counts.' Sect. 91. As a rule, the full court will not entertain an issue of law so long as an issue of fact remains open by the pleadings, . for the rea- son that the trial of such issue may result in a verdict for the party demurring ; if not, other questions of law may arise during the trial for the full court on exceptions ; therefore, if a general demurrer be filed to one or more counts in the declaration, and an answer to the merits to the rest, or to all the counts, the demurrer must first be heard ; and if overruled by the single judge, the trial must proceed on all the counts, and if verdict is against the defendant he may then except to the ruling on the demur- rer. And so if a demurrer to the whole declara- tion be sustained the plaintiff may appeal.'' * Dwight vs. Holbrook, i Allen 560. Case vs. Ladd, 2 Allen 130. ^ Clay vs. Brigham, 8 Gray 161. Stetson vs. Exchange Bank, 7 Gray, 425. Maher vs. Doherty, 11 Gray 16. Bennett vs. Clemence, 3 Allen 431. Case vs. Ladd, 2 Allen 130. Hogan vs. Ward, 117 Mass. 67. Commonwealth vs. Hanley, 121 Mass. 377. Kellogg w. Kimball, 122 Mass. 163. Eliot w. Eliot, 133 Mass. 555. Boyce vs. Wheeler, 133 Mass. 554. Clifford vs. Rockett, 119 Mass. 71. Harding vs. Pratt, iig Mass. j88. Safford vs. Knight, 117 Mass. 283. Commonwealth vs. Sallen, 11 Gray 52. Riley vs. Farnesworth, 116 Mass. 225. Nat. Bank of Clinton vs. Taylor, 117 Mass. 283. Crompton Carpet Co. M.Worcester, 119 Mass. 375. Marshall vs. Merritt, 13 Allen 274. Commonwealth vs. Faulus, 11 Gray 305. A Demurrer to One of Several Counts, ij^ Sect. 92. So if a demurrer to all or part of several counts in a declaration be overruled by the single judge, and a trial result in a verdict against the defendant, he may then except, but not appeal, because no judgment is rendered on the demurrer, as the demurrer and ruling are of record ; and if the question raised by the de- murrer is sustained by the full court as to one of the counts, a new trial will be ordered.' Sect. 93. This, it may be remarked, is a departure from proceeding at common law, or special pleading ; for by that system a case in general can be tried only on an issue of law or fact, and not on both. If there be a joinder on demurrer to the full court, then final judgment follows the decision of it ; if sustained there against the plaintiff, then judgment for the de- fendant for his costs ; if overruled, then judg- ment for the plaintiff for his costs and damages. But if at the trial court the plaintiff, in such case, amends, or the defendant answers over, then the case is for trial on issues of fact, and neither party can object to the ruling on the demurrer by the trial judge, as the amendment or answer- ' York vs. Johnson, ii6 Mass. 482. Hotchkiss vs. Judd, 12 Allen 447. May vs. Western Union Tel. Co., 112 Mass. 90. Sears vs. Trowbridge, 15 Gray 185. Smith vs. Milton, 133 Mass. 369. 7jd Substantial Defects Objected to at Trial. ing-over waives that right. And such would be the effect of an amendment under the practice act.' Without a General Demurrer, the Defendant may Object to the Declaration at the Trial. Sect. 94. So by the practice act, without demurring, the defendant may at the trial object to the declaration, on the ground that the facts therein stated do not support the action ; or, after the plaintiff's evidence is in, he may then raise the same objection to both the declaration and evidence, if he is prepared to rest his case at that point, and offer no evidence in defence ; and, if overruled, in the first case he may ap- peal, in the second case, except, stating in the exception the declaration and evidence.^ Demurrers must State the Defects Objected to. No Others will be Considered. Sect. 95. Inasmuch as the full court is authorized to determine only the questions of law raised by appeal, exceptions, or report, the record of the case not being transferred to the ' Gould's Plead., c. 9, § 42. Steph. Plead., p. 104, 6th Am. ed. Burn- baum vs. Crowninshield, 137 Mass. 177, Rea vs. Harrington, 58 Vt. 184. ^ Hervey vs. Moseley, 7 Gray 479. Chandler vs. Sanger, 114 Mass. 365. Oliver w. Gold Mining Co., 11 Allen 285. Cassidy vs. Old Colony R.R., 141 Mass. 174, 177. Benton vs. Boston City Hospital, 140 Mass. 13. Case vs. Stevens, 137 Mass. 551, Note on the St. 1866, c. 220. /j/ full court,' it follows that the last clause of § 67, c. 167, Pub. Sts., applies to the single judge at nisi prius. The clause reads thus : — "When a demurrer is sustained, overruled, or withdrawn, the court shall make such order as may be fit respecting the filing of an answer or replication or a trial of facts." ■ Note. — An act of the legislature of 1866, c. 220, and incorporated in the P. S. of 1882, c. 150, § 12, provided that the full court, upon deciding any question brought be- fore it by exceptions, appeal, or otherwise, in any case, civil or criminal, might by writ of certiorari, or other proper process, remove, or order to be removed, the record of the case into the supreme judicial court, and there enter judgment, and might afterwards remit the record to the court from which it had been removed to carry such judgment into effect ; or instead thereof order a new trial, or further proceedings to be had at the bar of the supreme judicial court, or sentence to be awarded, or execution issued in said court. This statute intended a clear innovation in the mode of trying issues of fact and issues of law from that provided by the Gen. Sts. of i860, c. 129, and in effect putting it in the power of the full court to fall back upon the former mode of practice, which the St. 1859, c. 196, was intended to change. But this provision for a writ of certiorari has thus far for twenty years been a dead letter ; for no case has been reported where the record of the superior court in a case at ' P. S. c. 153, § 15. McRae vs. Locke, 114 Mass. 96. Commonwealth vs. Scott, 123- Mass. 418. Joannes vs. Underwood, 6 Allen 240. Bryan vs. Bates, 12 Allen 203. Rich vs. Lancaster, 114 Mass. 514. ij8 Note on the St. 1866, c. 210. common law has been transferred by that writ. The statute clearly missed its aim, because the writ of certiorari is not a writ of right, but is issued on a petition to a justice of the supreme judicial court when the statement of facts in the petition brings the case within the law appertaining to that writ. It is a statute remedy " to correct errors in proceed- ings that are not according to the course of the common law." It does not lie to a court of record, — the remedy for those errors is atherwise provided for, — but lies mainly to county commissioners, mayor and aldermen, and other offi- cers provided by statute, deputed to perform some special duties, such as locating and laying out roads, streets, etc., to correct errors made by them.' But the statute (P. S. c. 150, §12) provides that the full court, " by writ of certiorari or other proper process" may order the record of a case to be transferred from the supe- rior court. In the case of Commonwealth vs. Scott, the defendant filed a motion in the supreme judicial court for a new trial after his exceptions from the superior court had been overruled. It was held that the motion could not be granted whether made before a singly judge of the supreme judicial court, and the question reserved for the full court, or made directly to the latter. The opinion is given by Chief Justice Gray, and the St. 1866, c. 220, is cited therein; and the whole drift of the opinion clearly shows