2155 M3^ (JnrnpU ICaui ^rt|onl ICibrary 3 1924 024 686 242 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924024686242 PEACTICE AND PLEADING IN CIYIL ACTIONS AND PROCEEDINGS AT LAW IN ALL THE COURTS MASSACHUSETTS. WITH A CHAPTER ON EQUITY JURISDICTION ANt) PRACTICE UNDER THE STATUTE OF 1883, CHAPTER 223. By JOSEPH MASON, OF THE WOECESTBR BAK. BOSTON: LITTLE, BROWN, AND COMPANY, 1883. Entered according to Act of Cfongrcss, in the yesa 1883, by Joseph Mason, In the Office'of the Librarian of Congress, at Washington. TIntterbitt Press: JoHH Wilson ahd Son, Cambridgx. PREFACE. The recent revision of the Statutes of Massachusetts created a ileed of a new work on practice in civil ac- tions in the courts of the State. In the following pages I have endeavored to supply that want. A work on practice must necessarily treat of a great number of subjects, and consequently, in a treatise limited to a single volume, cannot be exhaustive upon all. The subjects considered in this work, though numerous, are such as strictly belong to a work on practice, and are treated in it with special reference to their application to practice in the courts. No pains have been spared to bring the matter within as small a compass as was consistent with the object and purpose of the work. Consequently I have not unnecessarily encumbered it with common forms of process in general use, but have included in it only such forms of process and procedure as may not otherwise be easily attainable by members of the bar. I have endeavored to embody in the work the rules of practice in our courts, as contained in the statutes of the State and in the rules and decisions of the courts at the present time, not omitting such matters of un- written law in relation to practice as may be useful to the young practitioner. I have included in it several chapters on subjects not before treated of in any previous work on Massachu- setts practice. Among these are, the chapters on Real Actions, and on practice in the Probate Courts and IV PREFACE. Courts of Insolvency, and in cases before SheriflFs' Juries and County Commissioners. In the chapter on Evidence, I have endeavored to describe the practice relative to the preparation of evi- dence and the use of it in the course of a trial, and have stated a few ele^ientary principles of the lnw of evidence, and some of the rules as to interrogating witnesses. The several chapters on Pleading are written with particular reference to their relation to the scope and object of this work. A work on practice which did not treat at all of pleading would be deemed very incomplete. The Statute of 1883, chapter 223, giving jurisdiction in equity to the Superior Court and modifying equity practice, was enacted after this work was nearly com- pleted. I have therefore placed near the end of the work a chapter on practice under that act. In the preparation of this work, I have carefully examined the statutes, reports of decisions, and rules of courts, and from these have selected for my trea- tise such matters as appear to me to come within its general scope and purpose. Of course, much is omitted which might be given in a more extended work. I am not insensible to its im- perfections. That it will be free from errors is more than I have reason to expect. I hope, however, that it will prove to be what I have designed to make it, — a convenient and useful handbook for the bar. JOSEPH MASON. Worcester, October 1, 1883. CONTENTS. PAGE Index to Cases cited xi Table of Reports xxvii CHAPTER I. Practice in General 3 CHAPTER II. Division of Actions 7 CHAPTER III. Original Writs 10 CHAPTER rV. Trustee Process 23 CHAPTER V. Review 36 CHAPTER VI. Scire Facias 44 CHAPTER VII. Replevin 49 CHAPTER VIII. Personal Replevin 56 VI CONTENTS. CPIAPTER IX. FAOX Habeas Corpus 58 CHAPTER X. Audita Querela 61 CHAPTER XL Writ of Error 63 CHAPTER XH. Real Actions 76 CHAPTER XHI. Summary Process for Recovery of Lands 88 CHAPTER XIV. Indorsement of Writs 96 CHAPTER XV. Service and Return of Writs 101 CHAPTER XVI. Attachment of Property Ill CHAPTER XVII. Arrest on Mesne Process and Execution 129 CHAPTER XVIIL Bail in Civil Actions 156 CHAPTER XEX. Attorneys 170 CHAPTER XX. Judicial Writs 182 CONTENTS. VU CHAPTER XXI. FAaB CoTJETS OF Massachusetts 203 Part First : — 1. Supreme Judicial Court. 2. Superior Court. 3. Municipal, Police, and District Courts, and Trial Justices. CHAPTER XXII. Courts of Massachusetts 218 Part Second: — 1. Probate Courts. 2. Courts of Insolvency. 3. Board of County Commissioners. CHAPTER XXIII. Courts of the United States 241 CHAPTER XXIV. Pleading — Part First 247 CHAPTER XXV. Pleading — Part Second 270 CHAPTER XXVI. Pleading — Part Third 285 ' CHAPTER XXVII. Pleading — Part Fourth 314 CHAPTER XXVIII. Routine of Business in Courts 332 CHAPTER XXIX. The Jury. Trial and Verdict 352 CHAPTER XXX. New Trial 373 VIU CONTENTS. CHAPTER XXXI. FACE Appeals 391 CHAPTER XXXII. Questions of Law 398 CHAPTER XXXIII. Partition of Real Estate 410 CHAPTER XXXIV. Liens and Process to enforce them 419 CHAPTER XXXV. Divorce 426 CHAPTER XXXVI. Bastardy Process 434 CHAPTER XXXVIL Auditors and Assessors 440 CHAPTER XXXVIII. Arbitration 448 CHAPTER XXXIX. Evidence 458 CHAPTER XL. Depositions 475 CHAPTER XLL Venue 490 CHAPTER XLII. Petition for the Settlement of Titles 492 CONTENTS. IX CHAPTER XLIII. PAGE Cases triable by Sheriff's Jury 497 CHAPTER XLIV. Damages 511 CHAPTER XLV. Judgments 518 CHAPTER XLVI. Levy and Set-off of Executions 525 CHAPTER XLVn. Tender 541 CHAPTER XLVin. Equity Jurisdiction and Practice under Statute op 1883, Chapter 223 552 CHAPTER XLIX. Costs 561 CHAPTER L. Forms 592 Index 611 INDEX TO CASES CITED. A. PAGE Abbot V. Sebor 382 Abbott V Dexter 450, 451 V. Tucker 153 V. Wiley 563 Adams v. Brown 135 V. Freeman 150 V. Hopkins 17B V. Manning 304-308 V. Robinson 172, 392 V. Scott 33 V. Tyler 24 V. Wheeler 363 V. Wiscasset Bank 102 Adlington v. Adlington 298 Ahitbol V. Beniditto 154 Akers v. Demond 475, 485 Aldrich v. Boston & Worcester R. R. 403 V. Springfield, &c. 389 Allen V. Aldrich 376 V. Allen ■ 432 V. Babcock 485 a. Hawks 444 V. Mann 251 V. Saw telle 320 V. Taft 531 V. Thayer 532 Almy V. Wolcott " 105, 132 Alton V. Gilmanton 177 Amadon v. Mann 153 American R. R. Frog Co. o. Haven 192 Ames V. Bates 309 V. Stevens 409, 581 Amherst v. Hadley 353, 356, 379, 387 Amidown v. Peek 81 Ammidown v. Wheelock 33 Amory v. Francis 229 Anderson v. Edwards 146 V. George 376 Andrews v. Bosworth * 71 V. Ludlow 30 Anonymous 150, 175, 176, 282 Appleton V. Bancroft 125 Arding v. Flower 462 Arms V. Ashley 384 V. Lyman 227 Armstrong v. Treasurer PAGE 243 Ashley v. Root 402 Ashmun v. Williams 120 Asp u. Warren 453 Atkins V. Chilson 93 V. Sawyer 292, 567 Atkinson v. Jameson 149 150 Atlantic Insurance Co. v. Fitzpat- rick 485 Atlantic National Bank v. Harris 320 Attorney-General i>. Salem 195 Atwood V. Atwood 76 V. Cobb 327 Auld V. Hepburn 367 Austin V. Lamar Ins. Co. 289 V. Trustees, &c. 177 V. Walsh 255 Ayers v. Hewit 53 Aylwin v. Ulmer 383 B. Babcock v. Thompson Bacon v. Callender V. Crandon V. Mclntire V. Ward Badger v. Phinney Bagley v. White Bailey i: Chesley Baily, Ex parte Bakeman v. Porter Baker ;'. Atlas Bank V. Baker V. Blood V. Cook V. Jewell V. Sanderson V. Warren V. Willis Balch V. Shaw Baldwin v. Baldwin V. Jackson Ball V. Claflin V. Gilbert Bank of Brighton v. Smith 291, 298, 20, 49, 52, 54, 120, 107, 291, 302 370 457 324 69 251 121 437 384 546 315 533 230 179 255 512 121 117 336 431 121 292 572 521 Xll INDEX TO CASES CITED. Bank of Commerce v. Huntington 24 of United States v. Banli of Georgia 545 Barber v. Floyd 134, 135 Barclay v. Faber 150 Bardwell v. Conway Ins. Co. 390 Barker v. Taber 21 V. Valentine 306 Barnacoat w. Gunpowder 401 Barnard v. Bartholomew 322, 515, 516 V. Fislier 339 17. Whiting 291, 292 Barnes v. Hurd 291, 372 Barrett v. Barrett 309 Barry v. Bennett 385, 387 Bartlett v. Farrington 617 Batclielder v. Uatchelder 273 Bates V. Graves 381 V. Kay 507 Baxter v. Little 305 Baylies v. Davies 382 Beal V. LangstafE 181 Bean v. Elton 290 V. Farnum 454 V. Parker 164,167,293 V. Qnimby 478 Beavin v, Gove 82 Beers v. Root 386 Behaly v. Hatch 543 Belgard v. Morse 59 Bellew V. Aylmer 74 Bemis v. Charles 473 V. Faxon 392, 395 V. Leonard 123 Bender o. Sampson 265 Benedict v. Morse 90 Bennett v. Clemence 404 V. Wliitney 395 Bent V. Ayers 436 V. (;obb 327 Benthal v. Hildreth 272 Bergin «. Hayward 538 Berkshire Woollen Mills v . Day 453 Berry v. Osborn 274 Beverly's Case 171 Bigelow V. Johnson 165, 167 o. Libby 316 ». Newell 386 Bisliop of Winchester's Case 602 Blackington i;. Johnson 581 Blackler v. Boott 311 Blackley v. Sheldon 369 Blake v. Lawrence 300 Blanohard v. Blanchard 822 V. Colburn 382 V. Walker 212, 333 V. Wild 66,67 Blatch V. Archer 152, 1.53 Bliss V. Whiting 120 Blodgett V. Prince 454 Blood V. Harringlon 289 PASZ BloQd V. Kemp 7 V. Kobinson 456 Boardman v. Bpooner 327 Bodurtha v. Goodrich 70 Bodwell V. Osgood 3«0 Bond 11. Bond 529 ,530 V. Fitzpatrick 305 V. Ward 105, 111 113 ,120 Booden v. Ellis 375 Borden v. Borden 356 , 379 B. Brown 36 Borrowscale v. Bosworth 376 Boston V. Tileson 529 Boston Manuf'g Co. o. Burgin 495 Boston Water Power Co. v. Gray 455 Bosworth V. Pomeroy 524 Bours V. Tuckerman 462 Bowditch V. Gardner 495 Bowdoin v. Jordan 181 Bowen v. Reed 438 Bowker v. Palmer 391 Bowles V. Palmer 404 Boyden v. Moore 382 Boyle V. Boyle 90 Boylston v. Carver 532 V. Greene 173 Boynton v. Dyer 228 Bradford v. French 98 V. Stevens 466 Bradley v. Bassett 532 V. Eea 517 Bradstreet v. Clark 92 Bragg V. Boston & Albany E. R. Co. 385 Bramhall v. Seavy 153 Brantingham v. Fay 383 Braynard v. Fisher 304 Brewer «. Boston, Clinton, & Fitch- burg R. R. Co. 238 V. Holmes 37 V. New Gloucester 101 V. Stevens 80 V. Turner • 71 V. Tyringham 615 Brickett v. Wallace 269, 641, 543,549 Bridge v. Eggleston 369 u. Ford 46 V. Wyman 121 Briggs V. Strange 120 Brigham v. Dole 561 V. Este 132,334 Bright v. Eynon 376, 381 Brightman v. Eddy 384 Brooke o. White 380 Brooks V. Weeks 363 Broome v. Beardsley 263 Brounsall, Ex parte 181 Brown i'. Allen 160 V. Bellows 363 V. Bridge 246 V. Bulkley 415 INDEX TO CASES CITED. Xlll PAGE PAGE Brown v. Chase 68 Carlisle v. Weston 566 V. Getiiliell 131 , 2U2 Carpenter v. Spencer 449 V. Gilman 403 Carrington v. Roots 328 V. Hodgson 298 V. Smith 124 V. Kendall 87 Carrique v. Sidebottom 31 V. Matthews 495 Carruth ;;. Grassie 115 V. Seymour 571 Carter r. Carter 430 V. Shiimons 545 Cary v. Bancroft 812 V. Stearns 5U7 V. Daniels 666 V. Wait 114 Ciissidy V. Farrell 261 V. Wallace 167 Caswell V. Keith 116 u. Washington 108 529, 632 Caverly v. Bushee 570 V. Watts 298 »i. MuOwen 374 Browne v. Hale 400 Chace V. Trafford 822 Bryant v. Allen 227 Cliaitwick D. U|iton 96 V. Commonwealth Ins Co. 481 Chaffee v. Jones 130 Bucker v. I'alsgrave 283 Champion v. Noyes 166 Buckfield v. Gorhara 66, 5B7 Chandler v. Brainard 478 Buckingham v. Billings 115 V. Smith 51 Buckland v. Conway 172, 453 Chapel V. White 436 Bull V. Clarke 185 Chapin v. Lapliara 465 Bullard v. Brackett '67 Chapman v. Coffin 368 Bullock V. Dean 320 V. Haw 178 v. Hay ward 86 Chappell V. Hunt 107 581 u. Horsford 377 Charles v. Monson & Brimfield Bunker v. Shed 20 251 Manuf g Co. 606 Burdick v. Green 252 V Porter 506 Burgess v. Bujjhee 802 Charlwood v. Berridge 178 Burgliardt v. Owen 449 451 Chase v. Allen 52 Burke v. Miller 265 u. Breed 475 V. Savage 401 V. Chase 148 ,432 Burlingame v. Bell 29 V. Ingalls 1?S Burnham v. Tucker 309 Cheetham v. Lewis 252 Burr, Ex parte 181 Cheever v. Perley 324 V. Atwood 175 Chencry v. Davis 230 Burrill v. Phillips 378 V. Goodrich 251 Burrough v. Skinner 277 Cheshire National Bank i: Jewett 123 Burroughs v. Purple 432 Chikls V. Barrows 109 Burstall v. Horner 279 (■hurchill v. Perkins 159 Burt V. Allen 483 Cilley V. Bartlett 376 V. Merchants' Ins. Co. 401 City National Bank v. Williams 1.34 Busfield V. Wheeler 425 Ciaflin V. Hawes 283 Bussing V. Rice 63 Claggage v. Swan 380 Butler V. Benson 465 Claggett I!. Simes 274 V. Fessenden 104 Clap i:. Clap 66 t/. Kimball 252 V. Guild Clapp V. Thomas Clark's Case 61 118 443 c. Clark V. Binney V. Bremer 380 33 Cady V. Eggleston 51 I'. Fletcher 446 Cain V. Ingham 855 V. Goodwin 626 Caldwell i-. Jackson 176 V. Grant 130 Campbell v. Brown 524 u. Lamb 68, 291 370 V. Howard 394 395 V Munyan 531 V. Upton 449 454 V. Paine 44 V. Webster 629 V. Reed 564 Cape Ann Bank v. Burns 262 V. Swift 318 Capron v. Van Noorden 65 V. Whilaker 880 Carey v. Gnillow 517 Clarke v. May 849 Carley v. Vance 543 Clatur V. Donegan 147 XIV INDEX TO CASES CITED. Clement v. Sargent 133 Cleveland v. Clap 311 Cochrane v. Boston 39b Coddington v, Goddard 327 Cody V. Adams 132 154 CofEall V. Hentley 154 Coffin V. Abbot 38 V. Jones 479 W.Ray 127 V. Vincent 465 Cohens v. Virginia 242 Colburn v. Downes 159 Cole V. Ackerman 272 V. Eastham 575 V. Hindson 154 V. Trull 515 CoUamore v. Fernald 147 Collet V. Thompson 297 Collins V. Smith 32 Colson V, Jelby 300 Comes V. Lampson 328 Commonwealth v. Athern 195 V. Barry 365 t. Blue Hill Turn- pike Corporation 195 V. Brickett 164 V. Brigham 36B V. Burke 465 V. Cochituate Bank 315 V. Donovan 340 V. Drew 380 V. Ellis 66 V. Field 152, 153 V. Fowler 198 v.Gee 353 V. Gorham 459 r. Green 386 V. Messinger 395 u. New Milfprd 195 V. Roby 379 V. Smith 484 V. Snelling 297 V. Sumner 11 V. Taylor 193 Conant v. Kendall 228 Conn. River R. R. Co. u. Clapp 504 0. Franklin Commis. 603 Conrad v. Massasoit Ins. Co. 456 Cook V. Cdx 612 V. Holbrook 29 V. Holmes 582 V. Mills 305 ,306 Cooke V. Berry 45 V. Gibbs 12, 15. 18 Coolidge V. Gary 165, 173 ,339 <>■ Inglee 67 Cooper V. Ginger 71 Copeland v. Crane 444 Corbett v. Fitchburg R. R. Co. 28 u. Greenlaw 442 Corliss Steam Engine Co. v. Schumacher 319 Cornwall v. Gould 291, 512 Coster V. Merest 377, 380 Countess of Rutland's Case 152 Cowdrey v. Sheldon 529, 530 Cowles V. Coe 387 Cowley V. Train 276 Cox V. Brahi 280 V. Parry 277, 278 V. Robinson 283 Crafts V. Sykea 289 Cragin v. Warfield 289 Craige v. Mellen 340 Crandall v. Blaid 98, 567 Crary v. Turner 172 Crawford v. Satchwell 154 Creighton v. Proctor 77 Crocker v. Hutchinson 175 Crosby v. Olorensliaw 283 Cross V. Kaye 286 Crossen v. Hutchinson 73 Crossley, Attorney 181 Crouclier v. Collins 602 Crowther v. Ramsbottom 152 Croxford v. Mass. Cotton Mills 572 Crygier v. Long 252 Cuming v. Sibley 73 Cummings v. Pruden 74 Currier v. Davis 514 0. Jordan ~ 541 V. Poor 135 Curry v. Porter 401 Curtis V. Jackson 381 Cutler V. Rice 375 Cutter V. Evans 128 V. Howe 123, 587 D. Daggett V. Daggett 317 Dana v. Carr 134 V. Tucker 370 Danforth v. Woodward 115 Daniels v. Hayward 117 Danielson v. Andrews 289 Danker w. Atwood 161 Darling v, Blnekstone Mfg. Co. 506 Davenport v. Burke 50 Davidson v. Henop 357 V. Slocomb 337 Davies v. Edwards 299 Dafis V. Allen 484 V. Bean 517 V. Brigham 507 V. Hastings 568 V. Henry 456 V. Marston 2! V. Maynard 5.^2 V. Parker 491 INDEX TO CASES CITED. XV PAGE Davis V. Rowell 327 V. Stone 113, 122 V, Travis 260 V. Wiiithead 99, 100 Davlin v. Stone 114, 118 Dawes v. Gooch 667 Day V. Aldermen, &c. 188 V. Bower 299 V. Cooley 364 V. Gallup 243 V. Lamb 251 Dean v. Emerson 446 V. Williams 516 Dearborn v. Dearborn 172, 175 V. Preston 418 Dedekam v. Vose 684 Dennett «. Dennett 386 Dennis v. Maxfield 401 Denny v. Eddy 824 V. Lincoln 127 V. Ward 293 V. Warren 121 Denton v. Noyes 175 Dewey v. Bulkley 495 Dike V. Story 133 Dillingham v. Snow 381 Dingnian v. Myers 61 Dion V. Powers 210 Dodge V. Perkins 515 Doherty v. Lincoln 400 Donn|ll V. Manson 128 Dooley v. Wolcott 107, 532 Dorr V. Fenno 380 Dotey V. White 387 Douglass V. Tonsey 378 Dovey v. Hobson 357, 379 Dowd V. Stimpson 193 Downer v. Rowell 465 Downes v. Turner 281 Downing v. Porter 227 Downs V. Hawley 274 Doyle V. Dixon 381 Drowne v. Stimpson 66 Drury v. Vannevar 317 Dryden v. Dryden 67 Ducker u. Wood 380 Duffee V. Call 566 Duncan v. Hill 800 V. Lyon 886 Dunham v. Baxter 380, 386 V. Dunham 226 Dunklee v, Locke 536 Dunning v. Ovien 21 Duperoy v. Johnson 520 Dnrant v. Burt 366 Durell V. Merrill 69 V. Mosher 355 Duryee v. Denniston 386 Dwight V. Holbrook 274 t. Springfield 193 E. PAGE Eager v. Taylor 116 ,117 Eastman v. Eveleth 125 V. Wright 178 Eaton V. Melius 516 Eddowes v. Hopkins Edmonson v. Machell 612 382 Edwards v. Ela 230 Elder v. Bemis 570 V. Dwight Man'f g Co. 566 Ellicott V. Coffin 452 Elliott!!. Callow 279 V. Willis 134 Emerson v. Patch 467 V. Upton 292, 293 V. Wad man 449 V. White 643 544 Emerton v. Andrews 383 Ensign v. Bartholomew 623 Esson V. Tarbell 54 Estes V. Tower 252 Esty V. Currier 576 Etherick v. Cooper 158 Evans v. Reed 91 V. Stevens 286 Eveleth v. Harman 377 Everett v. Cliarlestown 173 F. Fabyan v. Russell Fail V. PIckford Fair v. Manhattan Ins. Co. 584 281 443, 444, 445 Fairchild v. Adams 453 Pales V. Stone 667 Farmer v. Storer 461, 682 Farraington River Water Power Co. V. Co. Commis. Farnam v. Brooks Farrar v. Parker Farrington v. Edgerly 193 320 226 121 Farrow v. Commonwealth Ins. Co. 479 Farwell v. Mather 327 Faulkner w. Bailey 322, 323 V Jones 317 Fay V. Bond 452 V. Bradley 516 V. Sears 48 V. Wenzell 336 Fay's Case 193 Fenely v. Mahoney 99 Ferrin v. Kenney 87 , Fessenden v. Nickerson 561, 589 Field V. First Mass. Turnpike Co. 68 V. Gibbs 835 V. Hawley 78 Fifty Associates v. Howland 92 Filley v. Phelps 113, 539 First Parish of Sutton ». Cole 101 XVI INDEX TO CASES CITED. PAOE Fisher v. Johnson 50g ,5i8 ti. Prince 282 Fisk V. Gray m ,447 Fitch V. Loveland 153 V. Stevens 665 Fleming v. Gilbert 883 V. Laughton 620 Fletcher v. Bartlett 146 V. Carey 81 Flint V. Hubbard 443 Fonsec v. Magnay 882 Foot V. Knowles 289 Foote V. Blanchard 515 Force v. Martin 364 Ford I'. Ford 431 Foss V. Hildreth 82 V. Nutting 469 ,470 Foster v. Durant 455 V. Jones 340 V. Plummer 40 Fowler v. Bigelovv 449 V. County Comm'rs 354 Francis v. Howard 132, 139 Franklin Mining Co. v. Pratt 451 French v. Hanchett 370 Fullara V. Valentine 293 Fuller V. Little 646 V. Storer 37 G. Gage V. Graffam 101, 271 Gale V. Blaikie 422 V. Boyle 168 V. Ward 120 Gallary v. Holland 435, 438, 491 Galligan v. Fan nan 304 Gallup V. Gallup 321 Gardiner v. Corson 311 Gardner v. Barnes 111 V. Gardner 297 V. Hazelton 327 V. Hosmer 107 V. Mitchell 386 V. Turner 357 V. Webber 20, 251 Gass V. Smith 128 Gassett v. Grout 30 Gates V. Gates 49 Gavett V. Manchester and Law- rence R. R. Co. 366 Genner v. Sparks 149, 153 George v. Joy 465 V. Reed 290, 567 Gerrish v. Edson 162 V. Morss 67 V. Train 870 Gerry ». Gerry 572 Getchell v. Clark 179 ». Moran 422 Gibbs V. Co. Commissioners 193 u. Loomis 130 Gibson v. Jenney 114 Gilbert v. Fowler 421 V. Nantucket Bank 96 V. Williams 174, 175 Gilbreth v. Brown 392 Gilman v. Haverhill 500, 501 Gilmore v. Edmunds 135 Gist V. Mason 385 Glaister v. Hewer 178 Gleason v. Dodd 174, 175 Glezen v. Rood 160 Glidden v. Smith 114 Glover V. Heath 72 Goddard v. Austin 106 V. ChafEee 117 V. Smithett 197 Godfrey v. Munyan 134 Goff V. Rehoboth 615 Gogin V. Walsh 422 Golden v. Blaskopf 621 Goldie V. Shuttlesworth 267 Goodrich v. James 298 V. Yale 521 Goodridge v. Ross 70 Goodwin v. Appleton 370 ». Cunningham 309,311 17. Gibbons 382 Gordon v. Jeimey 121 Gore V. Brazier 528 Gorham v. Stearns 405 Gould V. Barnard 52 V. Gould 428 V. White 387 Grand Junction R. B. Co. v. Co. Commissioners 238 Grant v. Astle 512 W.Barry 435 V. Gal way 82 V. Shaw 29 Graves v. Eades 179 Gray v. Moore 40 Green v. Fox 419 f - Gould 359 Greene v. Hatch 308 Green ough v. Rolfe 453 Greenwood pi. Bradford 841, 404, 522 V. Lake Shore R. R. Co. 335 405 15 178 277 252 317 377, 380 176 70, 172, 175 376 664 278, 280 Gregory v. Pierce Grey v. Jones Griffin V. Eyles GriflBths v. Williams Grimes w. Eriggs Grinnell v. Baxter V. Pliillips Griswold v. Lawrence Grosvenor v. Danforth Grovenor v. Fenwick Guild V. Richardson Gutteridge v. Smith INDEX TO CASES CITED. XVll H. PAGE Haekett v. Buck 528 Hagar v. Weston 377 V. Wiswall 415 Haines v. Corliss 271, 564 V. Hanralian 400 Hall V. Carter 162 V. Crocker 535 V. Hoxie 537, 539 V. Huse 382 V. Peck 251 V. Eoclie 149 V. Wolcott 67 Hallett V. East India Co. 281 Hallowell & Augusta Bank ». Howard 311 Halsey i;. Watson 386 Hamilton v. Eller 550 K. Ingraham 284 V. Lyman 183 Hammatt v. Bassett 632 Hammond v. Wadhams 381, 38B Hancock v.