that the same would have been the result if any other known process had been resorted to other than the motion to obtain a new trial. It may then fairly be inferred that the St. 1866, c. 220, and that portion of the P. S. c. 150, § 12, in which it is incorporated, is wholly in- ' Mass. Dig., p. 825. Particular Defects Stated. ijg operative as to appeals and exceptions at common law, as the act did not claim to repeal any other provision of the General Statutes to which it was totally opposed.' The act of 1866, c. 220, seems to have been passed to meet such cases as that of Bryan 71s. Bates, 1 2 Allen 206, — tliat when one has been indicted under the liquor law of the State, and pleads a revenue license in bar, and the plea is adjudged bad by the superior court, and exceptions takeji to the full court, but the sentence is nevertheless forthwith passed on the ground that the plea is frivolous, that the defendant might be released from imprisonment on a peti- tion for habeas corpus or other process. It was finally settled that such plea was bad by the su- preme court of the United States, in the case of McGuire in error vs. the Commonwealth, 8 Wallace 387. The brief of the late Hon. Caleb Gushing, one of the counsel for the plaintiff in error in that case, shows his remarkable power, learning, and resources in argument. Sect. 96. Demurrers must state the particu- lars in which the alleged defects consist ; no others, though they exist, will be considered by the full court.'' So with exceptions.' ' Randall petitioner, ii Allen 472, 478. = P. S. c. 167, §§ II, 12. Washington vs. Eames, 6 Allen 419. Suffolk Bank vs. Lowell Bank. 8 Allen 357. Smith vs. Milton, 133 Mass. 372. Kel- logg vs. Kimball. 122 Mass. 165 ; 142 Mass. 128. New Haven & Northamp- ton Co. vs. Campbell, 128 Mass. 107. Washington vs. Houghton, 109 Mass. 481. Proctor vs. Stone, 1 Allen 196. Davis vs. Coburn, 12S Mass. 382. s Talbot vs. Taunton, 141 Mass. 552. 140 Exception, Exception when the Demurrer goes to the Entire Ground of Action. Sect. 97. Though where the demurrer goes to the entire ground of action, and not to any specific ' defect or cause of demurrer, it will be sufficient to aver that the matters set out in the declaration or answer, as the case may be, are insufficient in law to support or answer, the action.' Sect. 98. And it seems it may be too late to object to the form of the demurrer, after ap- peal and submitting the case to the judgment of the full court, where the demurrer only states in general terms ; as, that the facts alleged in the declaration or answer do not support or answer the action.' Sect. 99. " The opposite party shall be deemed to join in demurrer, if he does not amend, which he may do within such time, and upon such terms, as the court may allow ; " and such terms must be complied with before trial, if insisted on by the opposite party,' , ' Chenery -vs. Holden, i5 Gray 126. Regan vs. Baldwin, 126 Mass. 485. Thompson vs. Sullivan, 6 Allen 303. " Colt vs. Learned, 118 Mass. 380. 3 P. S. t. 167, § 25. Discretion. i^i Sect. ioo. When a demurrer to the declara- tion is overruled by one judge, and the trial on the merits be had by or before another, the latter, at his discretion, may sustain the same point raised by the demurrer, if put in issue by the answer." Where a yudge Rules on Matters "within his Discretion. Sect. ioi. Where a judge rules on matters within his discretion, such rulings are not sub- ject to exceptions nor appeal, — such as allowing or disallowing amendments, or denying a mo- tion that plaintiff elect on which count he will claim a verdict, — nor for overruling a motion for nonsuit after plaintiff's evidence is in, unless the defendant rests the case on that evidence ; if he does not, then he waives his motion. But this does not apply where the statute gives the right to answer over, as in case of abatement being overruled for defects appearing of record.^ ' Calder vs. Haynes, 7 Allen 389. Webber vs. Davis, 5 Allen 393. == Gregoi^ vs. Prescott, 5 Cusli. 67. Bailey vs. Joy, 132 Mass. 357. Clapp vs. Clapp, 137 Mass. 183. Teagiie vs. Irwin, 134 Mass. 307. Wheatland vs Keyes, 3 Allen 498. Carlton vs. Pierce, i .^llen 26. Sullivan vs. Fitzgerald, 12 Allen 482. Hulet vs. Pixley, 97 Mass. 29. May vs. Western Union Tel. Co., 112 Mass. 93. Downesw.Hawley, 112 Mass. 237. New Haven & Nortli- ampton Co. vs. Campbell, 128 Mass. 104. Payson vs. Macomber, 3 Allen 69. MuUaly vs. Austin, 97 Mass. 30. Gray vs. Cook, 135 Mass. 189. Harding vs. Noyes, 125 Mass. 572. Stern vs. Filene, 14 Allen 9. Commonwealth vs. Pratt, 137 Mass. 98. Leonard vs. O'Reilley, 137 Mass. 138. VVheaton vs. Nelson, 11 Gray 15. George vs. Reed, 101 Mass. 378. P. S. c. 167, § 41. ] ^2 Defects in the Process. Sect. 102. If on hearing of an appeal or exceptions by the full court, either in actions at law or suits in equity or other proceeding, it appears that the appeal or exceptions are frivo- lous, immaterial, or intended for delay, the court may, either upon motion or without any motion therefor, award double costs and interest from the same time, at the rate of twelve per cent by the year, on any sum which has been found due for debt or damages, or which he has been or- dered to pay, or for which judgment has been recovered against him ; or the court may award any part of such additional costs and interest.' Demurrers will not Lie for Defects in the Process. Sect. 103. A demurrer will not lie for de- fects in the process. If the defect is apparent on inspection of the writ, officer's return, or the re- plevin bond a motion to dismiss will lie iij com- mon with abatement. But if the defect is not so apparent, as if it is claimed by the defend- ants that the names of the sureties in the bond were forged, or the defect be nonjoinder, then ' St. 1883, § 15. Ames vs. Stevens, 120 Mass. 218. Norris vs. Lynch, 121 Mass. 586. Blackington vs. Johnson, 126 Mass. 21. Webber vs. Davis, 5 Allen 397. Hill vs. Dunham, 7 Gray 543. Burbank vs. Woodward, 124 Mass. 358. Witt vs. Porter, r25 Mass. 360. Butchers' and D. Bank vs' McDonald, 130 Mass. 264. Connor vs. Harlan, 130 Mass. 266. Agreed Statement. i^j abatement alone will lie, which must allege the fact to be proved by evidence aliunde the record.' Sect. 104. Though P. S. c. 167, § 4 author- izes that when several persons are liable upon the same instrument, though by different con- tracts, as in the case of the maker and indorser of promissory notes and the several parties to bills of exchange, they may be sued in one ac- tion, and the different contracts declared upon in one count ; yet it is better to declare against the makers of a note or acceptor of a bill in one count, and another count against the indorsers and drawers.'' Agreed Statement. Sect. 105. An agreed statement of facts presents purely an Issue of law to be sub- mitted to the trial judge, upon whose decision judgment is rendered, from which appeal is taken to the full court, whose decision on the issue of law usually determines the case ; and a rescript to that effect is sent down, on which judgment is entered accordingly. ' May vs. Western Union Tel. Co., 112 Mass. 93. Phillips vs. Cum- mings, 1 1 Cush. 469. 