- Colyer 29 V. Franklin Ins. Co. 470 V. Haywood 372, 512 Handy v. Handy 617 Hanrahan v. O'Reilly 120 Harden v. Harden 454 Harding v. Coburn 113 0. Downes 563 V. Noyes 471 Harrington v. Bogue 163 V. Conolly 84, 85 V. Dennie 167, 169 V. Harrington 297, 431 V. Stratton 517 Hart t'. Huckins 68 V. Waterliouse 176 Hartwell v. Hemenway 97 Haskell v. Varina 527 V. Whitney 344 Hastings v. Baldwin 28 Hatch V. Greene 311 Hathaway v. Eoach 584 V. Russell 47, 308, 310 Haven v. Foster 515 V. Snow 293 Haverhill Loan & Trust Associ- ation V. Cronin 229 Hawes v. Humphrey 474 Hawkins r. Graham 671 Hawley v. Soper 251 Hayden v. Einney 537 Hayes v. Collins 38, 42, 43 Haynes v, Boardman 326 V. Nice 329 Hazard v. Little 411 Heacock v. Stoddard 478 Heard v. Pierce 348, 349 Hearsey v. Bradbury 20, 289 PAGE Heath v. Tenny 451 Ileebner v. Eagle Ins. Co. 446 Heims v. Ring 563 Helbut V. Held 65 Hemmenway v. Hickea 67, 70 Henderson v. Adams 449 V. Reamer 335 Hennessey v. Andrews 506 Henry v. Brown 267 Hensliaw v. Cotton 603 Herbert v. Comstock 262 Herrick v. Richardson 167 Herring v. Polley 176, 529, 530 Heustis V. Rivers 169 Heydon's Case 513 Heywood v. Hildreth 5.39 Iligby V. Upton 307 Hildreth v. Brigham 136 V. Conant 90 V. Thompson 184 Hill, Ex parte 378 V. Goodchild 612 V. Hill 429 V. Sayles 504 V. Wells 435 Hills V. Jones 143 Hitchiugs V. Ellis 477 Hobbs u. Stone 471 Hobson V. Watson 179 Hodges T. Hodges 69 Hogan V. Ward 404 Holbrook v. Chamberlin 120 V. Lackey 305 V. Waters 572 Holden v. Jenkins 262 Holker v. Parker 172 Holland v. Hopkins 291, 300 HoUingsworth v. Napier 386 HoUis V. Pool 91 V. Richardson 250 Holly V. Brown 92 Holmes v. Hunt 440, 444 V. Wood 62, 69 Holton V. Brown 546 Hooper v. Cox 134 Hopkins v. Beedle 512 Horner v. Battyu 153 Horton v. Hill 378 Hosnier v. Warner 541, 551 Houghton V. Bartholomew 127 How V. Field 28 Howard v. Grover 386 V. Locks and Canals 506 V. Williams 115, 117, 118 Howden v. Rogers 201 Howe V. Pierson 479 V. Ray 507 Howell V. Harding 179 V. Richards 267 Howland v. Gilford 3-53, 379, 387 Hewlett y. Holland 279 XVIU INDEX TO CASES CITED. FAGE Hoyt V. Byrnes • 544 V. Gilman S81 V, Robinson 45 V. Sprague 571 Hubbard v. Knous 279 V, Leonard 395 V. Mack 154 Hubon V. Bousley 37 Huckins v. People's, &c. Co. 465 Huff V. Bennett, 465 Hughes V. Mayre 178 Hulbert v. Comstock 262 Hulett V. Pixley 251 Humphi-ey v. Berkshire Woolen Co. 206 V. Cottleyou 298 V. Strong . 69 Hunt V. Adams 382 V. Hanover 566 V. Lowell Gas Light Co. 477 V. Nevers 515 V. Spaulding 252 Huntington v. American Bank 277 V. Blaisdell 153 Hurst V. Barrel! 383 V. Watkins 299 Hurtin v. Hopkins 382 Hutcliins V. Howard 179 Hutchinson v. Birch 151 V. Crossen 292 V. Tucker 289 Hutton V. Boulton 281 Hyatt V. Wood 383 Ilsley V. Jewett 515 V. Stubbs 49 India Wharf v. Central Wharf 494 Ingalls V. Baker 120 Ingersol v. Sawyer 107 Israel v. Benjamin 278 J. Jackson v. Bartlett 174 V. Burtis 175 V. Cody 384 V. Hammond 290 V. Stewart 170 Jacobs V. Jacobs 229 V. Mellen 21 Jamaica Pond Aqueduct Co Cliandler James v. Townsend V. Walruth Jarvis v. Blanchard V. Hathaway V. Rogers Jeffries v. Randall 356, 377, 399, 405 37 266 566 382 311 379, 387 514, Jenks V, Dyer V, Ward Jevcns II. Harridge Jewett V. Locke Joannes v. Pangbom Johnson v. Babcock V. Boudry V. Farwell V. Harvey V. Jebb V. Neale Jones, Appt. V. Andover V. Fales V. Hacker V. Hoar V. Kelly V. Sparrow V. Stevens V. Witter Jordan v. Dennis Judd V. Buchanan K. 61 PAGE 27 531 266 275 562, 063 115 424 251 69,70 71 40 227 k60 363 6i> 277 160, 163 380 444 173, 311 566 38 Kane v. Learned 366 Keegan v. Cox 396 Keller v. Webb 289 Kelley v. Riley 174, 400, 522 Kellogg V. Gilbert 174 V. Waite 672 Kelly V. Laws 421 V. Waite 91 Kendall v. Kingsley 27 Kennebec Purchase v. Boulton 513 Kent V. Charlestown •356 ,388 Kentucky v. Dennison 189 Kerley v. Kerley 76 Kidney v. Richards 374 Kiffy. Old Colony & Newport E.. R Co. 120 Kimball v. Morris 190 192 V. Wilkins 289 King V. Bishop of Oxford 190 V. Cook 271 V. Edyvean 193 V. Fowler 309 V. Mayor of Fowey 193 V. Reed 414 V. South erton 181 V. Welcome 328 329 Kinsley v. Ames 90 Kinsman v. Warner 530 Knap V. Sprague 124 Knapp V. Crosby 67 Knight V. Freeport 376 Knowles, Petr. 567 V. Bachelder 396 Knox V. Chadbourne 116 V. Costello 72 INDEX TO CASES CITED. PAGE L. Lowell Gas Co. V. Bean 374 FAjQE Lowry v. Lawrence 252 Ladd V. Billinga 49 Lucas B. Lucas 36 V. Patten 545 Ludden b. Leavitt 49 Lakeman v. Morse 5B3 Lunt V. Davidson 192 Lamb v. Latlirop 5S0 Lytbrd b. Tyrrei 149 V. Stone 586 Lyman v. Warren 445 564 Lambert v. Buckmaster 178 Lyon B. Lyon 200 Lamphear v. Lamprey 391, 396 Lyons b. Ward 276 Lanipley v. Beavers 335 Lane v. Jackson 121 B. Smith 160 M. Lanesborough w. Co. Commissioners 502 Langdon v. Dowd 319 Mace B. Lovett 285 V. Potter 174 Mack B. Parks 120 Lawrence v. Baker 465 Madden v. Brown 284 565 V. Bassett 335 Maguire v. Middlesex R. R. Co. 385 Leary b. Eeagan 210 Maine Bank b. Hervey 335 Leavitt v. Bangor 667 Maine Ins. Co. b. Weeks 120 V. Lyons 41 Makepeace b. Coates 308 309 Lee, Appt. 227 Malcolm b. Fullarton 280 V. Gansel 150 Mangue b. Mangue 429 r. Kane 251 Mann v. Brewer 286 288 Le Grew v. Cooke 283 Mannan b. Merritt 114 Leighton v. Brown 621 Manning b. Lowell 401 V. Sargent 177 Mansfield v. Doughty 69 Leonard v. Rohbins 254 Manuel b. Bates 139 Lerned v. Johns 328 Marblehead v. County Commis- Lewis B. Bolitho 326 sioners 193 V. Denny 30 Marine Ins. Co. v. Hodgson 3b6 B. Carnage 174 Marsh v. Gold 105 152 B. Masters 54 Marshall v. Crchore 410 B. Webber 112, 539 B. Hosmer 105 Libby b. Downey 329 ti. Smith 255 Life & Fire Ins. Co. of New York Martin v. Francis 178 B. Adams 191 B. Tobin 210 Lincoln b. Cook 292 Marvin d. Mandell 261 V. Hapgood 378 Mason v. Waite 665 Linton v. Hurley 186 Mather b. Green 163 Lipscombe b. Holmes 278 Mathers b. Cobb 667 Litchman b. Potter 50 Mattoon b. Mattoon 682 Livingston v. Rogers 512 Maxham b. Day 64 Lobdell B. Sturtevant 632 May V. Foote 135 Locke B. Bennett 441 u. Shnmway 130 V. Lexington 193 V. Western Union Telegraph Lombard v. Oliver 334 Co. 274 Long B. Billings 160 Maynard b. Frederick 453 B. Greville 278 McArthur v. Starrett 684 Loomis B. Wadhams 335 McCall B. Parker 435 Lorck V. Wright 283 McCarren b. McNulty 401 Lord B. Baldwin 540 McCarty b. Springer 45 V. Skinner 135 McConnell v. Blood 120 Loring v. Alden 449 McConoIogue's Case 69 V. Cooke 546 McCormick v. CarrciU 108 532 Loud V. Penniman 676 McDonald b. Morton 227 Lovejoy b. Webber 61 B. Webster 311 Lovelock B. Cheveley 291 McFadden b. Frye 436 Loveridge b. Plaistow 150 B. Otis 66 Lovett B. Salem & So. Dan vers McGee v. Barber 45,46 R. R. Co. 250 McGregor v. Crane 153 Lowell V. Morse 273 V. Williams 530 533 XX INDEX TO CASES CITED. PAGE PAGE Mulniffe v. Wheelock 289 392 548 Mowry v. Chase 153 ■Vr:t Mclver v. Wattles 566 V. Todd 309 McLaugliliu o. Nash 120 Mulholand v. Van Fine 299 V. Western I .R. Co. 575 MuUaly v. Austin 276 MoMahan v. Bowe 80 o. Holden 251 MuMarpliy v. Minot 92 MuUer v. Hartsliorne 278 McNeil, £x parte 130 201 ,462 Mulligan v. Newton 118 MuQuesten v. Morgan 92 Mumford v. Freeman 322 Meagher v. Bachelder 567 Munroe v. Brigham 352 ,387 Meekins v. Smith 462 Murphy v. Merrill 30 Melvin v. Wliiting 582 V. Murphy 28 Mercer u. Sayre 382 385 Murray v. Stevens 189 ,192 Mercliant's Bank v. Cook 101 Meredith o. Wall 435 Merriam v. Merriam 82 N. Merrill v. Berkshire 501 V. Russell 443 u. Sawyer 121 Nash V. Brophy 289 Merritt v. Morse 374 Naylor v. Dennie 121 Merryweather v. Nixan 613 Negus V. Simpson 381 Metcalfy. Sweet 66 Nelson v. Andrews 457 519 Middlesex Bank v. Minot 229 V. Boynton 328 Middlesex Canal Co. o. McGregor 383 Newcomb t'. Newcomb 432 Middlesex Co. v Osgood 2J2, 314, 329 v. Williams 98 Middleton v. Hill 178 Newhall v. Hopkins 383 Miles V. Boyden 170 177 New Haven & Northampton C o.v. Miller, Ex parte 194 Northampton 563 578 V. Baker 3'JO New Haven Copper Co. a. Brown 310 V. Batchelder 422 Newman v. Kettelle 315 u. Co. Commissioners 499 New Marlborough v. Berkshire 193 u. Lyon 582 Nichols V. Suncook 371 V. Miller 452 Noonan v. Brogan 439 V. Washburn 46, 100 Norris v. Beach 462 V. Williams 278 V. Lynch 409 Milwood V. Walter 299 Northfield Bank v. Brown 381 Mitchell V. Kingman 171 Nowell V. Waitt 148 V. Milbank 513 Nye V. Smith 163 V. Oldfield 178 308 V. Shanley 90 V. Wright 298 Moffat V. Parsons 548 0. Monosiet v. Post 68 Montagne i'. Boston & Fairhaven O'Brien v. Armis 102 Iron Works 275, 305 311 Ocean Ins. Co. v. Portsmouth Rail Moody V. Mahurin 545 way 271 Moore v. Fitchburg E. R. Co. 255 V. Rider 310 536 ... Heald 519 O'Connell v. M.'Grath 91 V. Towle 32 O'Donnell v. Hitchcock 120 Morgan v. Morse 466 V. Mclntire 572 Morrill v. Keyes 444 Olivant v. Berino 282 V, Norton 1-34 Oliver v. Trustees, &c. 378 Morrison v. McDermott 572 O'Loughlin v. Bird 272 Morrow v. Saunders 266 Olney v. Adams 77 Morse v. Dayton ' 147 V. Brown 452 V. Mason 405 Ormerod ». Tate 178 Morton v. Dean 327 Osborn v. United States Bank 102, 175 Morviile v. American Tract Society 4.56 Osgood V. Breed 568 Mottw. Anthony 69 V. Thurston 44 V. Hazen 165 Otis V. Hadley 242 Motte V Alger 326 Ouimet V. Sirois 28 Moulton V. Bowker 173 Oulds 0. Sansom 170 INDEX TO OASES CITED. Ousterhout v. Day Oystead v. Shod PAGE 176 120, 150 P. Packard, Ex parte 37, 38 V. Beynolds 441, 444 Paddock v. Commercial Ins. Co. 444, 446, 467 Page V. Contoocook Valley E. K. Co. 8.55 V. Danvers 387 V. Monks 329 V. Osgood 357 V. Pattee 383 V. Robinson 82 Paine v. Ward 576 V. Woods 507 Palmer v. Powley 81 V. Hyde 381 Parker v. Cliandler 166 V. Danfortli 28 V. Downing 174 V. Harris 73 V. Kinsman 28 V. Simonds 55 Parkman i'. Crosby 251 Parks V. Boston 193 V. Brewer 583 Patten v. Gurney 291 Patterson v. Buckminster 47, 341 V. Patten 47 Patton V. Springfield 504 Paul V. Holden 134 Peabody v. Hamilton 103 V. Minot 568 Pearce v. Atwood 491 Peas V. Allis 474 Peck V. Hapgood 82 Pembroke v. Abington 17 Penniman v. Cole 186 V. French 228 V. Hartshorn 327, 328 People V. Burdock 290 V. Clark 198 V. Middlesex Turnpike Co. 198 V. Throop 191 Perkins v. Beck 546 V. Knight 376 Perry v. Breed 401 1'. Dover 107 V. Goodwin 67, 511 V. Wilson 340 Peters v. Davis 255 V. Peirce 456 V. Peters 193, 220 Peterson v. Barry 387 Petrie v. Benfield 290 V. Hannay 68 Pettee v. Peppard 530, 533 Pettee v. Prout PAGE 306 Phelps V. Goodman 455 V. Rice 311 Phillips V. Soule 374, 398 899 Phinney v. Andrews 465 Pickering v. Reynolds 534 Pickwood V. Wright 70 Picquet, Appt. 227 Pierce v. Adams 67 V. Balkam 82 V. Gray 116 117 V. Jackson 112 539 V. Thompson 440 V. Woodward 369 Pierson v. Weller 28 Piersons v. Hobbs 453 Pinder v. Morris 178 Piper V. Pearson 348 349 Pitt V. Yalden 174 181 Pitts V. Aldrich 82 Pleydell v. Dorchester 380 Plymouth v. Mills 386 Plympton v. Baker 7 PoUey V. Lenox Iron Works 123 Pond V. Kimball 117 Pope V. Pope 36 Porter v. Rummery 69, 72, 291, 370 V. Spencer 201 Portland Bank v. Stubbs 49 Postle V. Beckington 283 Potter V. Hazard 418 Powell V. Hinsdale 564 V. Jenny 416, 576 Powers V. Provident Inst, for Sav- ings 404 V. Ware 265 Pratt V. Farrar 91 V. Putnam 534 V. Sanger 272 V. Wheeler 126 Prentiss v. Barnes 250 Presbrey v. Presbrey 89 Prescott V. Kyle 91 V. Read 318 u. Wright 150 Preston v. Neale 302 Pringle v. Huse 355, 357 V. Phillips 54 Propeller Genessee Chief 246 Proprietors, &c. o. Reed 46 Prout V. Root 120 Prouty V. Draper 586 Provident Inst. &c. v. Burnham 76 Pulsifer v. Shepard 550 Purple V. Purple 51 Putnam v. Hall 292 Q- Quinley v. Atkins 483 xxu INDEX TO CASES CITED. R. FAQE Band v. Mather 329 V. Newton 360 V. liedington 380 Eandall, Petr. 174, 181 V. Lynch 278 Handle v. Fuller 178 EatelifEe v. Burton 150 Eathbone v. Eathbone 396 Eav V. Coffin 438 a. Wight 524 Raymond r. Lowell 491 Rayner v. Bell 163 V. Whicher 117 Read v. Boardman 483 V. Cambridge 502, 503 V. Dupper 178 u. Smith 250 V. Sutton 326 Reade v. Anderson 473 V. Lamb • 328 Eeed v. Haskins 436, 437 V. Howard 123 u. Neale 118 V. Scituate 238, 262 V. Shepardson 539 Eenner v. Marshall 263 Reynolds v. Plummer 566 Ehodes v. Brooks 168 V. Salem Turnpike Corpo- ration 492 Ribbans v. Crickett 278 Rice w. Carnes 166 V , Chapin 436 V. Enwright 261 V. Hale 199, 201, 600 V. Hosmer 162-163 V. Nevens 308 Richards v. Blood 304 Ti. Gilmore 105 V. Stephenson 33 V. Wheeler 66, 69 Richardson ». Boston Laboratory 546 I!. Buswell 114 V. Curtis 563, 578 V. Payne 529, 530 Eiley v. Farnsworth 404 V. Lowell 500, 501 Eipley v. Warren 289 Eobb V. Moffat 149 Eobbins o. Hayward 567 u. Eice 81 h. Eobbins 431 Roberts v. Old Colony E. E. Co. 456 Eobinson, Ex parte 243 V. Trofitter 402 Eockwood V. Walcott 419 V. Whiting 319 Eoder v. Hapgood 478 Eogers v. HiU 40 FACIE Eogers v. Ladd 347 V. Page 887 V. Eeeves 160, 162 V. Rutter 546 Root V. Sherwood 369 Kopps V. Barker 371 Eoscoe V. Hale 322 Eoss V. New England Ins. Co. 431 Rowe V. Williams 449 Rowley V. Kinney 386 Haggles V. Frceland 38 V. Ives 46,99 Russell V. Goodrich 147 V. Palmer 174 V. Quinn 356 Eyckman v. Haight 298 Eyerson v. Abington 363-364 s. Sabin v. Jones 437 V. Long 613 Sabine v. Strong 483, 484 Sackett v. Kellogg 53 Saiford v. Knight 40 Sage V. Ensign 323 Salmon v. Nation 135 Sampson v. Bradford 506 Sanborn v. Flagler 327 328 Sanderson v. Stevens 167 Sanford u. Buckley 546 V. Chase 130 462 Sargent v. Roberts 367 383 V. Southgate 304, 305 312 Saunders v. Frost 563 V. Robinson 89 Savage v. Birckhead 483 Sawin v. Martin 236 Sawyer v. Bancroft 563 V. Merrill 387 V. Wiswell 517 Saxton V. Chamberlain 227 Sayles v. Brlggs 670 V. Fanning 434 Sayward v. Conant 167 Schoole V. Noble 179 Scott 1). Elraendorf 172 Scovill V, Eoot 123 Seagrave v. Erickson 272 Seamour v. Bridge 283 Sears v. Trowbridge 273 Seaver v. Lincoln 251 Secor V. Bell 130 Seeley v. Brown 165 Semagne v. Gresham 150 Seymour v. Deyo 378 ,383 Shadgett v. Clipson 154 Sharp V. Sheriff 167 Shaw V. MuGregory 478 V. Thompson 420 INDEX TO CASES CITED. XXIU PAGE PAGE Shawmut Ins. Co. v. Stevens 273, 274 Sparhawk v. Sparhawk 429 Shearer v. Mooera 455 Spawn V. Vcider 291 Shepherd v. Jackson 108 Sperry v. Rioker 451 ,454 Sherman v. Conn. H. Bridge 253 Spicer v. Teasdale 512 Shields v. Hastings 532 Spofford V. Huse 422 Shirley v. Lunenburg 66,71 Springfield v. Co. Comm' rs. 191 ,192 Short V. Pratt 69 453, 454 V. Sleeper 371 Shove V, Dow 126, 532 V. Worcester 522 Shumway v. Fowler 386 Squire v. Archer 281 V. Rutter 113 V. Todd 297 Shurtleffu. Hutchins 210 Stackpole V. Hunt 403 Shute V. Barrett 380 Stacy V. Kemp 517 Sibley «. Estabrook 317 Stafford v. Clark 278 V. Phelps 817 V. Knight 165 Silva V. Low 382 Standen v. Edwards 386 Simeon v. Cramm 292 Standish v. Old Colony R. R. Co. 404 Simmons v. Almy 179 Star Glass Co. u. Morey 466 V. Apthorp 40 State V. Lull 465 V. Bradford 107, 163 Statesbury v. Smith 69 Simpson v. Carleton 477 Stearns v. Washburn 259 V. McFarland 52 Stebbins v. Lathrop 228 Skeels v. Chickering 452 , B. Palmer 227 228 Skillings V. Coolidge 69 Steele ?'. Carson 487 Skinner v. King 307 Stetson V. Walcott 471 Skipwith V. Hill 17 Stevens v. Bigelow 166 169 Slade V. Slade 432 V. Stevens 564 Slate V. Ackley 96 Stevenson v. Blakelock 178 Slater v. Nason 98 V. York 279, 283 542 V. Smith 327 Stiles V. Allen 483 Slayton v. Molntire 82 Still V. Hall 517 Sleeper r. I'aige 319 Stockbridge v. Damon 306 Smith V. Bowditch 175, 177 r.WestStockbridge38 ,386 V. Bradstreet 227, 228 Stockwell V. Silloway 146 „■. Brush 386 Stoddard v. Doane 322 u. Cheetham 370, 380 Stodhart v. Johnson 279 V. Cleveland 292 Stone V. Carter 132 153 V. Dunham 317 V. Charlestown 238 V. Earle 354, 388 V. Davis 86 V. Floyd 98, 177 Storer v. McGaw 279, 543 550 V. Gorman 453 V. White 67 V. Hayden 434, 437 Stoveld V, Brewin 277 V. Haynes 227 Stratton v. Upton 583 V. Meegan 127 Strong, Petr. 190, 191 238 V. Norris 422 V. Simpson 281 V. Paige 66 Stuart V. Stuart 399 u. Putney 869 Studley u. Hall 380 V. Rice 220 Suit V. Woodhall 261 V. Sanborn 113 Sullivan v. Holker 291 V. Smith 545 c. Sullivan 474 V. Stewart 175 Sutton V. Dana 370 (.. Thompson 378 Swain V. Mizner 150 V. Whiting 51 V. Senate 178 V. Woodman 308 Swan's Case 352 Snow V. Perry 545 Swannell v. Ellis 174 Soniers v. Keliher 27 Swett V. Brown 29 Soule V. Russell 570 V. Bussey 411 Southworth v. Bradford 69 Swett's Case 352 V. Packard 67,68 Swift V. Crocker 251 V. Smith 544 Symonds v. Kimball 415 Sparhawk v. Bartlett 157, 163 K. Mayo 449 XXIV INDEX TO CASES CITED. PAGE T. Turner v. Austin 105 106, 124 PAGE I). Lowry 167 Taber v. .Jenny 446 V. Shearer 319 Tallnaan v. Tallman 456 V. Wentworth 422 Tapley v. Goodsell 128 Turwin v. Gibson 178 V. Martin 400 Tuttle V. Gates 384 Tappan u. Blaisdell 113 539 Tyng V. Thayer 483 Tarbell v. Gray 260 269 Tarbell's Case 59 Tate V. Anderson 532 U. Tatem ;;. Adams 570 Taunton Mfg. Co. u. Smith 380 Ufford V. Dickinson 532 Taylor v. Henry 190, 191 Underwood v. Clements 134 V. Jaques 568 V. Miller 266 V. N. B. Coal Mining Co. 260 Union Bank v. Geary 176 V. Porter 82 United States v. Arthur 266 V. Taunton 390 United States Bank v. Planter s Tebbetts n. Goding 250 Bank 102 Tenny v. Moody 299 Terry v. Brightman 389 Tliatoher u. Miller 68, 108 194 292 V. V. Williams 134 Thayer v. Commonwealth 66 Vaise v. Delaval 377, 380 V. Daniels 316 Van Ness v. ITairchild 166 V. Goddard 36 Van Slyck v. Hogeboom 383 Thomas v. Goodwin 29 Varnum v. Abbot 78 V. Pearce 152 V. Martin 175 V. Sever 68 568 Vaugh V. Wetherell 507 V. Washburn 46 Vaughan v. Barnes 280 V. Waterman 316 Vernon v. Hankey 385 Thompson v. Hatch 4 Viall V. Carpenter 551 V. Marsh ■124 Vinton v. Bradford 124 V. O'SuUivan 273 Von Hemert v. Porter 515, 516 Thompson's Case 130 Vose V. Howe 456 Thorndike v. Bordman 586 Tilden v. Johnson 337 Tilton V. Tilton 227 w. Tisdale v. Brabrook 495 Toddy. Barton 40 Wa'de V. Beasley 300 Tompkins v. Wyman 495 V. Mason 49 Toms V. Powell 178 Wadsworth v. Williams 630, 533 Town V. Trow 548 Wait V. McNeil 381, 382 Towne w. Rice 524 V. Maxwell 384 Townsend v. Way 337 Waite V. Garland 68 Tracy v. Maloney '336 Walcott V. Pomeroy ■49 V. Preble 148 Walcutt V. Spencer 81 Train v. Wellington 121 Walker v. Dewing 291 Trask v. Bowers 381 387 V. Lyman 227 V. Searle 419 V. Oxford Woolen Man'fg Tripp u. Brownell 4 Co. 507 V. Co. Comm'rs 503 V. Sharpe 90 Triviban u. Lawrence 15 Wallace v. Bartlett 116, 118 Troy & Greenfield R. R. Co. v. New . V. Cumberland 267 ton 273 Waller v. Graves 386 Truesdell v. Wallis 304, 384 Wallis 0. Carpenter 254 Truro v. Freeman 77 Ward V. Center 381 Tryon v. Mansir 114 V. Johnson 567 V. Merrill 48 Warner v. Howard 95 Tucker v. Mass. Cent B. E. 501 Warren v. Charlestown 601 Tudor V. Peck 69,454 V. Copelin 33 Tufts V. Newton 4031 V. Ferdinand 261 INDEX TO CASES CITED. PAGE PAGE Warren v. Gilmore 166 White V. Woodhouse 277, 281 V. James 93 Wiiithead c. Keyes 153, 154 V. Kicliols 550 Whiting V. Cochran 68, 74 V. Sullivan 27 V. Hadley 535 V. Waldron 510 V. Putnam 160 Warshauer v. Jones 390 Whitton V. Harding 165 Washburn v. Clarkson 572 V. Wass 319 V. Pliillips 188 Whitwell V. Atkinson 68 V. Washburn 390 Widgery v. Haskell 151 Washington v. Eames 274 Wieland v. White 173 Wasson v. Bowman 571 Wiggin V. Lewis 523 Wassum V. Feeney 388 V. Swett 227 Waterhouse v. Waite 534 Wilbur V. Crane 434 Waterman v. Eobinson 49 r. Eipley 76 Waters v. Stiokney 568 Wilcox V. Mills 45 Watson V. Todd 121 124, 126 Wilkins v. Carmichael 178 Watts V. Howard 386 Wilkinson v. Payne 382 Waugh V. Bussell 207 V. Scott 383 Way V. Dame 24 Wilks V. Lorck 154 V. Wright 166 Willard v. Ward 88 Wayland v. Ware 385, 300, 402, 408 V. Williams 269 Weaver's Company v. Forrest 267 Willey V. Durgin 344 Webber v. Orne 441, 445 V. Thompson 396 Webster v. Lee 69 Williams v. Allen 299, 301 V. Vandeventer 78 V. Amory 5.32 Weld V. Bartlett 103 V. Bacon 327, 328 Welles V. Fish 489 V. Boardman 24 Wellington v. Gale 532 V. Brackett 109, 292 Wells V. Hatch 179 V. Breedon 512 Welsh V. Hole 178 i;. Campbell 438 V. Joy 107, 108, 109 V. Cheney 471 Wendell v. Safford 381 V. Copeland 434 Wentworth v. Dows 517 V. Gridley 322 V Treanor 227 V. Hodge 40, 563 Wesson r. Newton 451 V. Kenney 8.34 West V. Brock 567 V. Powell 123 V. Piatt 896 V. Spencer 151 V. Wentworth 566 Willington v. Stearns 18 Weston, Ex parte 68 Willis r. Crooker 165, 293 V. Ames 316 Wilmarsh v. Eichmond • 526 Wetherbee i-. Johnson 395 Wilson, Ex parte 149, 151 V. Winchester 470 V. EUiott • 118 Wetmore v. Plant 65 V. Green 44 Wheatland i: Levering 251 V. Lane 113 Wheeler v. Lynde 97 V. Eastall 382, 383 !