2 Colt vs. Learned, iiS Mass. 380- Costigan vs. Lunt, 104 Mass. 217. Grocers' Bank vs. Kingman, 16 Gray 247. l/f^ Waives Formal Defects. But in the agreed facts care must be taken that no issue of fact is left open for decision ; otherwise the case will be sent back for trial of such issue.' Sect. io6. The term " continued /zm," indi- cates that the case is continued to the next term or sitting of court, unless before that time some order shall be made in relation to the case, as of the previous term ; and until the record of a case is fully extended, the docket is the record.'' A General Demurrer Waives Formal Defects. Sect. 107. Though the writ may summon the defendant to answer in contract only, yet the declaration may add a count in tort for the same cause of action.^ Sect. 108. A general demurrer or answer to the merits waives all formal defects in the decla- ration or answer ; and if it specify defects of • West w. Piatt, 120 Mass. 421. Mass. Digest, p. 212, § 33. Powers w. Provident Inst, for Savings, 122 Mass. 443. Fox vs. Adams Express Co., ii6 Mass. 295. ^ Greenwood vs. Bradford, iz8 Mass. 296. Reed vs. Sutton, 2 Cusli. 115. Reed vs. Home Savings Bank, 130 Mass. 444. 3 Hulet vs. Pixley, 97 Mass. 29, Norris vs. Munroe, 128 Mass. 386. Alternative Verdict. 145 substance, and also defects of form, the full court will only consider the former.' Alternative Verdict Authorized by P. S. c. 153, § 14.. Sect. 109. It sometimes occurs in the trial of a cause that the plaintiff is entitled to a greater or less verdict or finding- as damages, dependent on the final decision of an issue of law raised in the case. If the issue at trial be, ruled against the plaintiff, and the verdict or finding be rendered for a certain sum as dam- ages, — when it is evident that if the ruling of the single judge had been the other way the verdict or finding must justly have been for a larger, certain, and fixed sum as damages, reckoning from verdict thus found, — then the plaintiff's exceptions may state that if the exceptions shall be sustained by the full court, such decision shall determine that judgment be rendered for said larger sum. And so, in such case, if the ruling on the issue of law be against the defendant, whereby the ver- dict or finding be for the larger sum, it may be stated in his exceptions, that, if sustained, judgment be rendered for the smaller sum, in the exceptions. ' Proctor vs. Stone, i Allen 196. 146 Exception to the Charge Irregular. Sect, i 10. Such provision presupposes that the case must first be tried on the facts, and that the verdict or finding fixes the rule for the measure of damages, provided the ruling on the issue of law be the other way.' For if it is admitted by both parties, that if the ruling on the issue of law be in favor of the plaintiff he would be entitled to a certain fixed sum as damages ; and if the same issue be ruled against him he would be entitled to a different fixed sum ; then it is a case for an agreed state- ment of facts. Sect. hi. An exception to the entire charge of a judge to the jury will be overruled for irregularity.^ Sect. 112. And if a party except to rulings in the course of the trial, and also except to the entire charge of the judge to the jury, his ex- ceptions to rulings will only be considered by the full court.3 ■ p. S. c. 153, § 14. Ditmar vs. Norman, ii8 Mass. 323. '■ Churchill vs. Palmer, 115 Mass. 311. Curry vs. Porter, 125 Mass. 94. McMahon vs. O'Connor, 137 Mass. 217. 3 Burt vs. Merchants' Ins. Co., 115 Mass. 1. Commonwealth vs. Costley, 118 Mass. I. Full Court on Appeal and Exceptions. 14"/ Proceedings of the Full Court on Appeal and Exceptions. Sect. 113. By P. S. c. 153, § 15, the full court is to decide questions of law only which are properly presented to be determined ; and when the rescript provided for by c. 150, §• 12, containing a brief statement of the grounds and reason of the decision, is filed in the court whence the questions arose, and there entered of record, then the trial court proceeds with the case as law and justice may require, conform- ably to the opinion of the full court.' Sect. 114. If the question of law is raised by a general demurrer, then the rescript properly declares that the same is " sustained" or " over- ruled," as the case may be. If by exceptions, then that the same are " sustained" or "over- ruled." If by appeal from a judgment on agreed facts rendered by a single justice, then the re- script is, that the appeal is " sustained " or "dis- missed ; '' and in either case, accompanied by summary reasons for the decision. Sect. 115. On report after verdict, finding, or decision on an issue of law by a single jus- tice, the language of the rescript is varied to ' p. S. c. 152, § 13. West vs. Justices of the Superior Court, 124 Mass. 353. /^ iar situation and circumstances of the town of Boston, great delays now exist in the adminis- tration of justice therein, to the great injury to the citizens thereof," therefore there shall be a court of common pleas holden at Boston, within and for the county of Suffolk, on the first Tuesday of every other month, commen- cing in January, to be held by one substantial and discreet person, learned in the law ; the jurisdiction to be the same as that of the circuit courts. Also, that the same judge should hold a court, styled the town court, on Wednesday of every week in the year, for the trial of actions under twenty dollars, as actions are tried before justices of the peace. The Late Court of Common Pleas. Sect. 142. In 1820, when Maine was sepa- rated from Massachusetts, the late courf of common pleas was established by Statute 1820, chap. 79, which provided that a court of com- mon pleas for the Commonwealth of Massa- chusetts should be held in each county, at such ijo Amendment of i8js< <^- loi, times and places as had heretofore been held by the Boston and circuit court of common pleas, by one or more meet persons as judges, who should be men of sobriety of manners and learned in the law ; and any party aggrieved by the judgment of said court, in any real or per- sonal action wherein issue had been joined, in which the debt or damages demanded should exceed one hundred dollars, might appeal to the next term of the supreme judicial court for the same county, by giving surety, or sureties, on recognizance to the adverse party, conditioned to prosecute said appeal ; and pay double of the plaintiff 's subsequent costs, if he failed to reduce said judgment, unless the court appealed to certify that there was reason for the appeal ; also the right to file exceptions to rulings and opinions in matters of law. Atnendment of 1833, c. loi. Sect. 143. Statute 1835, chap. loi, pro- vided that when the court rendered judgment on 'a matter of law, whereby the case was defi- nitely disposed of in the court of common pleas, and the grounds of such judgment were apparent on the record or on an agreed state- ment of facts, the party aggrieved by such Superior Court for County of Suffolk. I'/i judgment, although no issue in law was joined, might appeal to the law term of the supreme judicial court ; and where the grounds of the decision or rulings were not apparent on the rec- ord, nor an agreed statement of facts, the party thereby aggrieved might file exceptions, though the trial of the action or process might not be according to the course of the common law. This act was in addition or amendment of Sect. 5, St. 1820, c. 79, which established the court of common pleas. (See P. S. c. 152, § 10.) If the appeal was sustained by the full court, then final judgment for the appellee. In the case of the exceptions, the ruling below might be affirmed or reversed, and the proper process ordered by the full court to issue, to carry its decision into effect, or