/. Train 49 Winch V. Hosmer 289 V. Wheeler 165 Winchell v. Styles 169 Wheelock v. Hastings 125 Winchester ;;. Jackson 566 V. Moulton 66 Winn V. Columbian Ins. Co. 381, 390 Wheelwright v. Freeman 77 Winsliip V. Neale 360 V. Greer 435 Winslow V. Draper 368 Whichler v. Wliichler 478 V. Hathaway 186, 308 Whitalcer v. Greer 85 V. Merchants' Ins. Co. 120 Whitcher v. Shattuck 38 1 Winsted Bank v. Adams 32 Whitcomb's Case 443 Winthrop v. Carlton 340 White V. Bodwell 502 Witherlee v. Ocean Ins. Co. 371 V. Harlow 179 Witt V. Potter 273 V. Judd 582 Witter !•. Witter 73, 305 V. Palmer 67 Wixon V. Lapham 46,99 V. Wetherbee 98 Wolcott V. Dooley 570 V. Wiltshire 151 ./.Ely 529 XXVI INDEX TO CASES CITED. PAOE PAGE Wood V. Cole 479 Wright t'. Boynton 243 V. Melius 153 V. Keiih 154 V. Neale 130 V. Quirk 403 V. Ross 289, 502 Wyman v. Symmes 474 V. Simons 422 Woodbury v. Obear 230 V. Proctor 455 Y. Woodrow V. Mansfield 285 V. O'Connor 454 Yate V. Willan 278 Woods V. Clark 483, 484 Young V. Capen 477 V. Houghton 320 V. Dearborn 179 Woodside v. Ridgeway 90 V. Hosmer 163 Woodward v. Dean 354, 388 V. Makepeace 438 V. Leavitt 385 V. Spear ■ 227 Woolson V. Boston & Worcester Z. R. R. Co. 457 Worcester County v. Schlesinger 155 Zimmerman v. Schonfeldt 465 TABLE OF EEPORTS OF THE NEW ENGLAND STATES. HOW CITED, TOTAL VOLS. CONNECTICUT. Kirby Root .... Day .... Connecticut 1-49 Maine 1-9, or Greenleaf 1-9 . Maine 10-12, or Fairfield 1-3 . Maine 13-74 MASSACHUSETTS. Quincy's Reports .... Massachusetts .... Pickering Metcalf Gushing Gray Allen Massachusetts 97-133 . . NEW HAMPSHIKB. Smith's Reports New Hampshire N. Hampshire 22-31, or Foster 1-11. New Hampshire 32-58 RHODE ISLAND. Rhode Island VERMONT. N. Chipman D. Chipman Tyler Brayton Aikens Vermont 1-54 . . . . 1 2 5 49 9 3 61 1 17 24 13 12 16 14 37 1 20 11 27 1-13 1 2 2 1 2 54 1785-88 1789-98 1802-13 1814-82 1820-32 1833-35 183&-83 1761-72 1804-22 1822-40 1840-47 1848-53 1854-60 1861-67 1867-82 1802-16 1816-50 1850-55 1855-79 1828-82 1789-91 1789-1825 1800-03 1815-19 1826-27 1826-82 Kirby Root Day Conn. Me. (Greenl.) Me. (Fairf.) Me. Mass. Pick. Met. Cush. Gray Allen Mass. N. H. N. H. orFost. N. H. R. 1 N. Chip. D. Chip. Tyler Brayt. Aik. Vt. 57 73 134 59 13 62 PRACTICE, PRACTICE. CHAPTER I. PEACTICE IN GENERAL. § 1. Practice in civil actions in the courts of Massachusetts is the subject of the present work. An action is the legal mode of redressing civU injuries and recovering civil rights. In this broad sense of the term the word "action" will include every form of procedure in the courts allowed by law. The form of action may be by petition, by action at common law, or by suit in equity. " By the term ' practice ' as applied to proceedings in the courts is understood the form and manner of conducting and carrying on suits at law or in equity, through their various stages, from the commencement of the process to final judg- ment and execution, according to the principles of law and the rules laid down by the courts." ^ Practice is regulated in part by statute, in part by rules of court, and in part by common usage, which, receiving from time to time the sanction of the courts, has become a part of the law in relation to practice. The statutes provide that the courts shall respectively, from time to time, make and promulgate uniform codes of rules for regulating the practice and conducting the business of such courts, in cases not expressly provided for by law ; but such rules are required not to be repugnant to the laws 1 5 Jac. Law Diet. 253. 4 PRACTICE IN GENEEAL, [CH. L of the State, and the rules of the Superior Court may not con- flict with those of the Supreme Judicial Court.^ Rules of court thus authorized, when made and promul- gated by the courts, have the force of law, and. are binding upon the court as well as upon parties to an action, and can- not be dispensed with to suit the circumstances of any par- ticular case.2 The statutes of the State contain numerous provisions regulating practice in the courts, and by the Constitution of our State the common law of England, so far as applicable to our situation and government, was adopted, as the law of the land. " The best evidence of the common law," says Kent, " is to be found in the decisions of the courts of justice, contained in numerous volumes of reports, and in the treatises and digests of learned men, which have been multipljdng from the earliest periods of English history down to the present time." " A still better exposition of the common law as received and modified in reference to the genius of our own institu- tions may be found in our American reports, including the published decisions of the highest judicial tribunals of every State in the Union and of the Federal Courts." ^ The rules of court and legislative enactments together with the decisions of the courts upon kindred subjects con- stitute the law regulating practice in the courts of the Com- monwealth. The statutes of the State can have no force beyond its limits, and rules of court are limited in their application to the jurisdiction of the courts by which the rules are adopted ; but the decisions of the courts of all the States on matters of practice have a more extended authority as a part of the common law on such subjects. The statutes of the United States provide that " the prac- tice, pleadings, forms and modes of proceeding in civil causes, 1 Pub. St. i;. 153, § 4. 516; Tripp v. Brownell, 2 Gray, 402; " Thompson v. Hatch, 3 Pick. 512- Baker v. Blood, 128 Mass. 543. 8 1 Kent Com. § 473. • § 1.] PEACTICE IN GENERAL. 5 other than equity and admiralty causes in the circuit and district courts, shall conform, as near as may be, to the prac- tice, pleadings, forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such circuit or district courts are held, any rule of court to the contrary notwithstanding ; " and that, "in common-law causes in the circuit and district courts, the plaintiff shall be entitled to similar remedies, by attach- ment or other process, against the property of the defend- ant, which are now provided by the laws of the State in which such court is held for the courts thereof; and such circuit or district cour-ts may from time to time, by general rules, adopt such State laws as may be in force in the States where they are held, in relation to attachments and other process." ^ It appears, therefore, that the practice and pleadings in civil causes in the circuit and district courts of the United States vary in the different States, to conform to the practice and forms of pleading in the State where the court is held. A work on practice must necessarily treat of a great vari- ety of subjects, and consequently, when limited to a single volume of reasonable dimensions, cannot be exhaustive on every branch of law noticed in it. It seems that it would be impossible to write a work on practice without including in it some portion of the law of pleading; and yet no work on practice is expected to contain an exhaustive treatise on that branch of the law. The sub- jects are, indeed, quite different. The pleadings in an action are the written statements of the parties, presenting in legal form the facts of the case. By practice is understood the modes of proceeding in a suit, from its commencement to its final determination. This work will be strictly confined to practice in common- law and statutory proceedings. In a work of this character it is very difficult to draw correctly the line between those matters which should be included in^it and those which should be excluded from it. 1 U. S. Bev. St. § 914, 915. 6 PKAOTICE IN GENEKAL. [OH. L Without expecting entirely to overcome this inherent diffi- culty, it will be the constant purpose of the author to draw that line as near as possible where it belongs, and to include in this work only such parts of the law as relate to the sub- ject of the work or serve to illustrate it, and to exclude as far as practicable all other matters. § 3.] DIVISION OF ACTIONS. CHAPTER II. DIVISION OF ACTIONS. § 1. Actions by their subject-matter are divided into real, personal, and mixed. § 2. Real Actions. — By the common law, real actions are for the recovery of real property only, in which the plaintiff claims title to lands, tenements, or hereditaments in fee- simple, fee-tail, or for term of life ; by writs of entry, right, formedon, dower, &c.^ By the statutes of Massachusetts the term " real action " is held to have a broader signification. In the case of Plymp- ton V. Baker,2 Shaw, C. J., says, " The single question in this case is. What was intended by the words ' real action ' in the statute of 1820, c. 79, § 4 ? They are to be construed in the sense intended by the legislature. We think, taken in con- nection with other statutes in pari materia, the terms ' real ' and ' personal actions ' were not used in the sense in which they are used in the common law and defined by Blackstone. " The broad distinction which runs through the statutes is that between actions in which rights to real estate may be brought in question and tried, and those which affect per- sonal rights." An action either of trespass quare clausum or of de bonis asportatis, in which title to real estate has been put in issue by the plea, is a real action within the meaning of our stat- utes, although the form of the action is personal.^ § 3. Personal actions, at common law, are in form ex con- tractu or ex delicto, or, in other words, are for breach of contract, or for torts unconnected with contract. Those 1 3 Bl. Com. 117. 8 Blood „. Kemp, 4 Pick. 169, 171. 2 10 Pick. 473, 474. 8 DIVISION OF ACTIONS. [CH. II. upon contracts are principally assumpsit, debt, covenant, and detinue. Those for wrongs are case, trover, replevin, and trespass vi et armis, these latter being the proper remedies for trespasses, nuisances, assaults, defamatory words, and the like.i This division of personal actions was early adopted in Massachusetts, and remained the law of the State till the year 1851, when an act was passed providing that there should be only three divisions of personal actions, as fol- lows : — First. Actions of contract, which shall include those here- tofore known as actions of assumpsit, covenant, and debt, except for penalties. Second. Actions of tort, which shall include those hereto- fore known as actions of trespass, trespass on the case, tro- ver, and all actions for penalties. Third. Actions of replevin.^ No change in this division has since been made. § 4. Mixed actions are suits which partake of the nature of the other two, wherein some real property is demanded, and also personal damages for a wrong sustained. The various kinds of actions included in the three divi- sions before mentioned, are commenced by writs, the differ- ent kinds and uses of which are stated in the next chapter. § 5. statutory Proceedings. — Under the general division of personal actions may also be included a variety of causes of action for which other special forms of remedy are prescribed by statute. Such, for instance, are claims of persons for dam- ages caused by the laying out and constructing of highways and taking land therefor, for damages occasioned by the tak- ing of land for railroads and other uses authorized by stat- ute, for damages to lands flowed by reason of the erection of mill-dams, proceedings to enforce mechanics' liens, and the process for divorce. The practice in these various proceedings are treated of in the following chapters of this work. 1 St. ofl851,c. 233, §1. 2 Gen. St. of 1860, c. 129, § 1 ; Pub. St. c. 167, § 1. § 6.] DIVISION OF ACTIONS. 9 § 6. A bill in equity is another form of action of great importance, and much resorted to. No attempt, however, is made in this v?ork to state the rules and law of practice in equity. It is, however, pertinent to the object of the work to state here, that in the Supreme Judicial Court and Superior Court a suit in equity may be changed into an action at law, and that an action at law may be changed into a suit in equity, if necessary to enable the plaintiff to sustain the suit or action for the cause for which it is intended to be brought. The Supreme Judicial Court have jurisdiction of all causes so changed.^ I Pub. St. C.167 § 43. ,10 ORIGINAL WRITS AND PROCESSES. [OH. IH. CHAPTER III. OKIGINAL WEITS AKD PROCESSES. § 1. The original writs and processes in use in our practice are : — 1. Original summons. 2. Capias. 3. Capias and attachment. 4. Summons and attachment. 6. Trustee process, or foreign attachment. 6. Writ of review. 7. Writ of scire facias. 8. Writ of dower. 9. Writ of replevin. 10. Writ of personal replevin (de Jiomine replegiando). 11. Writ of habeas corpus. 12. Writ of audita querela. 13. Writ of ejectment. 14. Writ of error. 15. Complaints for flowing lands. 16. Summary process for the recovery of lands. 17. Petition. 18. Libel for divorce. 19. Bill in equity. § 2. Original Summons. — This writ is a command addressed to an officer, and simply directs him to summon the defend- ant to appear and answer to the plaintiff. It is the appropri- ate writ in real actions ; in actions against sheriffs, executors, administrators, and guardians ; and in other cases, when it is not intended to attach property or arrest the defendant. § 4.] OEIGINAL WKITS AND PROCESSES, 11 § 3. Capias. Capias and attachment. These writs are the same in form. They differ only in the mode of service. The form is that in common use in actions of contract. It is a command " to the officer to attach the goods or estate of the defendant," or " for want thereof to take his body." "When it is served by taking the body of the defendant, it is used as a capias ; when served by an attach- ment of the property of the defendant, it is a writ of capias and attachment used as one of attachment. No change is made in the form of the writ. Its character is determined by the manner of its service. When an attachment of the property is made on the writ, a separate summons is issued to the defendant. A capias is made from the capias and attachment by striking out of the last-named writ the command to at- tach the goods or estate of the defendant. The capias is not often used ; and probably in all cases where it may be used, the capias and attachment may also be used. They are one writ with different powers. § 4. A capias and attachment is in form like an original summons, substituting, in the place of the command to " sum- mon the defendant," a command " to attach the goods or estate of the defendant, to the value of," &c., and "for want thereof to take the body of the defendant," &c.^ This is the proper writ to be used in all actions, real or personal, where the defendant may be arrested, if the plain- tiff so elect, — whether, in the particular case, he intend to arrest or to attach property. So, whenever the defendant's exemption from arrest is of a temporary character merely, this form of writ may be used. Thus, it may issue against members of Congress and of the legislature, parties, jurors, and witnesses attending court, although not liable to arrest for the time being ; but it must be observed that, while the defendant's temporary exemption continues, the writ can only be used as one of attachment. 1 Pub. St. c. 161, § 13-15 ; Commonwealth v. Smmier, 5 Pick. 366. 12 OEIGINAL WRITS AND PEOCESSES. [CH. III. But where the defendant cannot by law be arrested at all, this form of writ, with the direction in it to take the body, cannot be issued ; and if so issued, whether it were in fact as a capias or not, it would be abated, unless amended. Thus, if it were used in suits against corporations, from the impossibility of arresting them ; or against executors and administrators, because they are not personally responsible ; or against persons exempted from arrest ; or in an action upon judgment, where the defendant has been committed to prison upon the execution and -discharged by taking the poor debtors' oath, — it would be abated. ^ In all these cases the courts would probably allow an amendment to the writ, on motion. See chapter on Amendments. § 5. Summons and Attachment. — The form of this writ is not given by any statute. It is made by erasing the direc- tion, in the common capias or attachment, to take the body of the defendant, and substituting therefor a direction to sum- mon him ; in other words, it is an original summons, insert- ing therein a direction to attach the goods and estate of the defendant. This form of summons and attachment is used in the cases before mentioned, where a capias is improper, and the plain- tiff desires to attach property ; as in actions against corpora- tions, sheriffs, executors, and administrators, and in debt on a judgment upon which execution has issued and the defend- ant been committed and discharged.^ § 6. How to form these Writs from the Blank. — The same blank is generally used, in practice, for the four preceding forms of writs. The blank is the form of a capias and attach- ment, and the alterations of it are made to adapt it to the use intended, as follows : — 1. If both the commands, to attach and to arrest, be stricken out, and the words " summon to appear " be inserted, the writ is an original summons. 2. If the entire form of the writ is used, without the sum- 1 Cooke V. Gibbs, 3 Mass. 193 ; Howe's Pr. 56, 57. 2 Howe's Pr. 58. § 7.] ORIGINAL WKITS AND PROCESSES. 13 mens immediately following it in the statute, the writ is' a capias. 3. If the entire form of the writ is used, together with the following summons, it is a writ of capias and attachment. 4. If the form of the writ is altered by erasing merely the command to arrest, and inserting " to summon to appear," and is then used with the summons in some cases, and with- out it in others, which will be discriminated hereafter, the writ is a summons and attachment. § 7. What Writs to use. — As to the cases in which they should respectively be used: — 1. The original summons may be used in all cases what- ever, but is not necessarily to be used in any case. It is the most proper form where the plaintiff cannot or will not arrest, and does not wish to attach ; and it is frequently used in real actions, where, though either an arrest or an attachment may be made, yet neither often is. 2. The capias, or the capias and attachment, should be used in all cases where the plaintiff has an election of arresting the body or attaching property, and intends to do one or the other. 3. The summons and attachment should be used in those cases where the plaintiff cannot arrest, but desires to attach property. So that against corporations, sheriffs, executors, adminis- trators, and females, and on demands in cases where an arrest cannot be made, an original summons may be used, if an attachment is not intended ; and a summons and attachment must be used, if one is intended. Neither of the other two writs can, under any circumstances, be resorted to in the above cases. In all other cases, both in real and personal actions, the plaintiff may use an original summons, if he intends neither to attach nor arrest ; he must use a capias, if he intends to arrest the person, and a capias and attachment, if he intends to attach the property of the defendant. The use of the original summons being confined, as will be perceived, to cases where an attachment is not intended, the same object may be attained in all cases, by using a capias 14 OEIGINAL WBITS AND PKOCESSES. [OH. HI. and attachment, or a summons and attachment, when they would respectively be proper, if an attachment were intended, and making on them a nominal attachment merely, as of a chip, and leaving the common summons. Thus, in a real action, for example, if the plaintiff does not intend to attach or arrest, instep,d of an original summons he may use the capias and attachment ; that is, the same writ he would be obliged to use if he really meant to attach ; and by causing a nominal attachment to be made upon it, his purpose is effected. The same is true of all personal actions, where a capias and attachment is the proper writ. So, against corporations, sheriffs, &c., where the plaintiff does not mean to attach, a summons and attachment, with a nominal attachment, may be substituted for an original sum- mons.^ Care should be used to select the form of writ adapted to the action to be commenced. § 8. The trustee process is given by statute to be used in cases where the plaintiff wishes to attach the goods, effects, or credits of his debtor in the hands or possession of another person.^ The form of the writ is like that of the summons and attachment, with an additional precept to summon the person supposed to be trustee to show cause why the execution that shall issue upon such judgment as the plaintiff may recover in the suit shall not be levied upon the property of the defendant in the possession of the supposed trustee. See post, chapter on Trustee Process. § 9. Writ of Review. — Actions may be reviewed by a writ of review or on petition. The form of a writ of review may be a summons and attachment or an original summons, commanding the officer to summon the defendant in re- view to appear and answer to the plaintiff in the review of an action.^ See post, chapter on Review. § 10. A scire facias is a Writ founded on some matter of 1 Howe's Pr. 61. 8 Pab. St. c. 187, § 16, 26. 2 Pub. St. c. 183, § 1, 21. § 13.] ORIGINAL WEITS AND PEOOESSES. 15 record, as a recognizance, judgment, &c., requiring the per- son against whom it is brought to show cause why the party bringing it should not have the benefit of such record. But though a scire facias is a judicial writ, yet it is so far consid- ered as an action, that a release of all actions is a bar to a scire facias} It seems proper, therefore, to insert it in the list of original writs. The form of the writ is prescribed by statute, and although the forms given in the statutes are for a particular class of cases, the courts will allow the form given to be so altered as to suit all cases in which the writ may be used. The writ, in all cases, is substantially an original summons, commanding the officer to " make known " to the defendant to appear and show cause, &c.^ See post, chapter on Scire Facias. § 11. Writ of Dower. — The form of this writ is an original summons. It is given by Statute of 1783, c. 40, and has not been altered by subsequent statutes. It is the process whereby a widow may obtain her dower in the lands of her husband, wherein she is dowable.^ See post, chapter on Real Actions. § 12. Writ of Replevin. — The form of this writ is pre- scribed by statute.* It commands the officer to replevy cer- tain property belonging to the plaintiff, wrongfully taken and detained by the defendant, and deliver the same to the plain- tiff, provided he give a bond, as required in the precept and by statute. See post, chapter on. Replevin. § 13. Personal Replevin (de Homine replegiando). — This is a writ whereby a person restrained of his liberty may be re- stored to it by giving a bond as required by law. The stat- utes contain provisions in relation to it,^ and give the form of it, which may be found in the chapter on Forms. It is a common-law writ. 1 Triviban u. Lawrence, 2 Ld. Eaym. ' Pub. St. c. 174, §1; Steams on 1048; Grey v. Jones, 2 Wils. 251. Eeal Actions, 271. 2 Cooke V. Gibbs, 3 Mass. 193. « Pub. St. c. 184, § 1, 2. 5 Pub. St. c. 185, § 40-44. 16 OEIGINAL WKITS AND PROCESSES. [CH. III. See post, chapter on Personal Replevin. § 14. Habeas Corpus. — The object of this writ is similar to that of the writ of personal replevin, and it is more fre- quently resorted to. It differs from that in form. On a writ of personal replevin the person restrained, if entitled to the writ, is discharged on giving a bond, as required by law. By the writ of habeas corpus the party restrained is taken before the court and heard, and, if he appears to be illegally re- strained, is discharged by order of court; if the restraint appears to be legal, he is not discharged therefrom. The form of the writ is given by statute.^ ^Qe post, chapter on Habeas Corpus. §15. Audita Querela. — This writ is given by statute.^ Two forms of the writ are prescribed by the Statute of 1780, c. 47, one by section seven as an original summons, and the other in section four, with a few verbal differences merely, as a capias and attachment. And the plaintiff may use either, at his election ; that is, he may either summon the defendant, or attach his property. See^osi, chapter on Audita Querela. § 16. "Writ of Ejectmeut. — The common-law writ of eject- ment is designed and used to recover possession of real es- tate. Judgment in ejectment confers no title to the freehold, and therefore can never be final. This writ is abolished in Massachusetts, and a summary process for recovery of lands adopted by statute.^ § 17. Writ of Error. — This writ, although in the nature of a judicial writ, has been held to be an original writ, and a writ of right, grantable ex dehito justitice, and may be sued out with- out motion. It is treated as an original writ by the statute of Massachusetts, which requires it to be indorsed. It is in the nature of a commission to the judges of the court from which it issues, authorizing and requiring them to examine the grounds upon which a judgment, either in their own or an inferior court, was given in the case specified in the writ, 1 Pub. St. c. 185, § 6. 3 Pub. St. c. 175. 2 St. of 1780, c. 47 ; Pub. St. c. 186, § 1. § 20.] OEIGINAL WEITS AND PROCESSES. 17 and upon such examination to alter, reverse, or affirm the same, according to law.^ See post, chapter on Writ of Error. § 18. Summary Process for the Recovery of Lands. — This is in form a writ of original summons, whereby the person en- titled to the possession of any lands or, tenements may speed- ily and cheaply obtain possession of them from the person who unlawfully holds the same against the right of the plaintiff.^ See post, chapter on Summary Process, &c. § 19. Complaints for Piowage. — This is a process by which the owner of land may recover for damage done to his land by being flowed by water, when such flowage is occasioned by the erection by another person of a dam across a stream of water, whereby the water of the stream is set back upon the land of the complainant. It is in form a petition or com- plaint, and is given by statute.^ See post, chapter on Cases Triable by Sheriff's Jury. § 20. A petition is a prayer for relief. It should be ad- dressed to the court by its title, should state in clear and accurate terms the facts on which the petitioner relies, and conclude with a prayer for the relief or judgment sought. It is in some cases styled a complaint. It should be signed by the petitioner or his attorney, as may be required by law. As an original process it is not used in a great variety of cases. It is the process by which one tenant in common or joint tenant of land obtains a partition ; or when land of any per- son is injured by the laying out, altering, or discontinuing of highways, town ways, or private ways, or laying out of railroads, he is entitled to recover such damage as he has sustained. It is the proper mode of bringing before the court a variety of matters, such as a petition for a new trial or review, or for a writ of habeas corpus, mandamus, or certiorari. 1 Pub. St. c. 150, § 3 ; Pembroke v. 2 Pub. St. c. 175. Abington, 2 Mass. 142 ; Skipwith v. = ^ah. St. c. 190. Hill, 2 Mass. 35. 18 ORIGINAL WBITS AND PROCESSES. [CH. HI. § 21. A biU in equity is in the nature of a petition. It is used when a party has a case which he is advised is redress- able only by an appUcation to a court of equity. It must contain a statement of the case, must be addressed to a court having equity jurisdiction, and must conclude with a prayer for the appropriate relief. It may be inserted in an original writ of summons and attachment.^ § 22. A libel for divorce is in form a petition, and is a pro- cess to obtain a divorce from the bonds of matrimony, or from bed and board, when authorized by law. See post, chapter on Divorce. Most of the writs and processes here mentioned and defined will be more fully treated of in subsequent chapters. § 23. The forms of writs in civil actions are prescribed by statute, and must be pursued in all cases to which they are applicable. In Cooke v. Gibbs,^ Parsons, C. J., says : " Where the legal remedy sought by the plaintiff may be obtained by a writ conforming to these outlines, he must sue out such a writ ; and if the writ he shall sue materially vary from those outlines, the court may ex officio abate it. But when the remedy he is entitled to cannot be obtained by any writ con- forming in its outlines to those prescribed by statute, it has been the ancient and constant practice of the court to grant him a writ, by which he may obtain his remedy. Thus, in Massachusetts, no form of writs of error, of review, or of scire facias, against bail, or of execution in dower, where a woman has been divorced a vinculo, are given by statute ; and yet when the remedy sought required any writ of these kinds, the court have always granted it." The reason of the departure from the forms prescribed by statute must appear in the writ itself.^ § 24. Writs against Executors, &c. — The statutes provide that writs of attachment and executions against executors or administrators for debts due from the deceased testator or 1 Pub. St. c. 151, § 5. 2 Cooke V. Gibbs, 3 Mass. 193 ; WiUington v. Steams, 1 Pick. 497. 8 Howe's Pr. 53. § 27.] OEIGINAL WKITS AND PEOCESSES. 19 intestate shall run only against the goods and estate of the deceased in their hands, and not against their bodies, goods, or estate.^ § 25. Signature and Test of "Writs. — The Constitution of Massachusetts provides that "all writs issuing out of the clerk's office in any of the courts of law shall be in the name of the Commonwealth of Massachusetts ; they shall be under . the seal of the court from whence they issue ; they shall bear test of the first justice of the court to which they shall be re- turnable, who is not a party, and be signed by the clerk of such court." 2 Writs returnable to the Supreme Judicial Court or Supe- rior Court, and all processes in the Superior Court, must be signed by the clerk. § 26. "When must be Returnable. — They must, if required to be served fourteen days before the return-day, be made re- turnable at the court next to be held after the expiration of fourteen days from the date of the writ ; and, if required to be served thirty days before the return-day, must be made returnable at the court next to be held after the expiration of thirty days from the date of the writ ; but writs and pro- cesses of the Supreme Judicial Court may be made returnable at an adjourned term, in like manner as at a term established by law.^ Writs issued by a trial justice must be served not less, than seven nor more than sixty days before the time when they are returnable, and may run into any county in which the defendant maj'- be found.* § 27. Date of Writ. — A writ should be dated upon or be- fore the day that it is in fact issued for service. And to make a writ valid, the day of its date must always be subsequent to the last day of service for the preceding term, and suffi- ciently anterior to the next return-day of the court from which it issues, to allow service of it to be made the required number of days previous to that return-day. The rules in relation to the time required between the service and return 1 Pub. St. t. 166, § 5. 8 Pub. St. c. 161, § 23. 2 Const, pt. 2, c. 6, § 5. * Pub. St. c. 155, § 15. 20 ORIGINAL WEITS AND PROCESSES. [CH. III. of writs will be stated under the head of the Service and Eeturn of Writs. The date of a writ is prima facie evidence of the com- mencement of the action, so as to avoid the effect of the Statute of Limitations, though it be not served until after the statute has begun to run.^ It will be considered as pur- chased at any moment of the day of its date which will most accord with the truth and justice of the case.^ § 28. The declaration is a statement of the cause of action in legal form. In actions of contract and tort it need not be inserted in the writ, unless an arrest is to be made, but if not inserted in the writ must be filed when the writ is entered.^ § 29. Birection to an Officer. — All writs and processes should be directed to an officer, by whom they may be legally served. It is always safe to direct a writ to the sheriff or his depu- ties, If it is desired to direct a writ to a constable, the plain- tiff or his attorney should be careful to ascertain that its service by a constable would be legal. If served by an officer who had no authority to serve it, the service would be void. Wliere a writ is not properly directed, but has been prop- erly served by a person duly authorized to serve it, an amend- ment may be allowed.* In cases where sheriffs or their deputies may serve the writ at all, any writ may be directed to the sheriffs or their deputies of all the counties in the State ; and service of the writ may then be made in all or any of the counties. And there seems to be no reason why, if, after service of the writ has been made in any one or more counties originally named in the direction to the officer, the plaintiff should require to have the same served in any one or more other counties, he may not add directions to the sheriffs, &c., of such other counties, and cause the writ to be served there ; and this at any time before service has been completed by leaving the 1 Bunker v. Shed, 8 Met. 150; Gard- ' Put. St. c. 167, § 7. ner v. "Webber, 17 Pick. 407. < Hearsey v. Bradbury, 9 Mass. 92. 2 Badger v. Phiuney, 15 Mass. 364. ^ Howe's Pr. 94. § 30.] ORIGINAL WRITS AND PROCESSES. 21 When the common blank form of writ issued from the clerks of the courts having jurisdiction throughout the State contains a direction in these words, substantially, " To the sheriffs of our several counties or their deputies," if the writ is to be served by either of those officers, no other direc- tion is required. If the writ is within a constable's jurisdiction, and it is intended that it shall be served by that officer, the words " or to any constable of the town or towns of," &c., should also be inserted without striking out the preceding ones. But if the writ cannot be served by the sheriff or his deputy, the printed words should be stricken out, and a direction to the officer by whom it is intended to be served, be inserted. When the writ is legally directed to several officers in the same county, it may, of course, be served, by either of them. § 30. When and where Returnable. — "When an action is brought in the Supreme Judicial Court or Superior Court, if all the persons named in the writ as trustees dwell or have their usual places of business in one county, the writ shall be returnable in such county ; otherwise, it may be returna- ble in any county in which either of them dwells or has his usual place of business, without regard to the domicile of the other parties." ^ It will make no difference if the only person summoned as trustee be afterwards discharged ; but if his name be origi- nally inserted, for the purpose of giving the court of a par- ticular county jurisdiction, and with a knowledge that he is not a trustee, it may be pleaded in abatement of the suit, either by the principal or by the trustee.^ But it cannot be pleaded in bar,^ nor inquired into on motion.* The statutes provide that " No person shall be held to an- swer as a trustee in an action before a trial justice, or before a police or district court, in any other county than that in which he dwells or has his usual place of business ; and if a person summoned as trustee before such a justice or court is 1 Pub. St. c. 183, § 3. ' Dunning v. Owen and Tr., 14 Mass. 2 Jacobs W; Mellen and Trs., 14 Mass. 157. 132. And see Barker v. Taber and Trs., * Davis v. Marston and Tr., 5 Mass. 4 Mass. 81. 199. 22 ORIGINAL WEITS AND PKOCESSES. [CH. III. out of the county at the time of the service of the original writ on him, and does not return before the final judgment in the suit, he shall not be chargeable as trustee." ^ §31. Amendments. — The practical importance of errors or irregularities in the forms of writs is greatly diminished by the liberality with which amendments are now allowed, both in form and substance .^ See chapter on Amendments. 1 Pub. St. c. 183, § 4. 2 Pub. St. c. 167, § 43. § 2.] TRUSTEE PKOCESS. 23 CHAPTER IV. TEtrSTEB PEOCESS. § 1. The object of this process is to enable creditors to reach and appropriate such goods, effects, and credits of their debtors as may be so intrusted and deposited in the hands of others that the same cannot be attached by the ordinary process of law. By the process, the person in whose hands the property of a debtor is so intrusted or deposited is summoned, in an action by the creditor against the debtor, to answer or disclose what property, if any, is so held by him. § 2. The Trustee. — The person so summoned is called a trustee. If the trustee does not appear in the case and make answer or disclosure, he is defaulted, and charged on his default. If he does appear and answer, he is charged or dis- charged, as the law and the facts disclosed in his answer may require, and is allowed his costs. If it appears that the trustee has in his possession property of the principal defend- ant liable to be held by this process, and another person claims it by assignment or otherwise, such claimant to the property may be made a party to the suit, and his title to such property tried and determined. If the claimant does maintain his title to the property, judgment is rendered ac- cordingly, and the trustee is discharged. If the claimant does not maintain his title, judgment is so entered, and the trustee is charged for the property so held by him, and becomes liable therefor to the plaintiff, in the manner provided by statute. This is a mere outline of the proceedings, which are given more fully in the following pages.