to order a new trial at the bar of the supreme judicial court, or remit the case back to the court of common pleas. The following year the revised statutes took effect, April i, 1836, and this act of 1835, c. loi, was therein incorporated (c. 82, §§ 6, 12, Superior Court for the County of Suffolk. Sect. 144. By Statute 1849, chap. 245, the. superior court of the city of Boston was estab- lished for the county of Suffolk, to consist of IJ2 Appeals to Full Court. three judges, whose salaries were to be fixed by the city council, — not to exceed three thousand dollars each, — and who were to have jurisdiction of actions wherein the debt or damages claimed exceeded three hundred dollars, and all real actions. Exceptions and appeals from judgments ren- dered on issues of law were authorized : its juris- diction was generally enlarged beyond that of court of common pleas, and especially in this, that all appeals from the court of probate for the county of Suffolk were to be entered in this court. Appeals from Supreme yudicial Court to the Full Court. Sect. 145. The practice has continued to the present time to appeal from a judgment rendered on such matter of law apparent on the record as would have been rendered on a gen- eral demurrer sustained, for the same defect, in the court of common pleas, and subsequently in the superior court. The appeal and exceptions continued to remove the case, with the record, to the supreme judicial court till the adoption of the General Statutes of i860; or, more accu- rately, till the act of 1859, chap. 196, which act established the present superior court, and, as Appeals to Full Court. //j already stated, restricted the full court to a de- cision of the questions of law so raised, leaving the prerogative of ordering judgment, or other disposition of the case, entirely with the nisi prius judge after the rescript and opinion had been filed ; at the same time strictly observing the decision made in the case by the full court. Sect. 146. And it would seem that the act of 1859, chap. 196, which not only established the superior court, but made radical changes in the mode of practice in and by the full court, also as completely divorced the full court from the nisi prius term of the supreme judicial court as if the full court had been created by an entire bench of separate judges, as regards ap- peals and exceptions at common law. And it seems that the same act authorized appeals from judgments rendered ^t nisi prius by one justice on questions of law in the su- preme judicial court, as well as from such judg- ments in the superior court ; and that subsequent statutes have continued that authority.' Sect. 147. But in the case of Cowley vs. Train, 124 Mass. 226, it was decided that an ' St. 1864, c. 111. p. S. c. 153, §§ 14, 15. 77^ Proof of Exceptipns. appeal from a judgment on a demurrer sustained to the declaration would not lie, from a nisi prius term of the supreme judicial court, tha,t the remedy should be by exceptions. That is to say, that the entry on the trial docket should be, " Demurrer sustained, and plaintiff excepted," instead of " appealed." Even then it would be the duty of the clerk, and not of counsel, to make the copies of the pleadings including said docket entry, which would result in calling that exceptions which is properly an appeal. (See Gen. Stats., c. 115, § 12, and the marginal ref- erence to St. 1859, c. 196, §§ 26, 58, making the appeal apply to both supreme judicial court and the superior court.) Sect, 148. It may be stated, as a rule, that exceptions cannot disturb or vacate a judg- ment ; that appeal operates directly on the judgment, and generally vacates it ; and that exceptions apply to the verdict or finding, its object being to set it aside. Proof of Exceptions. Sect. 149. The party who seeks to pro^^e exceptions to which the presiding judge has appended his certificate that the exceptions are Proof of Exceptions. 775 not in conformity with the truth, must, within twenty days thereafter, file his petition, verified by affidavit, " setting forth in full said allega- tions and the facts material thereto " to the full court, at a sitting thereof, in which the excep- tions would, by law, have been entered, if signed and allowed ; and, before filing, give notice to the adverse party by delivering a copy thereof to him or his attorney.' Sect. 150. If the bill contains several dis- tinct exceptions, numbered, and the presiding judge allows a part of them, or a part of one of them, he will erase the rejected part and sign it. And if counsel considers the rejected part im- portant and true, he may present a copy of his original draft, when the judge will append to it, in substance, as follows: "These exceptions, except as appears by the exceptions already al- lowed in this case, are not in conformity with the truth, and are not allowed." "" Sect. 151. In case there are two bills of ex- ceptions, one allowed and the other disallowed, they must be entered upon the full court docket ^ Rule 30 of the Supreme Judicial Court. Marble vs. Heyes, 4 Gray 570, note. Priest vs. Groton, 103 Mass. 534. 2 Priest vs. Groton, 103 Mass. 536. 1^6 Proof of Exceptions. for the same sitting seasonably. The full court will appoint a commissioner to hear the parties and report the facts. Where he is in doubt whether, upon the facts proved before him, an exception is fairly established, he is to report the facts and submit the question of law arising thereon to the court, — as where the defendant's counsel requested the judge to give certain in- structions to the jury as to the effect they were to give to the auditors' report, which the judge declined to give ; but the commissioner recited in his report to the charge of the judge to the jury on that point. The defendant moved the report be re-committed, on the ground that exception was not properly established. But the court denied the motion. That they were to judge whether the request of the defendant was substantially given by the charge of judge to the jury.^ If a party fail to prove an exception, and there are others which have, been allowed, he may argue the latter." Rule 30, supreme judicial court, requires that the exceptions shall be verified by affidavit that ■ CuUen vs. Sears, 112 Mass. Ela vs. Cockshptt, 119 Mass. 417. Saw- yer vs. Vale Iron Works, 116 Mass. 424. * Priest vs. Groton, 103 Mass. 530. Proof of Exceptions. jy/ requires the attorney who draws up the rejected exceptions to state In his petition that he be- lieves them to be In conformity with the truth, though the affidavit Is not evidence.' The certificate of disallowance, which the presiding judge Is required to make, by P. S. c. 153, § 10, In writing. Is prima facie evidence that the exceptions are not conformable to the truth, though subject to be controlled by other evidence. Sect. 152. This Is a strict remedy; and the exceptions which are presented to the presiding judge must be such as were taken at the trial. It must appear that questions of law were dis- tinctly ruled on, and the evidence given to which It applies ; and none others will be consid- ered. It Is also provided that when the presiding ' judge "fails to sign and return the exceptions," they may be proved ; but, In that case, It must appear In the petition to prove, that they were duly filed, and, If possible, presented to the judge for allowance.'' ' Lyon vs. City of Cambridge, 131 Mass. 571. " P. S. c. 153, § 13. 