^ 1 As to form of writ, see post, chapter on Service and Betum of Writs. And as to service of the writ, see ante, p. 14. 24 TKUSTEE PEOCESS. [CH. IV. § 3. In ■what Actions Trustee Process may be used. — It is provided by statute that " all personal actions, except actions of replevin and actions of tort for malicious prosecution, for slander either by writing or speaking, and for assault and battery, may be commenced by trustee process." ^ An action of tort in the nature of trespass quare clausum fregit is a personal action, and may be commenced by trustee process returnable in the county where the trustee lives, although that is not where the land lies.^ § 4. 'What Parties may be summoned as Trustees. — The stat- utes provide that " any person or corporation may be sum- moned as trustee of the defendant " in this process.^ It is held that cities, towns, and counties are liable to be summoned as trustees.* A county is not, however, charge- able as trustee for the fees of a juryman,^ but is chargeable in trustee process for compensation due to a messenger in charge of its court-house, under appointment of the county commissioners at a fixed salary, ordered to be paid from the county treasury .8 § 5. Non-resident, 'virhen may be summoned. — The statutes provide that a person who is not a resident of the Common- wealth, or a corporation which is not established under its laws, shall not be so summoned unless he or it has a usual place of business in the Commonwealth.'' It is held that a railroad corporation created by the laws of another State, which has an office in Massachusetts, for the convenience of its stockholders, and for the better manage- ment of its finances and other business, where its principal officers are to be found, and where it carries on such business as is usually carried on in the office of the president and treasurer of a railroad corporation, has a usual place of busi- ness in this State within the meaning of this statute, and may be summoned as trustee by process returnable in this State served upon its treasurer.^ 1 Pub. St. c. 183, § 1. 8 Adams v. Tyler, 121 Mass. 380. 2 Way V. Dame, U Allen, 357. ' Pub. St. c. 183, § 1. 3 Pub. St. c. 183, § 1. 8 National Bank of Commerce v. * Adams v. Tyler, 121 Mass. 380. Huntington, 129 Mass. 444. * Williams v. Boardman, 9 Allen, 570. § 7.] TKUSTEE PROCESS. 25 § 6. What may be attached by Trustee Process. — The goods, effects, or credits of the defendant when deposited in the hands or possession of another person so that they cannot be attached by the ordinary process, may as a general rule be attached by the trustee process. The statutes provide as follows : — " When a person who is summoned as trustee has goods, effects, or credits of the defendant intrusted or deposited in his hands or possession, such goods, effects, and credits shall be thereby attached and held to respond to the final judgment in the suit, in like manner as goods or estate attached by the ordinary process, except " as otherwise provided by statute. " Debts, legacies, goods, effects, or credits due from or in the hands of an executor or administrator as such may be attached in his hands by trustee process. " A dividend on an estate of an insolvent debtor, if it is not upon a claim for wages which would not have been attachable in the hands of the original debtor, may, after such dividend has been declared, be so attached in the hands of the assignee. " Funds, credits, or dividends due from or in the hands of receivers appointed by a court may be so attached after an order has been made for their distribution. " Any money or other thing due to the defendant may be attached as herein mentioned before it has become payable, if it is due absolutely and without any contingency ; but the trustee shall not be compelled to pay or deliver it before the time appointed by the contract. "If a person summoned as trustee has in his possession goods, effects, or .credits of the defendant, which he holds by a conveyance or title that is void as to the creditors of the defendant, he may be adjudged a trustee, although the defendant could not have maintained an action therefor against him." ^ § 7. 'What cannot be attached by Trustee Process. — The statutes also provide that " no person shall be adjudged a trustee in either of the cases following : — 1 Pub. St. c. 183, § 21-26. 26 TRUSTEE PEOCESS. [CH. IV. " First, By reason of having drawn, accepted, made, or in- dorsed a negotiable bill, draft, note, or other security which is payable on time and not overdue ; " Second, By reason of any money or other thing received or collected by him as a sheriff or other officer by force of an execution or other legal process in favor of the defendant in the trustee process, although the same has been previously demanded of him by the defendant ; " Third, By reason of any money in his hands as a public officer, and for which he is accountable to the defendant merely as such officer ; " Fourth, By reason of any money or other thing due from him to the defendant, unless it is at the time of the service of the writ on him due absolutely and without depending on any contingency ; " Fifth, By reason of a debt due from him on a judgment, so long as he is liable to an execution thereon." ^ Sixth, " By reason of any moneys or credits which are due for wages of the personal labor or services of the wife or minor children of the defendant." ^ A trustee is allowed to set off mutual demands between himself and the defendant.^ § 8. What Wages are ezempt from Attachment. — The stat- utes provide that " when wages for the personal labor and ser- vices of a defendant are attached for a debt or demand other than for necessaries furnished to him or to his family, there shall be reserved in the hands of the trustee a sum not exceed- ing twenty -dollars, which shall be exempt from such attach- ment ; and when such wages are attached on a demand for such necessaries, there shall be so reserved a sum not exceed- ing ten dollars."* When wages are attached, defendant may make a tender.^ § 9. 'When funds are assigned to secure a debt, the statutes provide that " if it appears that the claimant holds a valid assignment from the principal defendant, and that such as- 1 Pub. St. c. 183, § 34. * Pub. St. c. 183, § 30. 2 Pub. St. c. 183, § 29. 6 Pab. St. c. 183, § 31. s Pub. St. t. 183, § 27. § 10.] TRUSTEE PROCESS. 27 signment is held only as security for a debt, the court shall, upon the request of the plaintiff, proceed to ascertain and determine the amount due upon such debt at the time of the service of process upon the trustee ; and the excess in the hands of such trustee, above the amount so found due, shall be subject to be held by the trustee process in the same man- ner and with the same effect as if no such assignment ex- isted ; or the court may proceed in the case in the manner provided by sections eighty, eighty-two, and eighty-three of chapter one hundred and sixty-one of Public Statutes in relation to the attachment of personal property that is sub- ject to mortgage." ^ § 10. Assignment of Future Earnings. — It is provided by statute that "no assignment of future earnings shall be valid against, a trustee process, unless, before the service of such process upon the alleged trustee, the assignment has been recorded in the office of the clerk of the city or town where the assignor resides at the time of such record ; and the pro- visions of section four of chapter one hundred and ninety- two shall apply to such assignments. Such record shall not affect the rights or liability of the person or corporation from whom such earnings are due, otherwise than as is provided in this section." ^ The word " earnings," as used in this statute, is not limited to wages, but may include compensation for expenditures incurred or materials furnished under one contract, together with work done or services rendered.^ But it cannot upon any construction, however liberal, include rents payable under an ordinary contract of lease which requires no personal services on the part of the lessor.* In a trustee process a duly recorded assignment of wages by the defendant is valid against an attaching creditor, if the assignment is delivered in good faith, and there is no uncertainty as to the fund intended to be assigned or the 1 Pub. St. c. 183, § 38; Warren v. ' Jenks v. T)jer, 102 Mass. 235; Sullivan, 123 Mas.s. 283. Somers v. Keliher, 115 Mass. 165. " Pub. St. c. 183, § 39. * Kendall v. Kingsley and Tr., 120 Mass. 94, 95. 28 ' TRUSTEE PEOCESS. [CH. IV. identity of the assignor .^ The assignment of future wages for a certain time need not state what it was intended to secure, and is not limited by the formal recital of consideration.^ § 11. When the Record of an Assignment is not Construc- tive Notice. — The fact that an assignment of future earnings of a workman has been recorded as required by the statute, is not constructive notice of the assignment to his employer who has been summoned as trustee in a, suit against the assignor. Actual notice of the assignment should be given to the party from whom the earnings are to be due.^ § 12. The trustee process is not the proper remedy when the goods and effects of the defendant, in the possession of an- other person, may be attached by the ordinary process. But if the person intrusted with them has locked them up and detains the key, or claims a right to retain them, by virtue of a supposed lien, and does not expose them to attachment, they may be attached by this process.* Where lands have been fraudulently conveyed, the trustee process is not the proper form of remedy, as the grantee is not, by the terms of the statute, chargeable by reason of land of the debtor in his possession.^ The proper course of proceeding in such case would be to attach the land as the property of the fraudulent debtor. But if one to whom real estate has been conveyed by his debtor as security for his debt sells the same, he is liable as trustee of the debtor for the surplus.^ Where the assignment or conveyance of the goods, effects, or credits in the hands of a trustee is fraudulent, the trustee process is the proper remedy.' Where some of the members of a partnership live within the State, funds in the hands of the company will be held by the trustee process, although other members reside in other States.^ 1 Ouimet v. Sirois, 124 Mass. 162. 6 How v. Field and Tr., 5 Mass. 390. 2 Murphy v. Murphy and Tr., 121 « Pierson v. Weller, 3 Mass. S64. Mass. 167. ' Hastings v. Baldwin, 17 Mass. 552, 3 Corbett v. Fitchburg E. E. Co., 110 558. Mass. 204. 8 Parker v. Danforth, 16 Mass. 299. * Parker v. Kinsman, 8 Mass. 486. § 12.] TRUSTEE PROCESS. 29 Money in the hands of an attorney collected for the use of the principal defendant may be attached by the trustee pro- cess,i but a check drawn payable to the order of the attorney and received by him in satisfaction of an execution in favor of his client, but not cashed or accepted, cannot be attached by the trustee process.^ Goods and effects of a debtor may be physically within the reach of an officer to attach, yet the creditor may avoid, by the trustee process, many difficulties which might occur by re- course to the common form of capias and attachment.^ Thus, if the trustee claims to have a lien upon the property, or to hold it as a pledge ; or where goods have been consigned to and received by the trustee to sell as a factor ; * or if they were fraudulently transferred to defeat or delay creditors, — though the goods are not concealed in any of these cases, and might be attached, yet a trustee process will lie ; and it seems to be peculiarly proper in the instance last mentioned, because by this method of proceeding the fraudulent holder of the goods can promptly be put upon his oath, and be compelled to submit to an examination. So if a person remove the goods to his house, and claim to hold them as a pledge, they will be liable to attachment in his hands by this process, though they might have been attached under the ordinary process. And, in general, it is not necessary that the goods should have come into the hands of the trustee by any contract with, or even by the authority or consent of, the debtor, to render the goods liable to be attached in his hands, under this process : it is sufficient if the trustee pretend to hold them under any claim against the rights of an attaching creditor.^ But the trustee must have the actual possession or control of the property, so that he may be able to turn it out on exe- cution, or he cannot be charged on account of it. There- fore, one to whom property is assigned, of which he has only 1 Cook V. Holbrook and Tr., 6 Allen, « Burlingame o. Bell, 16 Mass. 318 ; 572. Thomas u. Goodwin and Tr., 12 Mass. 2 Hancock v. Colyer, 99 Mass. 187. 140 ; Swett v. Brown and Tr., 5 Pick. 8 Howe's Pr. 64. 178. * Grant v. Shaw, 16 Mass. 341. 30 TRUSTEE PROCESS. [OH. IV. the constructive possession, as in case of a ship and cargo at sea, is not liable as trustee under this process.^ Guardians are not chargeable as trustees for debts of their wards.^ § 13. Venue. — When the action is brought in the Supreme Judicial Court or Superior Court, if all the persons named as trustees in the writ dwell or have usual places of business in one county, the writ must be returnable in such county, other- wise it may be returnable in any county in which either of them dwells or has his usual place of business, without regard to the domicile of the other parties.^ A trustee process brought in a county in which no one of the trustees dwells, will be dismissed on motion of either a trustee named in the writ or of the principal defendant.* If a person summoned as trustee out of his own county does not appear, but is defaulted, he is liable to a scire facias in that county, especially if he does not move to dismiss the latter suit until after several terms of court.^ § 14. Answer of Trustee. — Every person summoned as trustee in the Supreme Judicial Court or Superior Court must appear and file his answer within the first ten days of the return term of the writ, if the court sits so long, or otherwise before the adjournment of the court, unless the court for good cause shown allows further time therefor.^ § 15. Such answer must be sworn to by the trustee, and must disclose as plainly, fully, and particularly as practica- ble what goods, effects, or credits of the defendant, if any, were in his hands or possession at the time of the service of the writ upon him.^ §16. Examination of Trustee. — The plaintiff may from time to time examine the supposed trustee upon written in- terrogatories filed in the clerk's office. The answers thereto must be sworn to and filed in the clerk's office within seven days after notice to the trustee or to his attorney of the filing 1 Andrews v. Ludlow and Tr., 5 < Lewis v. Denney, 4 Ciish. 588. I'ick. 28. 6 Murphy v. Merrill, 12 Cush. 284. 2 Gassett v. Grout and Tr., 4 Met. « Pub. St. o. 183, § 10. 486. 7 pab. St. c. 183, § 11. 8 Pub. St. c. 183, § 3. § 21.] TRUSTEE PROCESS. 31 of the interrogatories, unless the court otherwise orders. If answers are not so filed, the court may pass such order as the case may require.^ § 17. A Trustee may correct Errors in his Answer. — Where a person summoned as trustee discovers that he has in his answer stated a fact incorrectly or in terms which would ad- mit of an inference or implication not intended by him, the court may allow him an additional answer without further interrogatory, correcting or qualifying such supposed errone- ous answer.^ For forms of answer see post, chapter on Forms. § 18. How Corporations may answer. — Corporations sum- moned as trustees may appear and answer by their cashier, treasurer, secretary, or such other oiBcer as they shall appoint or as the court or justice shall require to attend for that pur- pose. The answer and examination on oath of such officers or persons shall be received as the answer and examination of the corporation. 2 § 19. A Trustee may refer to the Court the Question of his Liability. — A trustee may admit in his answer that he has in his hands goods, effects, or credits of the defendant, and state that he wishes to refer to the court the question of his lia- bility to be charged as his trustee. In such case he may make a written declaration on oath of such facts as are mate- rial. The plaintiff may then examine him on written inter- rogatories, the answers to which must be sworn to, and in every case the declaration, interrogatories, and answers must be filed with the court or justice.* § 20. Allegations of Facts. — The answers and statements sworn to by a trustee are considered as true in deciding how far he is chargeable, but either party may allege and prove any facts, not stated nor denied by the trustee, that may be material in deciding that question.^ § 21. Trial of Facts on such Allegations. — Any question of fact arising upon such additional allegations may be tried and 1 Pub. St. c. 183, § 12. 8 Pub. St. c. 183, § 16. 2 Carrique v. Sidebottom and Tr., 3 * Pub. St. c. 183, § 15. Met. 297. 6 Pub. St. c. 183, § 17. 32 TKtrSTEE PROCESS. [CH. IV. determined by the court or justice, or may be submitted to a jury in such manner as the court shall direct.^ § 22. Depositions may be used at Trial by Leave. — Upon the trial of a question arising upon such additional allegations, any part of the testimony may be given by depositions taken and reduced to writing in the usual form and filed in the case, or orally, as the court shall direct.^ § 23. Additional Answers maybe filed. — A trustee may by leave of the court file additional answers even after the plain- tiff has filed allegations of facts not alleged or denied by him.^ Answers of the trustee so filed are conclusive, and if they fully deny the plaintiff's allegations, there is no issue on such allegations to be tried and determined by the court or sub- mitted to a jury.* A supposed trustee is under no obligation to disclose trans- actions disparaging his title to real estate.^ § 24. ■When a Trustee may be defaulted. — When a person duly summoned as trustee neglects to appear and answer to the suit as herein provided, he may be defaulted and adjudged a trustee.^ § 25. Liability of Trustee for False Answers. — If a person summoned as trustee, or the executor or administrator of such person, or if an officer, agent, or other person, who appears and answers for a corporation so summoned, upon his exami- nation on oath, knowingly and wilfully answers falsely, he thereby becomes liable, out of his own goods and estate, to pay to the plaintiff in the trustee process, or to his executors or administrators, the full amount due on the judgment recov- ered therein, with interest therefor, to be recovered in an action of tort.'^ § 26. Claimant of Funds. — If it appears that any goods, effects, or credits in the hands of a supposed trustee are claimed by another person by force of an assignment from the defendant or otherwise, the court or justice is required 1 Pub. St. c. 183, § 18. 6 Moore v. Towle, 38 Me. 133. 