178 Abatement, — Two Kinds. ABATEMENT. Two Kinds. Process Defined. Sect. 153. The process comprises the writ, ofificer's return, and, in replevin, the bond. The record of a case comprises, in a,ddition to the process, the declaration, answer, written mo- tions, interlocutory orders, and verdict, or find- ing, as the case may be, and judgment. Until the record is fully extended, the clerk's docket is the record of the proceedings.' Sect. 154. Answers in abatement apply chiefly to defects and omissions in the process, though they also apply to abate an action when a former action is pending between the same parties for the same cause. They are of two kinds, — one is said to raise an issue of law; the other, an issue of fact. In either case, the ' Greenwood vs. Bradford, 128 Mass. 296. Whithead vs. Keyes, 3 Allea 498. Fay vs. Wenzell, 8 Cush. 317. i Greenl. Ev., § 521. Abatement in Law and Fact. lyg decision of the presiding judge of the supreme or superior court is final.' Abatement in Law and Fact. Sect. 155. A demurrer will not lie for de- fects proper for abatement.'' An answer in abatement presents an issue of law when the defect is apparent on inspection of the process, and which requires no evidence outside the pro- cess to sustain it ; as when the defect appears on the face of the replevin bond, or mistake in the date of the summons,^ or the officer's return shows insufficient service.* Sect. 156. A motion to dismiss will lie in common with abatement in law for defects ap- parent in the process ; but it will not lie where evidence outside the record is required to sus- tain it, for the reason that a motion does not require, or admit of being traversed, or other- wise pleaded to. Therefore, when the defend- ' p. S. L. 153, § 8. Hamlin vs. Jacobs', 99 Mass, 500. Stackpole vs. Hunt, 9 Allen 539, Blackmar vs. Davis, 16 Gray 120. Wildes vs. Marshall, 117 Mass. 311. Parker M. Kenyon, 112 Mass. 264. Kennedy ot. Langdon, 123 Mass. 193. Willard vs. Stone, 13 Gray 475. ^ Smith vs. Dexter, 121 Mass. 597. 3 Parker vs. Kenyon, 112 Mass. 264. * Kennedy vs. Langdon, 123 Mass. 193. Houghton ifj. Ware, 113 Mass. 49, 50. Smith vs. Dexter, 121 Mass. 599. Willard vs. Stone, 13 Gray 475. Norris vs. Monroe, 128 Mass. 386. i8o Abatement, — Order of Pleading. ant would set up in defence a former action pending for the same cause between the same parties, or any other fact to abate the writ, which requires evidence, dehors the record, to sustain it, he must file an answer in abatement.' Order of Pleading. Sect. 157. If abatement in matter of law is sustained, the plaintiff may amend as of right; if overruled, the defendant may answer over, as matter of right ; though in either case on terms, if ordered.^ Sect. 158. An answer in abatement, as to matter of fact, presents an issue of fact to be proved by evidence, dehors the record ; as mis- nomer, non-joinder, misjoinder, of parties, a former action pending, wrong venue, and the like, and being such defects, whether in matter of law or fact, as will be deemed to be waived by demurring or answering to the merits, unless filed before, or with either a demurrer or answer to the merits, or with both, within the time re- quired by the rules of court, and in the order ' Crosby vs. Hariison, ii6 Mass. 117. Morton vs. Sweetzer, 12 Allen 135. Richmond^. Whittlesey, 2 Allen 233. Bassett vs. Howarth, 104 Mass. 225, ^ P. S. c. 167, §§ 14, 41. Time of Filing Answers iti Abatement. i8i of filing pleas at common law, if upon the same paper/ Sect. 159. The order of pleading under the practice act is the same as at common law : I. Abatement. 2. Demurrer. 3. Answer to the merits. And, if filed singly, an answer in de- murrer waives matters of abatement, and an answer to the merits waives abatement and special demurrer ; so, if a transitory action be returnable, and entered in a county where neither of the parties resides, or has a place of business, and the defendant answer to the merits, instead of an answer in abatement, the latter cannot afterwards be filed, even on mo- tion, because the defendant has submitted him- self to the jurisdiction of the court.'' Time of Filing Answers in Abatement. Sect, i 60. While the defendant was required by the Gen. Sts. of i860, c. 129, § 45 (re- pealed by St. 1870, c. 68), to make his appear- ance to an action by an affidavit that he be- lieved he had a good defence to the action on its merits, and intended to bring the same to ' O'Laiighlin vs. Bird, 128 Mass. 601. Fisher vs. Fraprie, 125 Mass. 472. Norris vs. Monroe, 128 Mass. 386. Young vs. Gilles, 113 Mass. 34. ^ Hastings w. Bolton, 1 Allen 529. Seagrave vs. Erickson, 11 Cush. 90. i82 Abatement, — General Appearance. trial, it was construed to be such a declaration tb the merits of the action, as to preclude the filing of an answer in abatement, or motion to dismiss for defects, or omission in the process afterwards.' Sect. i6i. St. 1885, c. 384, § 7, requires the defendant's appearance to be made in writ- ing, and filed by, or for, him, within ten days after entry of the action ; and the rules of both the supreme and superior court require answers in abatement and motions to dismiss, — the latter for defects apparent in the process, — to be filed within the time allowed for appearance, which is within ten days from the return day of the writ.'' General Appearance. Sect. 162. A general appearance is equiva- lent to a general imparlance at common law. It absolutely precludes the filing a plea or an- swer in abatement, and probably waives all formal defects in the declaration, liable to a special demurrer.^ ' Seagrave vs. Erickson, ii Cush. 8g. Cole z/j. Ackerman, 7 Gray 38. Whipple KJ. Rogerson, 12 Gray 347. Walpole wj. Gray, 11 Allen 150. Jaha vs. Beleg, 105 Mass. 211. ^ P. S. c. 167, § 47. 3 Pratt vs. Sanger, 4 Gray 88. Briggs vs. Humphrey, i Allen 372. Lothrop vs. Bowen, 121 Mass, 107. i Bouvier Law Diet., p. 774. Answer ovm' at Discretion of Court. i8j Sect. 163. It may seem somewhat difficult to harmonize Sects. 14-41 of the practice act, P. S. c. 167 ; but in the case of Young vs. Gilles, 1 13 Mass. 34, a plea in abatement was overruled in the superior court, and the defendant or- dered to answer by the first day of the next term. He answered in demurrer. Judge Wil- kinson ruled that he had not complied with the order, and ordered a default ; probably because Sect. 14 required an answer to the merits. But the full court reversed the decision, by vir- tue of Sect. 4 1 , inasmuch as the defendant was required to answer over, he could answer by demurrer. This may be said to be a case where the common law will govern, unless the practice act clearly changes it. IVhen Answer over at the Discretion of the Court. Sect. 164. Though Sect. 40 of the practice act, P. S. c. 167, seems to be positive that, " if an issue of fact in abatement is found against the defendant, a final judgment shall be ren- dered against him in the manner heretofore re- quired by law in case of a plea in abatement," yet this section is to be construed with the next following, Sect. 41, which provides "that the defendant may have leave to amend an answer j84 Question^ for Full Court. in abatement, or to answer over by special order of the court for good cause shown, and not otherwise." And the rule would seem to be this : If the trial of the issue in abatement in- volves the trial of the merits, or cause of the action, as to all who should be defendants and plaintiffs, then the motion for leave to answer over would, of course, be denied ; otherwise it would be allowed, for it is the spirit and tenor of the practice act that the plaintiff be allowed a trial of his case on the merits, if it has any, and that the defendant be allowed to defend, if he has a meritorious defence, on its merits, if amendments can present proper issues to be tried.' When Abatement raises a Question for the Full Court. Sect. 165. And though the P. S. c. 153, § 8, provide that " the decisions of a justice of either the supreme or superior court upon pleas in abatement, and motions to dismiss for defect of form in process, shall be final on the ques- tion raised," yet this does not prevent the parties in transitory actions from presenting ' Fisher vs. Fraprie, 125 Mass. '472. O'Loughlin vs. Bird, 128 Mass. 601. Young z'j-. Gilles, 1 13 Mass. 34. P. S. c. 167, § 41. Gould's Plead., p. 300. Boston Glass Manufacturing Co. vs. Langdon, 24 Pick. 51. Jordan vs. Siefert, 12O Mass. 25 When Appearance gives yurisdidion. i8j the question, by appeal or exceptions, as the case may be, to the full court, whether the abatement is properly filed, or the motion tq dismiss raises the question of jurisdiction ; because no appearance, plea, or answer can waive or cure the defect, if motion to dismiss is made before entry of judgment, where the court has no jurisdiction of the cause, or subject-matter of the action, as where the ad damnum exceeds the jurisdiction of the court of entry.' When Appearance gives yurisdiction. Sect. i66. The usual remedy for want of jurisdiction of the subject-matter of the suit is, by motion to dismiss, assigning the cause, as the defect is apparent from the record, and can be made at any time before judgment in transi- tory actions, for the reason that, if the case pro- ceeds to judgment, it may be reversed on a writ of error. Sect. 167. The distinction is this: when the court has jurisdiction of the subject-matter ' Hastings vs. Bolton, i Allen 531. Clark -vs. Connecticut River R.R., 6 Gray 363. Santomz'j. Ballard, 133 Mass. 464, Ashuelot Bank fj. Pearson, 14 Gray 521. McQuade vs. O'Neill, 15 Gray 52. Elder vs. Dwight Manufac- turing Co., 4 Gray 204. Gray vs. Thrasher, 104 Mass. 375. Carter vs. Wabash, St. Louis, & Pacific R.R., 137 Mass. 187. J 86 Abatement, — Venue in Local Actions. in transitory actions, but not of the parties, for want of proper service or proper venue, then abatement will lie, and the plaintiff may amend, if practicable. If a general appearance be en- tered before a plea or answer in abatement, such defect is waived ; inasmuch as the defend- ant, by his appearance, submits himself to the jurisdiction of the court. But if the court to which a transitory action is returnable has not jurisdiction of the subject-matter of the suit, then no appearance or answer will waive or cure the defect, and the action will be dismissed on motion.' Venue in Local Actions. Sect. i68. But this motion in the nature of abatement applies to transitory, and not to local, actions; as ejectment (P. S. c. 175, §3), or of forfeiture (c. 161, § 11), or for defects in high- ways, etc., where the statutes prescribe the venue where such actions shall be brought ; for if a local action is brought in a wrong venue, and Is liable to be abated, and must be abated if an answer in abatement or plea be filed be- fore a general appearance, yet the statutes pro- vide, that " when it appears on a trial that a local ' Elder vs. Dwiglit Manufacturing Co., 4 Cray 204. Hastings vs. Bolton, I Allen 529. Abatement, — Venue in Local Actions. iSj action has been brought in an erroneous venue, the court may, of its own motion, order a non- suit to be entered, unless good cause be shown why the trial should be allowed to proceed." ' Sect. 169. Such nonsuit is made at the discretion of the court, from which, of course, there is no appeal or exception. And when judgment has been rendered in a local action brought in a wrong venue, the execution in such case is to be directed to the sheriff of the proper county. Sect, 170. The reason for abating a local action brought in a wrong venue only at the discretion of the judge, when the same is on trial, is given in the commissioners' notes to the original draft of the practice act as adopted by St. 185 1, c. 233, thus: — " If the parties to a local action appear, and proceed to trial, or suffer a default, in a county different from that designated by law, it does not seem to be necessary or proper to arrest or reverse the judgment. At the same time, it is thought inexpedient to leave this matter of venue wholly to the election of parties, and, therefore, it is placed in some degree under the direction of the court." ^ ■ p. S. c. 167, § 73. P. S. c. 171, § 14. p. S. 1.. 161, § II. Morris'w. Farrington, 133 Mass. 466. Osgood lis. Lynn, 130 Mass. 335. Putnam vs. Bond, 102 Mass. 370. 2 See act as drafted by the commissioners in Hall's Mass. Practice, p. 199. i8S Abatement, — Venue in Local Actions.. Sect. 171. Sect. 24 of the P. S. c. 167, pro- vides that " no further pleading shall be re- quired after the answer, except by order of the court." This includes answers in abatement and demurrer, as well as answers to the merits. In the case of an answer in abatement, if the opposite party does not amend, it will be pre- sumed that he joins issue on it. If the abate- ment is one of fact, the party filing it must be prepared to prove the fact assigned at the hear- ing, which he claims should abate the writ. The opposite party may also demur to the answer in abatement; in which case, the demurrer admits the defect assigned, and the issue then is, whether it is sufficient to abate the writ.' ' Richmond vs. Whittlesey, ^ Allen 231. And the decision of a single judge is tinal. Interrogatories to Parties. i8g INTERROGATORIES TO PARTIES. P. S. c. J67, §§ 4g-6o. Sect. 172. This provision of the practice act is borrowed from equity law, there termed bills of discovery. The rules pertaining to that branch in equity apply to the interrogatories and answers of the parties, except as otherwise limited or modified by the practice act. This provision mainly avoids filing bills of discovery to obtain evidence from the opposite party to support or defend an action at law ; and proves a speedy and inexpensive mode of obtaining such evidence. Sect. 173. It is a cardinal rule in bills of discovery, and fully sustained by the decisions under this head of the practice act, that the interrogating party can only elicit evidence from his opponent to support his side of the issue, — that he has no right to obtain evidence in this way of facts or documents which tend IQO Interrogatories to Parties. to criminate or expose his opponent's title to property, when such title is not relevant to the issue to be tried. But he is entitled to such facts and documents if they tend to prove his side of the issue, even though they do tend to prove his opponent's case, provided his oppo- nent's answers would not tend to criminate himself nor compel him to disclose the na'mes of his witnesses, nor the manner he proposes to prove his own case (§56).' Sect. 174. In all court's where issues are required to be made by declaration and answer or plea, the court will not order interrogatories to be answered till the answer to the declara- tion is filed ; that it may be known to what issue, and to which side of it, the same are per- tinent. For it may be that the answer will ad- mit what the plaintiff seeks to prove, or that no issue will be made by the defendant. Sect. 175. In actions before trial justices, police, district, and municipal courts, whose rules do not require answers to the declaration ' Wilson vs. Webber, 2 Gray 561. Baker vs. Carpenter, 127 Mass. 226. Peck vs. Ashley, 12 Metcalf 478, Hancock vs. Franklin Ins. Co., 107 Mass. 113. 