2 Pub. St. c. 183, § 37. « Pub. St. u. 183, § 19. 3 Collins V. Smith, 12 Gray, 431. ' Pub. St. u. 183, § 20. * Winsted Bank v. Adams, 97 Mass. 110. § 29.] TEXJSTEE PKOCESS. 33 to permit such claimant to appear and maintain his right. If he does not voluntarily appear, notice for that purpose may be issued and served on him in such manner as the court or justice shall direct. § 27. Proceedings and Trial as to Claimanfs Claim. — If such claimant appears, he may be admitted as a party to the suit so far as respects his title to the goods, effects, or credits in question, and may allege and prove any facts not stated nor denied by the supposed trustee ; and such allegations shall be tried and determined by the court or justice, or may be submitted to a jury in such manner as the court shall direct.^ § 28. An Assignment of Funds prior to the Attachment. — A bona fide assignment made in good faith for a valuable consideration before an attachment by trustee process, though without notice to the debtor, gives the assignee a title prefer- able to that of the attaching creditor; and such assignment being made known to the trustee and being disclosed by him in his answer, entitles him to a discharge.^ It is as much the duty of the plaintiff in a trustee process to bring a claimant before the court, as it is the trustee's duty.3 § 29. When a Trustee is charged for Goods or Chattels. — The statutes provide that " when a person is charged as trustee by reason of goods or chattels other than money, which he holds or is bonnd to deliver to the defendant, he shall deliver the same,, or so much thereof as may be neces- sary, to the officer who holds the execution ; and the goods shall be sold by the officer, and the proceeds apphed and accounted for in the same manner as if they had been taken on an execution in common form." * This provision does not apply to cases of attachments by trustee process of goods in the possession of common carriers in the course of transportation,* nor to contracts for the delivery of goods at any place out of the State.® 1 Pub. St. c. 183, § 35, 36. * Pub. St. c. 183, § 63. ' Warren ». Copelin, 4 Met. 594 ; ^ Adams v. Scott and Tr., 104 Mass. Ammidown v. Wheelock, 8 Pick. 470. 164. 3 Jlichards u. Stephenson, 99 Mass. « ciark v. Brewer, 6 Gray, 320; Ad- 311. ams V. Scott, 104 Mass. 164. 3 34 TRUSTEE PEOCESS. [CH. IV. § 30. When Trustee has a Mortgage. — " When it appears that goods in the hands of a person summoned as trustee are mortgaged or pledged, or in any way liable for the pay- ment of a debt to the person so summoned, the attaching creditor may be allowed, under an order of the court or justice for that purpose, to pay or tender the amount due to the trustee, who shall thereupon deliver the goods in the manner before provided to the officer who holds the exe- cution.i If the goods are held for any other purpose, and the contract or condition can be performed, the court or justice may make an order for the performance thereof by him." ^ § 31. The Municipal Court of the City of Boston have adopted the following rules : — " If a person summoned as trustee shall not, during the first term, appear and file his declaration that he has no goods, effects, or credits, and his submission to examination on oath, nor his admission that he has the same, and his declaration upon oath of such facts as are material, he may be defaulted and adjudged trustee, unless further time is, for reasons, allowed by the court. " If such supposed trustee shall not file in the clerk's office answers under oath, to the plaintiff's interrogatories, within seven days after notice of the filing of the same, nor as the court may otherwise order, he shall upon motion be defaulted and adjudged trustee, unless further time is, for reasons, allowed by the court. " Any person claiming in court funds in the hands of a trustee, shall file a statement of the particulars of his claim when he enters his appearance, and shall have the opening and close." ^ § 32. As to proceedings in Police, Municipal, and District Courts, and before trial justices in trustee process, special pro- visions are made by statute referred to in note.* As to costs, see chapter on Costs. § 33. Judgment. — The judgment as between the plaintiff and defendant is the same as in an action by a writ of com- 1 Pub. St. c. 183, § 66. 8 Rule 30. 2 Pub. St. c. 183, § 67. * Pub. St. c. 183, § 13-15. § 34.] TKUSTKE PROCESS. 35 mon attachment. If the judgment be in favor of the princi- pal defendant, the alleged trustee will thereby be discharged with costs against the plaintiff. If the judgment be for the plaintiff against the principal defendant, and the trustee be charged as trustee of the defendant, the trustee will be allowed to retain his costs out of the funds in his hands, the cost to be taxed by the clerk ; and the plaintiff will have an execution for the amount of his damages and costs, against the goods, effects, and credits of the defendant in the hands or possession of the trustee. When the trustee is charged, it is not necessary to specify in the judgment the sum for which he is chargeable. If the plaintiff prevails against the principal defendant, and the trustee be discharged, he will recover costs against the plaintiff.^ § 34. Procedure after Judgment. — If a trustee is charged in the trustee process, the plaintiff, in order to save his lien on the funds in the hands of the trustee, must obtain his execu- tion, and have a legal demand made on the trustee within thirty days after final judgment, in the manner required by statute.'^ If on such demand the trustee does not pay over the funds in his hands to the oflBcer making such demand on the execution, the plaintiff may sue out a writ of icire facias against him to obtain a judgment and execution against him and his property for the sum remaining unsatisfied on the execution.^ See post, chapter on Scire Facias. 1 Pub. St. c. 183, § 45-49. « Pub. St. c. 183, § 50. 2 Pub. St. c. 183, § 45-47. 36 WEITS AND PETITIONS FOR REVIEW. [CH. V. CHAPTER V. WRITS AND PETITIONS FOR REVIEW. § 1. Judgment may be reviewed. — Final judgments in civil actions may be re-examined and tried anew on a writ of review or on a petition for a review.^ The Supreme Judicial Court is empowered by statute to review its own judgments and judgments of the Superior Court; and the Superior Court is empowered concurrently with the Supreme Judicial Court to review judgments of its own court and judgments rendered by a trial justice and by police, municipal and district courts, in any case in which a judgment might be granted if the judgment had been ren- dered in the Superior Court.^ § 2. "What Actions may be reviewed. — The rule is stated by Mr. Dane, that, to entitle a party to a writ of review, " the action must have been commenced by writ, and not by petition or complaint, and must be a civil action." ^ This rule has been recognized in several decisions of the full court. It has been held that a review could not be granted in a petition for partition ; * nor of a judgment upon an appeal from a court of probate, upon a question df the sanity of a testator ; ^ nor of a judgment on a report of referees, upon a submission before a justice of the peace ; ® nor to revise a decree dismissing a libel for divorce.'' A review has been granted in case of scire facias against bail,^ and in a case of scire facias against a trustee in a trustee 1 Pub. St. c. 187, § 16. 6 Pope v. Pope, 4 Pick. 129. 2 Pub. St. c. 187, § 22, 25. As to « gtone v. Davis, 14 Mass. 360. form of writ, see ante, p. 14. ' Lucas v. Lucas, 3 Gray, 136. 3 6 Dane Abr. 453, 454. 8 Thayer v. Goddard, 19 Pick. 60. * Borden v. Brown, 7 Mass. 93. § 2.] WRITS AND PETITIONS FOR REVIEW. 37 process ; ^ and on the petition of a claimant of funds in the hands of persons summoned as trustees under the trustee process after judgment for the plaintiff.^ In Hubon v. Bousley,^ which was a petition to enforce a mechanic's lien inserted in a writ, Gray, C. J., says : " A writ of review under the statutes of the Commonwealth may be granted of a final judgment in any civil action commenced by writ. It was because the proceedings were not commenced by writ, that a review was denied in the cases cited for the respondent of awards upon submissions before a justice of the peace, judgments upon petitions for partition, and decrees of probate or divorce." " In an action commenced by writ, it is no objection to granting a review, that the pleadings are not in the same form as in ordinary actions at law, or that no trial by jury is had ; as, for instance, in case of a judgment in trustee process charging or discharging a trustee upon his answer." It was held that the final judgment in this case was subject to be reviewed by a writ of review under General Statutes, c. 146. The Public Statutes make no change affecting the question here considered. A review of a judgment against a defendant on his default, in an action of which, by a mistake in the service of the origi- nal writ, he had no knowledge until after judgment, may be granted on his petition, filed within one year after he has notice of the judgment, although more than a year after the judgment was rendered, and although, when it was rendered, he was in the State ; * and in such case evidence is admissible to contradict an official return, which states that he gave the party a summons for his appearance, at court, and though the record shows that the petitioner appeared in the original action by attorney. Evidence is admissible that such ap- pearance was at the request of a third person, and without the petitioner's knowledge.^ A judgment for the respondent for costs, upon a petition ^ Ex parte Packard, 10 Mass. 426. * James v. Townsend, 104 Mass. 367; 2 Fuller V. Storer, 111 Mass. 281. Pub. St. c. 187, § 22. » 123 Mass. 368. 6 Brewer v. Holmes, 1 Met. 288. 38 WEITS AND PETITIONS FOE KEVIEW. [CH. V. for review, is not a bar to a new petition for review, filed within a year from the rendering of the original judgment.-' It has been held that no more than one review could be had under Statute of 1788, e. 11, and 1791, c. 17, but that, after a verdict on a review thus granted, the court may set it aside, for any reasonable and legal cause, and direct a new trial.^ The court have authority to grant reviews of actions, in which judgments have been rendered upon a case stated, where the parties have been misled into an agreement, with- out any laches on their part, or where any fact has been mis- stated or omitted. ^ So a review may be granted at the instance of a trustee, where a judgment upon scire facias has been rendered against him.* Where a petitioner for review has had no trial, but has been defaulted, the court will grant a review on slight evi- dence, although the evidence be contradicted by testimony on the part of the respondent ; ^ but it is usual to require at least prima fade evidence that injustice has been done, be- fore a review, in such case, will be granted.^ § 3. What a Petition for Review must state. — The peti- tion must set forth concisely and distinctly the several causes upon which the petitioner rests his claims for a review ; and an affidavit by him of the truth of those facts must be filed, before the court will issue an order of notice to the other party .'^ It is not, however, necessary to recite at length the dec- laration and other pleadings in the original suit.^ § 4. What Copies must be filed. — The plaintiff in review must produce and file in court certified copies of the writ, judgn^ent, and all proceedings in the former suit, and the originals or copies of all depositions and other papers used and filed therein.* § 5. Form of Writ. — The writ of review must be substan- tially as follows : — 1 Hayes v. Collins, 114 Mass. 54. ^ CoflSn v. Abbot, 7 Mass. 252. ^ Ruggles V. Freeland, 6 Mass. 513. ^ Judd ». Buchanan, 4 Mass. 579. ' Stockbridge v. West Stockbridge, ' Willard v. Ward, 3 Mass. 24. 13 Mass. 302. 8 Pub. St. c. 187, § 27. * Packard, Ex parte, 10 Mass. 426. » Pub. St. c. 187, § 28. § 9.] WRITS AND PETITIONS FOE EEVIEW. 39 " Summon A. to answer to B. in the review of an action of contract (or tort) brought by said A. against said B., in which action said A., by the consideration of the justices of our court, begun and held at C. within and for our said county of M. on the day of , recovered judgment against said B. for the sum of dollars' debt (or damages), and dollars' costs, which judgment said B. says is wrong and erroneous." Or the former judgment may be briefly described in any manner deemed sufficiently certain according to such rules as the courts may prescribe.^ , § 6. Service of the Writ. — The writ must be served in the same manner as an original writ, except that when the de- fendant is not an inhabitant of the Commonwealth, or is not found therein, the writ may be served on the person who ap- peared as his attorney in the original suit, and the court may continue the cause to enable the absent party to appear and answer.^ § 7. Indorsement of Writs of Review, &c. — Writs of re- view and petitions for review must be indorsed in the same manner as original writs, and all regulations con- cerning the indorsement of original writs apply to writs of and petitions for review.^ § 8. Property of Defendant maybe attached. — If the writ is sued out by the original plaintiff, he may cause the defend- ant's goods and estate to be attached as they might have been in the original action ; and for this purpose the writ of review may be so framed as to require an attachment in the com- mon form, and that the defendant be summoned. No attach- ment made or bail taken in the original suit will be liable to satisfy the judgment rendered on the review.* § 9. Pleadings in Review. — The statutes provide that " if the former judgment was rendered without an issue, the par- ties shall plead or answer upon the review in like manner as they might have done in the original suit, and the cause 1 Pub. St. c. 187, § 27. s Pub. St. c. 187, § 38. 2 Pub. St. c. 187, § 29. 4 Pnb. St. c. 187, § 30. 40 "WRITS AND PETITIONS FOR REVIEW. [CH. V. shall be tried upon any issue of fact or law joined upon such pleadings or answer, and each party may produce any legal evidence, whether produced in the former suit or not." ^ § 10. Hearing on the Petition. — Upon the hearing, the peti- tioner will be confined to the facts set forth in his petition.^ The petitioner, at the hearing, offers his evidence to prove the facts, and the other party may offer evidence to rebut them, and upon the evidence presented to the court, and the law, the petition will be granted or refused. And upon the hearing, the affidavit of the petitioner is admissible to prove facts known only to himself.^ The testimony of witnesses may be taken either viva voce or by deposition.* The power of the court to impose terms on the petitioner can be exercised only at the time when his petition for a review is granted.^ § 11. When judgment against an absent defendant is ren- dered as provided in chapter one hundred and sixty-four of the Public Statutes, he may at any time within one year after the judgment sue out a writ of review as a matter of right.^ § 12. Issue to be tried, and how tried. — If an issue of fact was joined in the original suit, the cause will be tried on the review upon the same issue, except that the court may allow amendments of the original declaration and other pleadings, as might have been done in the original suit ; and if a differ- ent issue is joined in consequence of such amendments, the cause will be tried upon such new issue.^ Consequently, a party cannot on review avail himself of a discharge in bankruptcy obtained by him under proceedings commenced after the rendition of judgment in the original action ; ^ but it is held otherwise when the proceedings in bankruptcy were commenced during the pendency of the origi- nal action, and the defendant had moved for a continuance of the action to enable him to plead his discharge.^ In the case of Safford v. Knight, i" Gray, C. J., said : " A ' Pub. St. t. 187, § 32. 6 Pub. St. c. 187, § 21. 2 Simmons v. Apthorp, 1 Mass. 99. ' Pub. St. c. 187, § 31. " Rogers v. Hill, 4 Mass. 349. s -poster v. Plummer, 3 Cash. 381. * Gray v. Moore, 7 Gray, 215, 9 Todd v. Barton, 117 Mass. 291, 293. ' Williams v. Hodge, 11 Met 266. i" 117 Mass. 281, 284. § 14] WRITS AND PETITIONS FOE EEVIEW. 41 review under our statutes is equivalent to a new trial after judgment. Everything is open upon the review which might have been suggested in the original action. The original judgment is not set aside, but stands until the judgment in the review, which may afl&rm, reverse, or modify the for- mer judgment in whole or in part, or make such other dispo- sition of the case as may be necessary to secure the just and legal rights of all parties." The trial on the writ of review is conducted in the same manner as the trial on the original writ. § 13. stay or Supersedeas of Execution. — : " After the ren- dition of judgment in a civil action, if the execution has not been satisfied, the court or justice, upon the petition of the defendant, may order a stay or supersedeas of such execution, if the petitioner gives to the adverse party security to the satisfaction of the court or justice, with condition that he will forthwith prosecute a review to final judgment and will satisfy such execution as may be issued against him on the review, or that, in case a special judgment shall be entered in accordance with section twenty-four of chapter one hun- dred and seventy-one of the Public Statutes, he will pay to the plaintiff within thirty days after the entry of such judgment the sum for which the same shall be entered." ^ " The court or justice may also order a stay or supersedeas without security when the defendant has had no actual knowledge, before judgment was entered, of the pendency of the action against him."^ The execution cannot otherwise be stayed or superseded by the writ of review.^ The word " defendant " in the statute above quoted refers to the party against whom the judgment sought to be reversed is rendered, and not to the defendant in the origi- nal action.* § 14. Review on Petition. — Another mode of obtaining a review of an action as before stated is by a petition for a review, without the intervention of a writ of review. The 1 Pub. St. t. 187, § 39. * Leavitt v. Lyons, 118 Mass. 470- 2 St. of 1882, c. 249. 472. 8 Pub. St. c. 187, § 39. 42 WEITS AND PETITIONS FOE REVIEW. [OH. V. petition may be filed in the Supreme Judicial Court or Su- perior Court ; and the statutes provide that if upon such petition where the execution has not been satisfied in whole or in part, the court is of opinion, after notice to the adverse party, that there is sufficient cause for a review, it may vacate said judgment, stay and supersede any execution thereon, and order the action to be brought forward on the docket of the court, to be tried and disposed of as if said judgment had not been rendered.^ § 15. Proceedings on such Petition. — " Such petition shall be filed within one year after the recovery of the judgment, and shall be entered in the county in which the judgment was rendered, and, if the court is not then in session therein, it shall be filed in the clerk's office in said county ; and after said entry or filing, any justice of the court may order notice of said petition returnable at the next term of said court to be held in said county, and may issue a stay or supersedeas of any execution on said judgment, and an order for a return of such execution to the clerk's office with a certificate of any proceedings thereon." ^ § 16. Bond of Petitioner. — " The petitioner shall, before the vacation of said judgment and before the stay or superse- deas of said execution, give to the adverse party a bond with sufficient sureties, to be approved by a justice of said court, and with condition that, if the said judgment is not vacated upon said petition, the petitioner shall satisfy said judgment and all costs accrued on any execution issued thereon, and that, . if it is so vacated, he shall satisfy the execution that may be issued in favor of the adverse party on any judgment that may be thereafter rendered in said action ; and the court may impose any other reasonable terms upon the peti- tioner." ^ § 17. A Review is discretionary with the Judge. — The peti- tion for a review is addressed to the discretion of the judge to whom it is presented, and his decision thereon can be revised upon exceptions, or report only for erroneous rulings in matters of law.* 1 Pub. St. c. 187, § 17. 8 Pub. St. c. 187, § 19. 2 Pub. St. c. 187, § 18. ■* Hayes v. Collins, 114 Mass. 54-56. § 19.] WEITS AND PETITIONS FOE EEVIEW. 43 § 18. Judgment in review will be rendered upon the review as the merits of the case upon the law and the evidence appear to require, although it should be more advantageous to the defendant in review than the original judgment, in like manner as if both parties had brought their several writs of review. The statutes contain specific provisions in relation thereto.^ The prevailing party is entitled to costs.^ § 19. Can a. second petition for revievr be maintained where the judgment on the former petition had been awarded on the merits ? In Hayes v. Collins,^ Hoar, J., says : " If the judgment upon the former petition had passed upon the merits, it might well be held to be a conclusive adjudication that the petitioner was not entitled to have the original judgment reviewed, just as the affirmance of a judgment upon a writ of error is held to be a bar to a second writ of error, for any cause which existed at the time of that judgment." In that case it was held that a judgment for the respondent for his costs upon a petition for a review is not a bar to a new petition for review, — the judgment on the first petition not having been upon the merits.* 1 Pub. St. c. 187, § 34-37. » 114 Mass. 55, 56. 2 Pub. St. c. 187, § 34-37. * 114 Mass. 55, 56. 44 SCIEE FACIAS. [CH. VI. CHAPTER VI. SCIBB FACIAS. § 1. 'Writ of Scire Facias. — In the case of M'Gee V. Bar- ber,^ Chief Justice Shaw said: " Originally, a scire facias was a judicial writ ; and it is so still in its principal characteris- tics. It is so far a judicial writ that it takes up a cause in which other proceedings have been had ; it issues upon some existing record ; and it must issue from the court in which such proceedings have been had, and where such record remains. " The writ being regarded as a judicial writ, it is deemed to be the act of the court and its officers, and consists, in all the introductory part, of a recital of the previous proceedings there appearing. If there is a misrecital in those proceedings, it is deemed to be the misprision of the clerk, and there being the record and proceedings to amend by, it is amendable as of course as well after service as before." § 2. Practically, a. Scire Facias is used as an Original Writ. — It is generally a writ of right,^ and is issued, like original writs, without any previous order of the court, is served on the defendant like an original writ, and in civil cases is required to be indorsed, in cases where an indorsement is required to an original writ. It is made returnable at a term of the court, and entered as an action at the term to which it is returnable.^ § 3. From what Court it may issue. — It can only issue from the court having the record on which it is founded. It must be sued out of the same court where judgment was given, if the record remains there ; or, if it has been removed, then out of the court where the record is.* • 1 14 Pick. 215. See ante, p. 15. ' Clark v. Paine, 11 Pick. 66, 67. * Wilson V. Green, 19 Pick. 433. * Osgood v. Thurston, 23 Pick. 110. § 6.] SCIRE FACIAS. 45 § 4. The declaration in a writ of scire facias must set out all the facts that are necessary to show a right in the plaintiff to the relief prayed for. It is sufficient to set out the facts which constitute the plaintiff's right and the defendant's lia- bility, without stating in terms the liability.^ In a declaration upon a recognizance there ought to be a recital of the condition on which it was given, for no debt is due until the condition is broken, it being in this respect un- like a bond in pais upon condition. And ' in case of a recog- nizance to the Commonwealth, it is indispensable that the breach of the condition should be a matter of record, though in case of a recognizance to an individual the rule may be different.^ § 5. Defendant's Plea or Answer. — Under scire facias the merits of the original judgment cannot be inquired into by the defendant so as to set up a new defence that might have been used in the previous judgment,^ but the defendant may show that he has satisfied the judgment.* The defendant may plead to a scire facias on judgment, nul tiel record, payment, release, or that the execution was levied on his lands, goods, or person.^ On.a second scire facias the defendant cannot plead what he might have pleaded to the first.^ § 6. In what Cases Scire Facias may issue. — The statutes provide that a writ of scire facias may issue to obtain an execution after the time for taking out an execution has expired ; '' to obtain a new execution, when property taken on a previous execution cannot be held ; » on a judgment for penalty of the bond of an executor for a new breach of the condition of the bond on judgments recovered for the penalty of a bond, covenant, or agreement, when there are subsequent breaches ; " on recognizances for debt after three years ; i" against bail for penalty of the bail bond ;" by or against an 1 M'Geet). Barber, 14 Pick. 212. « Cooke v. Berry, 1 Wils. 98. 2 Bridge v. Ford, 4 Mass. 643. ' Pub. St. c. 171, § 17. s WilcoK V. Mills, 4 Mass. 218 ; Hoyt » Pub. St. c. 172, § 53. V. Robinson, 10 Gray, 371. ' Pub. St. u. 171, § 11. 4 M'Carty v. Springer, 3 Penn. 157. ^ Pub. St. t. 193, § 11. 6 2 Tidd's Pr. 830. ^ Pub. St. c. 163, § 7. 46 SCIRE FACIAS. [CH. VI. administrator de bonis non, on a judgment recovered by or against a former executor or administrator.^ Scire facias is the proper remedy against the indorser of writs, in case of the avoidance or inability of the plaintiff to pay the defendant all such costs as he shall recover, and to pay all prison charges that may happen, where the plaintiff shall not support his action.^ It will not lie, however, until the execution has been returned into the clerk's office unsatisfied, and the writ must allege such avoidance or inability .^ Where a debtor had been committed on the execution, and discharged on taking the poor debtor's oath, it was held to be sufficient to entitle the plaintiff to recover against the indorser ; * but where the ofScer answered only that he had committed the debtor to jail, and that he had given bond for the liberty of the prison limits, it was held that it had no tendency to show his avoidance or inability. The return of the officer is not conclusive evidence of the inability of the judgment debtor.^ An officer's return on the execution is in all cases necessary ; but his return is not con- clusive, and, on the trial of the scire facias, any competent evidence will be received to show the ability, or the want of it, of the principal.* . § 7. Scire Facias against a Trustee in Trustee Process. — If a person who is adjudged a trustee does not pay over to the officer, upon demand, goods, effects, or credits sufficient to satisfy the execution, and if the execution is not otherwise satisfied, the plaintiff may sue out from the court in which the judgment was rendered a writ of scire fadas against all or a separate writ against each of the trustees, to show cause why judgment and execution should not be awarded against them or him and their or his own goods and estate for the sum remaining unsatisfied on the judgment against the de- fendant. Such writ may be issued by the court or justice by which the judgment was rendered, although the amount of 1 Pub. St. c. 166, § 13. * M'Gee i>. Barber, 14 Pick. 212. 2 Miller v. Washburn, 11 Mass. 411 ; 6 Thomas v. Washbnrn, 24 Me. 225. WixOQ V. Lapham, .'> Allen, 206. ' Proprietors of Locks, &c. v. Keed, * Buggies V. Ives, 6 Mass. 494. 8 Met. 146. § 8.] SCIRE FACIAS. 47 the debt and costs therein exceeds the jurisdiction of such court or justice. ^ And scire facias lies against the trustee, notwithstanding the death of the principal, unless the estate has been repre- sented insolvent.^ But it does not lie in any case until execution against the principal has issued and been returned into the clerk's oflSce unsatisfied.^ If several persons are cited and charged as trustees, the plaintiff may, on a return of the execution unsatisfied, sue out a scire facias against all the trustees so charged, either jointly or severally. If, however, the trustees, or any certain num- ber of them, are liable jointly, there would be an obvious con- venience and propriety in joining all, or so many as are jointly liable, in one writ.* If a trustee, who has been duly served with the scire facias neglects to appear and answer, he may be defaulted ; and if he was not examined in the original suit, judgment may be rendered against him upon such default for the whole sum remaining unsatisfied on the judgment against the defendant.^ § 8.. Examination of Trustee on Scire Facias. — If the trustee appears and answers to the scire facias, and if he had not been examined in the original suit, he will be liable to be ex- amined in the same manner as he might have been examined in that suit ; and if he had been examined in the original suit, the court may require or permit him to be examined anew in the suit on the scire facias. In either case, he will be permitted to answer and prove any matter that may be necessary or proper for his defence in the suit on the scire facias. Upon the whole matter appearing upon such exami- nation and trial, the court will render such judgment as law and justice require ; but in all cases of judgment against a trustee on scire facias the sum for which he is chargeable will be expressed in the judgment.^ 1 Pub. St. c. 183, § 50. * Hathaway v. Eiissell, 16 Mass. ^ Patterson v. Patten, 15 Mass. 473. 473. ° Patterson v. Buckminster and Tr., ' Pub. St. t. 183, § 51. 14 Mass, 144. Pub. St. u. 183, § 53. 48 SCIEB FACIAS. [CH. VI. § 9. Answers taken to be true. — In a scire facias against a trustee his answers in the absence of any allegation of fact not stated or denied by him are to be taken as true, and the questions arising thereon are to be decided by the court.i § 10. Judgment. — If a trustee, who is defaulted on the scire facias, has been examined in the original suit, judgment in the scire facias will be rendered upon the facts stated in that examination, or proved in the trial had thereon, for any part remaining in his hands of the goods, effects, or credits for which he was originally chargeable as a trustee, or for so much thereof as then remains unsatisfied on the judgment against the defendant.^ As to costs see post, chapter on Costs. § 11. When Scire Facias may be issued by Inferior Courts. — Trial justices and police, municipal, and district courts may issue writs of scire facias against executors and administrators, upon a suggestion of waste after judgment against them, and also against the bail taken in a civil action before them, and proceed therein to judgment and execution in the same man- ner as the Superior Court might do in like cases. § 12. The judgment in scire facias must be made to con- form to the object sought to be obtained by the action.^ 1 Tryon ti. Merrill, 116 Mass. 299 ; 2 Pub. St. c. 183, § 52. Fay V. Sears, lU Mass. 154. 8 Pub. St. c. 155, § 14. § 3.] BEPLEYIN. 49 CHAPTER VII. EEPLEVIN. § 1. Replevin is a common-law action, and was early adopted in Massachusetts. Originally it did not lie unless there had been a tortious taking or some act by which the possession of the goods made the party taking them a trespasser ah initio ; now the action lies for goods unlawfully detained, though the taking were lawful. As to form of writ, see ante, p. 15. By this process the plaintiff is put in possession of the property in dispute, by the ofScer who serves the writ, before any trial of the action. § 2. Who may bring Replevin. — The action may be brought by any person who has a general property in the beasts or the goods to be replevied and the right to their immediate posses- sion, and against any person whose possession is unlawful, unless the beasts or goods are in the custody of the law, or unless they have before been replevied by the party in pos- session 1 § 3. Replevin of Beasts. — The statutes provide that " a person whose beasts are distrained or impounded in order to recover a penalty or forfeiture supposed to have been incurred by their going at large, or to obtain satisfaction for damages alleged to have been done by them, may maintain a writ of replevin for such beasts in the same form substantially as heretofore established and used in such cases." ^ 1 Waterman v. Robinson, 5 Mass. 359 ; Walcott v. Pomeroy, 2 Pick. 121 ; 303; Ludden v. Leavitt, 9 Mass. 104; Wheeler u. Train, 3 Pick. 255 ; Johnson Ladd V. Billings, 15 Mass. 15 ;_ Ilsley v. v. Neale, 6 Allen, 227 ; Wade v. Mason, Stnbbs, 5 Mass. 280 ; Portland'Bank v. 12 Gray, 335. Stubbs, 6 Mass. 422; Gates v. Gates, 15 = Pub. St. 1. 184, § 1. Mass. 310 ; Badger v. Phinney, 15 Mass. 50 REPLEVIN. [CH. VII. § 4. Replevin of Goods. — The statutes further provide that " when goods of a value greater than twenty dollars are un- lawfully taken or detained from the owner or person entitled to the possession thereof, or when goods of that value, which have been attached on mesne process or taken on execution are claimed by a person other than the defendant in the suit in which they are so attached or taken, such owner or other person may cause such goods to be replevied." i When the value of goods taken or detained does not ex- ceed twenty dollars, an action of replevin cannot be main- tained.2 No such limit, however, applies to replevin of beasts distrained or impounded. In such case it seems that the action will lie although the value of the beasts is less than twenty dollars.^ § 5. Form and Service of Writ, and Hearing thereon. — The statutes provide that " the form of the writ shall be substan- tially that heretofore established and used ; and in all particu- lars in which a different course is not prescribed it shall be sued out, served, and returned like other writs in civil actions, and shall in all eases be returnable in the county in which the goods are detained," * and that " the writ shall be sued out, served, and returned, and the cause shall be heard and determined in like manner as is provided for other civil actions, in all particulars in which a different course is not prescribed." ^ § 6. The Declaration. — The declaration must describe the goods to be replevied with a reasonable degree of certainty. In a case where the officer was directed to replevy "the contents of a grocery store," it is held that the description was sufficient. The description should be sufficient to in- form the officer and furnish the means of clearly identify- ing the property. It is not necessary to allege the value of the property to be replevied.® § 7. Replevin Bond. — When the action is brought for beasts distrained, the statutes provide that " the writ shall 1 Pub. St. c. 184, § 10. S Pub. St. c. 184, § 2. " Davenport v. Burke, 9 Allen, 116. ^ Litchman v. Potter, 116 Mass. 371, i 8 Pub. St. c. 184, § 1. 373 * Pub. St. c. 184, § 1 1 . See ante, p. 15. § 7.] EEPLEVIN. 51 not be served, unless the plaintiff, or some one in his behalf, executes and delivers to the officer a bond to the defendant, with sufficient sureties, to be approved by the officer, in a penalty double the value of the property to be replevied, with condition to prosecute the replevin to final judgment, and to pay such damages and costs as the defendant shall recover against him, and also to return the property in case such shall be the final judgment. " The writ shall require that the bond shall be given in double the value of the property to be replevied, but shall not express the sum or amount for which it shall be given. When the parties do not agree as to the value of the prop- erty, it shall be ascertained by three disinterested and dis- creet persons, appointed and sworn by the officer, and the penaltj' of the bond shall be double the value ascertained by such persons or any two of them. " The officer shall return such bond with the writ, to be left with the justice or court for the use of the defendant; he shall also include in his return, indorsed on the writ, a certificate of the appointment of the three appraisers, the appraisal, and the expenses thereof." ^ This provision of the statute as to the return of the bond is merely directory, and a strict compliance with it is not necessary to its validity.^ When the action is brought to replevy property other than beasts distrained, a similar bond is required.^ This bond must be taken in all cases, or the process may be avoided by the defendant, by plea in abatement or on motion.* And it must be given to the defendant, and not to the officer serving the writ, or it will be illegal and void.^ But it has been decided, that though the bond taken be for a larger sum than the precept requires,^ or though signed by a part only of several plaintiffs,^ or though bearing date after the service of the writ, although not following verbatim in the condition the words of the statute, the service will be good.^ 1 Pub. St. c. 184, § 3, 4, 5. « Purple v. Purple, 5 Pick. 226. 2 Smith u. Whiting, 97 Mass.316,318. « Clop v. Guild, 8 Mass. 153. " Pub. St. c. 184, § 12. ' Chandler v. Smith, 14 Mass. 313. * Cady V. Eggleston, 11 Mass. 82. * lb. 52 KEPLEVIN. [CH. VII. § 8, ■When the Bond is Defective. — The statutes provide that " no action of replevin shall be dismissed on account of any defect in the form or substance of the bond taken therein, if the court or justice is satisfied that such bond was intended in good faith as a compliance with the law requiring a bond to be taken before service of the writ, and if the plaintiff files, within such time and upon such terms as the court may order, a new bond such as is required by law, the same to be ap- proved by the court or in the manner provided by law for the approval of bail bonds." ^ § 9. Answer and Pleas. — The plea of non cepit admits the property to be in the plaintiff. On that plea the defendant cannot have judgment for a return of the property nor for damages.2 To maintain that issue the plaintiff must either prove an unlawful taking or an unlawful detention. The plea of non cepit may be joined with a plea of property in the defendant or in another person, and on such a plea the title to the property may be tried and determined.