2 Story's Equity, § 1490. Story's Equity Plead., Gould's Ed., §§ 559, 563, 572, 317. Todd vs. Bishop, 136 Mass. 393. Interrogatories to Parties. igi except on motion, the plaintiff will be entitled to have his interrogatories answered, — if they tend to prove the material allegations in his declaration, — though no answer bp filed; as it is assumed that all such allegations are at issue. But even in such case, it will be more in accord- ance with the rule in bills of discovery for the plaintiff first to move that an answer to the declaration be filed ; on the other hand, if the defendant relies for his defence on matters of avoidance, he must first file an answer setting up such defence before the court will order the plaintiff to answer Interrogatories pertaining to such matters of avoidance, as it is proper that the court may see from the record what the issue is to be tried (P. S. c. 167, § 90). It follows that in the supreme and superior court, where the defence is a general denial only, the defendant can but rarely interrogate the plain- tiff for a discovery of facts to support his defence, for the reason that he has alleged in answer no fact to prove in avoidance of the plaintiff's action, nor any matter showing that the cause of action was void in its inception, which he is required to do by the practice act if he relies on such matters for his defence. /p-2 Interrogatories to Parties. Sect, i 76. Yet there are a few cases where it may be proper for the defendant to Interro- gate the plaintiff for discovery, though . the defence be a general denial, — as where plain- tiff sues for goods sold and delivered. The defendant may prove that plaintiff sold, charged, and delivered said goods to another person, as such proof would negative the selling of the same to defendant, and would meet the plain- tiff's case. The defendant may then interrogate the plaintiff as to such sale. Sect. 177. If plaintiff relies on matter in avoidance of defendant's answer, he should file a replication setting forth such matter, before filing interrogatories touching the same. It will be assumed that the defendant joins issue on the replication.' Sect, i 78. As a rule, it must clearly appear from the rebord to what issue an interrogatory relates, before the court will order it to be answered. Sect. 179. P. S. c. 167, § 54. "The party interrogated may introduce into his answer any ■ p. S. c. 167, § 24. Hobbs vs. Stone, 5 Allen iii. Interrogatories to Parties. /pj matter relevant to the issue to which the inter- rogatory relates." A distinction here must be observed between the subject-matter inquired of and the issue. The object of the interroga- tor may be to prove a single step in support or defence of an action, according as he may be plaintiff or defendant. In such case, besides answering the interrogatory concerning the step or matter inquired of, the party interrogated may add what may tend to support or defend all other steps of the same issue, — as if the plaintiff interrogate the defendant if he did not sign a certain writing purporting to be a promis- sory note, the defendant may answer, Yes ; and at the same time add, that the note was never delivered, or that it was signed for the accom- modation of the plaintiff, or under duress, etc. But if there be more than one issue in the case, the interrogated party can add matter only which relates to the same issue to which the interrogatory relates.' Sect. i8o. If a party declines answering an interrogatory for any reason, he must still an- swer, stating his reason under oath, why he ■ Baxter vs. Massasoit Ins. Co., 13 Allen 320. Churchill vs. Ricker, log Mass. 209. Williams vs. Cheney, 3 Gray 220. jg4 Interrogatories to Parties. does not answer responsively, that the court may judge whether or not the reason is a vahd one.' Sect. i8i.. It is within the discretion of the presiding judge to allow further time for filing answers to interrogatories, or order a nonsuit or default. And a motion for nonsuit or de- fault, as the case may be, may be renewed at a subsequent term.' Sect. 182. The time limited by statute for filing such answers is ten days ; and Sunday is not excluded.' Sect. 183. The interrogated party must answer, though he lives out of the Common- wealth ; and it is his duty to take out a com- mission by his attorney to take his answers ; or that his answers be sworn to before a commis- sioner for the Commonwealth of Massachusetts, or other proper magistrate.* Sect. 184. But, having answered, a non- suit or default cannot be properly entered for ^ Hobbs vs. Stone, 5 Allen tio. 2 Stern vs. Filene, 14 Allen 9. ' 3 Kobbins vs. Holman, 11 Ciish. 26. 4 Townsend vs. Gibbs, 11 Gush. 158. Sheldon vs. Kendall, ri Cush. 74. Harding vs. Morrill, 136 Mass. 291. Harding vs. Noyes, 125 Mass. 572. Interrogatories to Parties. ig§ defective answer till a refusal by the interrogated party to amend by order of court, on a written motion pointing out the deficiency ; which mo- tion should be filed, and become a part of the record. One answer may be made to several interrogatories, if responsive. The interrogator cannot, as of right, without a specific order of court, require the other party to produce all his books and papers in evidence.' Sect. 185. Judging from the decisions of the full court, it seems that it scrupulously gyards the right to interrogatories and answers in the preparation of cases for trial.^ Sect. 186. Interrogatories and answers in one suit may be used in another, so far as they contain admissions of facts material and relew ant to the issue.^ Supplemental interroga- tories can be filed only on motion.'' Sect. 187. If part of the interrogatories and answers are read at trial by one party, the rest ' Fells vs Raymond, 139 Mass. 100. Amherst & Belchertown R.R. Co. vs. Watson, 8 Gray 525. ' Hubbard vs. Hubbard, 6 Gray 362. Baker vs. Carpenter, 127 Mass. 226. 3 Williams vs. Cheney, 3 Gray 220. * Hancock vs. Franklin Ins. Co., 107 Mass. 116. ig6 Interi'Ogatories to Parties. may be read by the other.' Or if filed in the lower court and there waived, others may be filed in the superior court in the same case on appeal, nor will the party be estopped fi"om doing so by putting the case on the trial list.'' Sect. i88. Nor will the affidavit of the attorney, which the statute requires to be ap- pended to interrogatories, be conclusive of their materiality.' Sect. 189. A party is not obliged to answer privileged communications made by him.* > Sect. 190. The practice act (§ 51), re- quires answers to interrogatories to be signed and sworn to by the party himself, and to be filed within ten days after notice. Sect. 191. Notice to the adverse party of filing interrogatories should be in writing and delivered personally to him, or to his attorney, or sent through the mail, postpaid, and proved, if need be, by an affidavit according to Rule 22 of the superior court. ' Churchill vs. Rice, 109 Mass. 209. ' Kennedy vs. Gooding, 7 Gray 417. 3 Foss vs. Nutting, 14 Gray 484. "■ Worthington vs. Scribner, 109 Mass. 487. Interrogatories to Parties. ig'/ Sect. 192. Interrogatories to an' officer of a corporation must be confined to his official acts, or those of the corporation, or the record of its acts, and not to his private and individual acts for which he may be called as a witness.' Sect. 193. If the corporation is not ad- mitted in the answer, it must first be proved such, before any one can be interrogated as its officer, by interrogatories.'' Sect. 194. Interrogatories to, and answers by, one of several defendants are evidence for plaintiff.^ ^ Hancock vs. Franklin Ins. Co., 107 Mass. 115. ^ Gott vs, Adams Exp. Co., 100 Mass. 320. 3 Stetson vs. Walcott, 15 Gray 545. INDEX. Former Practice in Massachusetts. Section. Pleadings styled answers i Special pleas abolished by St. 1836, c. 273; special plead- ing prior, and its different pleas 3 Special plea for statute of limitations, by that system . 4 Special plea and general issue defined ... 5 The issue in special pleading on a plea in bar ... 7 A special plea in bar that amounted to a general issue, demurrable 8 St. 1836, c. 273 given, that abolished special ; and rule for specification of discharge and avoidance ... 10 Such specification not necessary, if the cause of action was void in its inception 11 Special pleading presented a different issue on a plea in bar from the general issue and specification . 12, 13 History of the practice act . 14-26 Answers to the Merits. Objects gained by the practice act 27 Statute rules for answers 28 Grounds of defence to be stated concisely, not inferentially, 29 The terms " Facts," " Matters," and " Grounds of De- fence " 30, 31 General Denial. Usual form 32 When to be used, and exceptions .... 33-41 199 200 Index. Special Answers to the Merits. Section Rule for . . . 4z-43 Examples of bad pleading 44, 45, 46 When admit allegations 47 Grounds of defence in actions of contract _ . . 48, 49 What answers may be filed together, and when ... 50 What tender admits 51 If defendant move a nonsuit, he must rest his case at. the end of plaintiff's testimony; if overruled, no excep- tion lies 52 Immaterial Allegations need no Answer. Demurrers and Exceptions in Action at Law. To what demurrers apply. Time of filing ... 53, 54 General and special at common law, and how each is treated . • 55. S6, 57 General and special retained under the practice adt, and why 58 Distinction between general and special demurrers . . 60 Special Demurrers. Except to matters of form in the declaration, such objec- tions waved without a demurrer . . . .62, 63, 64 Special demurrers must abide the ruling of a single judge, 65 When the full court say the objection could be made by demurrer only, the defect is a formal one ... 65 Not subject to judgment, consequently no appeal . . 66 Proceedings, when overruled or sustained . ... 67 General Demurrers. No appeal from a verdict or finding . . .68, 69, 71, 72 Review, if execution is not satisfied in whole or in part . 70 Distinction between a ruling and a judgment ... 73 An appeal can be taken only from a judgment ... 74 Distinction between appeal and exceptions . . 75, 76 Index. 201 Section Prior to the St. 1859,0. 196, exceptions or an appeal on de- murrer carried the whole case tp the supreme judicial court 11,^^1 By special pleading, one issue only, except by leave of court. If the issue belaw, judgment was rendered on the decision 78, 136 By the practice act, both law and fact may be settled . 80 But on final judgment in an action 81 What a general demurrer admits. Order of pleading 82, 83 Amendments when allowed. When they let in subsequent attachments . 84, 85 No motion or amendment allowed in full court . . 86, 87 Objection to evidence an account. Variance ... 88 No appeal on a demurrer to abatement .... 89 All the counts must be answered 90 Trial, if an issue of fact be left open, before an issue of law will be considered 91 When defendant may except : departure from special pleading 92 Instead of a general demurrer, defendant may object that declaration is insufficient . , 94 Last clause P. S. c. 167, § 67, applies to single judge . 95 General demurrers must state the particular defects . . 96 Exception 97, 98 Joining in demurrer 99 A demurrer that has been overruled by one judge, may be sustained by another judge at trial, when . . .100 Ruling, on matters within the discretion of a judge . . loi Frivolous exceptions. Double costs, extra interest . . 102 Demurrer will not lie to the process, motion, or abatement, when 103 Declarations on bills and notes and indorsers . . . 104 Agreed Statement of facts 105 " Continued «/jz" 106 Though the writ may summon in contract, count in tort may be added 107 202 Index. Section General demurrer or answer to the merits waives formal defects ro8 A report of a case may provide for a greater or less verdict according as the question of law shall be de- cided 109, no Exception to the entire charge of the judge, irregular, in, U2 Full court determines questions of law . 113, 1 14, n 5, 117 A report of a case by the trial judge, presents questions of law 116, 119 Exception as to agreed facts 118 Where judgment is to be rendered 120 Commonwealth court established. Held in Boston . .121 When questions of law arising in other counties may be heard in it 122 What counties it embraces . . . . . . 123,125 Account of court proceedings in " Boston Advertiser " and " Worcester Transcript " regarding the law of St. 1859, c. 196 Note to 125 Entry of appeals and exceptions .... 126-134 Settling the law and fact in cases tends to discourage litigation 137 History of the courts of IVIassachusetts . . .. 138-145 Reasons given why appeals are authorized from judgment on demurrer from supreme judicial court at nisiprius to the full court 146 Proof of exceptions , . . 149, 150 Abatement. What the process comprises 153 Two kinds, — one in law, the other in fact. Both abide the decision of a single judge 154 Abatement in law defined. Motion to dismiss lies in com- mon: proceedings if sustained or overruled 155) 156, 157 Abatement of fact 158 Order of answers 159, 162 Appearance when to be filed 161 Index. 20J Section Remarks on sections 14 and 41 163 Discretionary witli court to allow the defendant to answer after abatement of fact has been tried . . . 164 The full court will entertain the question whether the answer in abatement has been properly filed . .165 Motion to dismiss, the usual remedy for want of juris- diction 166, 167 Does not apply to local actions, such as ejectment . 168, i6g What a demurrer to an answer in abatement puts in issue, 171 Interrogatories. (P. S. c. 167, §§ 49-60.) Cardinal rule 173 When interrogatories are to be filed 174 In actions before trial justices 175 Where the defence is a general denial . . . , 1 76 Where plaintiff relies on matter of avoidance . . . 1 77 As a rule the issue should appear from the record . .178 What the interrogated party may introduce besides answer- ing the question 1 79 If one objects to answering, he must state the objection . 180 Discretion to allow further time to answer . . . 181 Statute time for answer ten days, Sunday not excluded . 182 Must answer, though out of Commonwealth . . .183 Having answered, the party is not to be nonsuited for not answering fully, till an order to answer further . 184 Interrogatories and answers may be used in other suits . 186 If a party filing read a part, the remainder may be read by ' the opposite party. Others filed, when . . . 187 Must be signed by the party igo Notice to opposite party 191 Interrogatories to an officer of a corporation , . . 192 When corporation must be proved. Answer by one of defendants 193, 194