^ An answer in replevin which avers that the defendant was and is the owner of the property replevied, and denies the plaintiff's right to maintain the action, puts in issue the plaintiff's title to the property.* The general rule seems to be, that, whenever upon the pleadings it appears that the defendant is entitled to a return, he will have judgment for it, otherwise he will not.^ § 10. Jurisdiction of Actions of Replevin. — From the pro- visions of the several statutes and the decisions of the courts, it appears, — First. That all actions of replevin for beasts distrained or impounded, as provided in the statute, as stated on page 15, must be brought before a trial justice or a police, municipal, or district court,^ and that the Superior Court has no original jurisdiction in such cases,^ but such actions may be trans- 1 Pub. St. u. 184, § 21. * Chase v. Allen, 5 Allen, 599. " Holmes v. Wood, 6 Mass, 1, 3. ^ Gould v. Barnard, 3 Mass. 199. " Badger v. Phinney, 15 Mass. 359 ; " Pub. St. t. 155, § 12 ; c. 154, § 11. Simpson v. McParland, 18 Pick. 429. ' Pub. St. c. 155, § 13. § 12.] EEPLEVIN. 53 ferred to the Superior Court when the property of the beasts is in question, or their value exceeds one hundred dollars. ^ Second. That trial justices and police, municipal, and dis- trict courts have original and exclusive jurisdiction of actions of replevin under Public. Statutes, c. 184, for goods, -when the value thereof exceeds twenty dollars, and is less than one hundred dollars.^ Third. That trial justices and police, municipal, and dis- trict courts have concurrent jurisdiction with the Superior Court of all such actions of replevin, when the value of the goods exceeds one hundred dollars, and does not exceed three hundred dollars.^ Fourth. That the Superior Court has original and exclu- sive jurisdiction of such actions of replevin for goods when the value thereof exceeds three hundred dollars.* . Fifth. That the Municipal Court of the city of Boston has concurrent jurisdiction with the Superior Court of such actions of replevin for goods when the value thereof exceeds one hun- dred dollars, and does not exceed one thousand dollars.^ § 11. Venue of Action of Replevin. — The statutes provide that the writ " shall in all cases be returnable in the county in which the goods are detained." ^ This provision is con- tained in that portion of the statute relating particularly to goods other than beasts distrained. It is probably intended to apply to all cases of replevin, as no different provision is made in the statutes in relation to actions to replevy beasts distrained. , § 12. When a Demand must be made. — To maintain re- plevin, the plaintiff must prove either unlawful taking or an unlawful detention. When the taking is unlawful, that may be relied on as the ground of the action ; ' but when the taking is lawful, and the plaintiff relies upon the unlawful detention, some act must be proved to show an unlawful de- tention. In such case, therefore, the plaintiff, before com- 1 Pub. St. c. 184, § 9 ; . Sackett v. ' Pub. St. c. 154, § 59. KeUogg, 2 Cush. 88. ^ Pub. St. c. 184, § 11. 2 Pub. St. c. 155, § 13. ' Ayers v. Hewit, 20 Me. 281 ; Buss- 8 Pub. St. c. 155, § 13. ing V. Eice, 2 Cush. 48. * Pub. St. c. 152, § 2. 54 REPLEVIN. [CH. VII. mencing his action of replevin, should make a demand for the property detained from him ; and a refusal of the person having it to deliver or surrender it to the plaintiff will be evidence of the unlawful detention.^ A demand will do no harm, even if the taking were unlawful, but it is not often necessary.2 § 13. Officer's Return of Service. — The duties of an ofS- cer in serving a replevin writ, the appraisement of the prop- erty to be replevied, and taking a bond to the defendant are prescribed in the statute.^ His retui-n on the writ should state accurately his doings. Several important questions as to such service and return by the officer are considered and decided in Walcott v. Mead, 12 Met. 516, 517. An article of personal ornament cannot be taken on a writ of replevin from the person of the defendant without his consent, even if worn by him for the sole purpose of keeping it bej-ond the reach of legal process.* § 14. Judgment in Replevin. — The statutes make particu- lar provision as to the judgments which may be awarded in case of the replevin of beasts,^ and in case of the replevin of goods other than beasts.® § 15. Execution in Action of Replevin. — If judgment be rendered for the plaintiff, an execution in the usual form is issued for his damages and costs. If judgment be rendered for the defendant, he is entitled to a writ of return, which is of the nature of an execution, directed to an officer com- manding him, with other things, to return and restore the property replevied to the defendant. A form of this writ may be found in the chapter on Forms.'^ § 16. "Writ of Withernam or Reprisal. — If the officer shall be unable to find the property replevied within his pre- cinct, the defendant will then have his remedy by action on the replevin bond, and has a further remedy by a writ of withernam or reprisal, " to take the beasts or goods of 1 Badger v. Phinney, 15 Mass. 364 ; < Maxham v. Day, 16 Gray, 213. Esson V. Tarbell, 9 Cush. 414. 5 Pub. St. u. 184, § 6-8. 2 Pringle V. Phillips, 5 Sandf. 157; « Pub. St. t. 184, § 13, 14. Lewis V. Masters, 8 Blackf. (Ind.) 244. ' Pub. St. u. 184, § 26. See ante, s Pub. St. c. 184, § 5, 12. p. 15. § 17.] BEPLEVIN'. 55 the plaintiff and deliver them to the defendant, to be held and disposed of according to law." See form in chapter on Forms.^ § 17. Action on Replevin Bond. — In addition to the other remedies here named, the defendant, if he prevails, has his remedy on his replevin bond ; and, when he has obtained a judgment for a return of the property replevied, and sues out his writ of return, upon which the officer returns that he can- not find the property, may maintain an action on the replevin bond, without first suing out a writ of reprisal.^ 1 Pub. St. c. 184, § 25. See ante, p. 15. 2 Parker v. Simonds, 8 Met. 205. 66 PEESONAL REPLEVIN. [CH. VIU. CHAPTER VIII. pebsonaij replevin. § 1. The action of personal replevin — de homine replegiando — is provided for, and the form of writ prescribed, by the statutes of Massachusetts.^ It is provided that " if a person is imprisoned, restrained of his liberty, or held in duress, un- less in the custody of some public officer of the law by force of a lawful warrant or process, civil or criminal, issued by competent authority, he shall be entitled, as of right, to the writ of personal replevin, and to be thereby delivered " in the manner provided in the statutes. § 2. The writ must be issued from and returnable to the Superior Court in the county in which the plaintiff is confined, and shall be issued fourteen days at least before the return- day. It must be directed to the sheriff of the county, or his deputy, or to any of the coroners thereof, and must be served without delay by either to whom it is delivered.^ § 3. The Bond required. — The statutes provide that " no person shall be delivered from his imprisonment or restraint by force of such writ, until he gives bond " in the manner prescribed by statute. The bond must be returned with the writ like a bail bond, and left in the clerk's office, to be delivered to the defendant upon demand.^ The officer who serves the writ is answerable for the insuf- ficiency of the bond.* § 4. The pleadings and judgment are regulated by stat- ute.^ 1 Pub. St. c. 185, § 40. » Pub. St. c. 185, § 44. 2 Pub. St. c. 185, § 41, 42. See ante, i Pub. St. c. 185, § 45. p. 15, and post, chapter on Forms. ' Pub. St. c. 185, § 47-53. § 5.] PERSONAL REPLEVIN. 57 § 5. Either party may appeal to the Supreme Judicial Court from any judgment of the court founded on matter of law apparent upon the record as in civil actions.^ This process is now seldom resorted to. The form of the writ is prescribed by statute.^ 1 Pub. St. c. 185, § 54. " Pub. St. c. 185, § 43. 58 HABEAS CORPUS. [CH. IX. CHAPTER IX. HABEAS OOEPXJ.S. § 1. The writ of habeas corpus is a writ of right. It has been so regarded in England from the time of Magna Charta, though prior to the time of Charles II. the benefit of it was in a great degree eluded. The statute of 31 Charles II. c. 2, restored the writ to all the efficiency to which it was entitled at common law, and which was requisite for the protection of the liberty of the subject. § 2. Constitutional Provisions as to the Writ. — The privi- lege of this writ is made an express constitutional right at all times, except in cases of invasion or rebellion, by the Con- stitution of the United States^ and by the constitution of Massachusetts.^ The citizens are declared to be entitled to enjoy the privilege of this writ in the most " free, easy, cheap, expeditious, and ample manner." § 3. Common Law as to Habeas Corpus. — The right of de- liverance from all unlawful imprisonment, to the fuU extent of the remedy provided by the habeas corpus act, is a com- mon-law right. The common law of England, so far as it was applicable to our circumstances, was brought over by our ancestors upon their emigration to this country. The Revo- lution did not involve in it any abolition of the common law. It was rather calculated to strengthen and invigorate all its just principles. It is to be considered as the law of the land, subject to the modifications here suggested, and to express legislative repeal. The statute of 31 Charles II., before referred to, is the basis of all the American statutes on the subject of the writ of habeas corpus.^ 1 Const, of TT. S., art. 1. § 9. See = 2 Kent Com. 27. As to fonn of ante, p. 16. writ, see ante, p. 16. ^ Const, of Mass., part ii. c. 6, § 7. § 6.] HABEAS CORPUS. 59 § 4. Who are entitled to the "Writ. — By our statutes the following persons are not entitled as of right to demand and prosecute a writ of habeas corpus : — " Persons committed for treason or felony, or on suspicion thereof, or as accessories before the fact to a felony, when the cause is plainly and specially expressed in the warrant of commitment ; " Persons convicted, or in execution upon legal process, civil or criminal ; " Persons committed on mesne process in any civil action on which they were liable to be arrested and imprisoned, unless ■when excessive and unreasonable bail is required." Every other person imprisoned or restrained of his liberty may as of right prosecute such writ, to obtain relief from imprisonment or restraint, if it proves to be unlawful.^ A person held under color of legal process is not entitled as of right to this writ.^ As to the rights of a minor enlisted into the army of the United States, see cases cited in note.^ § 5. 'What Courts have Jurisdiction. — The writ may be issued by the Supreme Judicial Court or Superior Court, by a probate, police, district, or municipal court, or by a judge of either of the before-mentioned courts, or by a justice of the peace if no one of the judges before referred to is known to such justice to be within five miles of the place where the part);- is imprisoned or restrained; and the writ maybe issued by any of said courts or magistrates, without regard to the county in which is the place of imprisonment.* § 6. Application for the writ must be made to the court or magistrate authorized to issue the same by complaint in writ- ing, signed by the party for whose relief it is intended, or by some person in his behalf, and setting forth, — First. The person bj-^ whom, and the place where, the party is imprisoned or restrained, naming the prisoner and the per- son detaining him if their names are known, and describing them if they are not known. ' Pub. St. c. 185, § 1, 2. 1.54-160; Tarbel's Case, 13 Wallace, ' Belgard v. Morse, 2 Gray, 406. 397-412. » McConologue's Case, 107 Mass. * Pub. St. t. 185, § 3. 60 HABEAS CORPUS. [CH. IX. Second. The cause or pretence of such imprisonment or restraint, according to the knowledge and belief of the person applying. Third. If the imprisonment or restraint is by virtue of a warrant or other process, a copy of such warrant or process must be annexed, unless it is made to appear that such copy has been demanded and refused, or that by some sufficient reason a demand therefor could not be made. The facts set forth in the complaint must be verified by the oath of the person making the application, or of some other credible witness.' § 7. The writ may be issued forthwith, returnable before the court or some justice thereof in term time or vacation.^ In cases of imprisonment or restraint by a person not a sheriff, deputy-sheriff, or jailer, the statute gives the form of the writ,^ which may be found in the chapter on Forms. 1 Pub. St. c. 185, § 4. 8 Pub. St. c. 185, § 6. 2 Pub. St. c. 185, § 5. § 2.] AUDITA QUERELA. 61 CHAPTER X. AUDITA QUBEELA. § 1. The form of the writ of audita qnerela is Stated on page 16. It is a common-law writ, and the cases where it is the proper remedy must be determined by the rules of the com- mon law. It is a concurrent remedy with a petition for a review.^ It is used where a defendant against whom judg- ment is recovered, and who is therefore in danger of execution or perhaps actually in execution, may be relieved upon good matter of discharge which has happened since the judg- ment, as if the plaintiff had given him a general release, or if the defendant had paid the debt of the plaintiff without procuring the satisfaction to be entered upon the record.^ It is the proper remedy for a party injured by the irregular issuing of an execution when there is a regular judgment.^ It is a writ directed to the court stating that the complaint of the defendant hath been heard, audita querela defendentis, and then, setting out the matter of the complaint, it at length enjoins the court to call the parties before them, and, having heard their allegations and proofs, to cause justice to be done between them.* § 2. Service of the Writ. — Our statutes provide that the writ may be sued out and served like an original writ of attachment or summons, and the forms of process shall be substantially the same as heretofore established and used in this commonwealth.^ 1 Lovejoy v. Webber, 10 Mass. 101. * 3 Black. Com. 405. 2 3 Black. Com. 405. 6 Pub. St. c. 186, § 1. ' Johnson v. Harvey, 4 Mass. 483 ; Dingman v. Myers, 13 Gray, 1. 62 AUDITA QUERELA. [CH. X. § 3. Jurisdiction of the Case. — When the writ is brought to prevent, set aside, or annul any proceedings upon a judg- ment or execution, it must be sued out of and returnable to the court in which the judgment was rendered. In other cases it may be brought in the county in which a personal action might be brought between the same parties, and shall be sued out of and returnable to the Superior Court.^ § 4. The proceedings in relation to pleas, answer, appeal, and other matters are the same as in other civil actions, so far as they are applicable, and the court will hear and determine the cause upon any issue of law or fact, or upon the nonsuit or default of either party, and shall render judgment as law and justice shall require.^ § 5. Damages. — When the writ is brought to set aside or annul any proceedings under an execution, the plaintiff, if he prevails, will recover recompense for the damages suffered by said proceedings, and the judgment on the audita querela shall be a bar to any other action thereafter brought for the same damages.^ § 6. Injunction may issue. — At any time after the issue of the writ the court or a justice thereof may in term time or vacation issue any writ of injunction which the nature of the case and justice and equity require.* This writ is now seldom resorted to, as the indulgence of the courts will generally grant more summary relief upon motion. 1 Pub. St. c. 186, §.2. » Pnb. St. c. 186, § 4. 2 Pub. St. c. 186, § 3. 4 Pub. St. c. 186, § 6. § 3.] "WEIT OF EEKOE. 63 CHAPTER XI. WEIT OP EEEOE. § 1. Nature of the Writ. — A writ of error is practically an original writ, and lies when a party is aggrieved by any error in the foundation, proceeding, judgment, or execution of a suit in a court of record, and is in the nature of a commission to the judges of the same or of a superior court, by which they are authorized to examine the record upon which judg- ment was given, and on such examination to affirm or revise the same, according to law.^ § 2. Assignment of Errors and issuing Writ. — The rules of the Supreme Judicial Court of Massachusetts provide that, " before taking out a writ of error, the plaintiff shall file the assignment of errors in the clerk's office, and a copy of the same shall be inserted in the scire facias ; and the defendant shall be held to plead thereto within ten days after the return- day of the scire facias, unless the court shall by special order restrict or enlarge the time." ^ § 3. The Writ, and Citation thereon. — The writ is directed to the court in which the judgment was rendered, and sets forth that, for manifest error said to have happened in an action between the parties to a suit, the court are " willing that the error, if any hath been, should be amended," and commands the court to which the writ is directed to send the "record and process of the suit" to the court to which the writ of error is returnable. At the time of issuing the writ the clerk will issue the scire facias ad audiendum errores, which is a citation to the adverse party to appear and answer at the time and place therein 1 2Tidd's Pr. 1134; 2 Bac. Abr. 187. See ante, p. 16. ^ Bule 29. 64 WBIT OF EEEOR. [CH. XI. specified. It must be tested, sealed, and dated in the same manner as the writ.^ § 4. Averments in Assignment. — The assignment of errors must specify the errors by which the plaintiff in error deems himself aggrieved, naming the court, term, and case in which the judgment was given, and stating his desire that a writ of error should issue. § 5. Issue of Writ, and when to be indorsed. — The writ may issue in vacation as well as in term time,^ and when the plain- tiff resides out of the State it must be indorsed.^ § 6. Venue and Service. — The action must be brought in the county in which the judgment was rendered.* As to service of the writs, see chapter on the " Service and Return of Writs." § 7. What Errors may be re-examined on Writ of Error. — The Supreme Judicial Court have general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein, where no other remedy is expressly pro- vided, and may issue writs of error.^ The writ can be issued only to a court of inferior jurisdiction. Questions of law (except upon pleas in abatement), and final judgments in civil actions in the Superior Court, may be re-examined upon a writ of error, and reversed or affirmed, in the Supreme Judicial Court held for the same county, for any error in law or in fact, except, however, that by provision of statute a judgment in a civil action may not be arrested or reversed for a defect or imperfection in matter of form which might by law have been amended ; nor by reason of a mis- take respecting the venue of the action; nor because the judgment is not in conformity with the allegations of the parties, if it is in conformity with the verdict ; nor can any error in law in a civil action in which the defendant appeared and a verdict was rendered, except such as occurs after ver- dict, be assigned in a writ of error. 1 Howe's Pr. 478. See forms of ' Pub. St. c. 161, § 24. writs and assignment of errors, in chap- * Pub. St. c. 187, § 2. ter on Forms. 6 Pub. St. c. 150, § 3. 2 Pub. St. c. 187, § 1. § 10.] WEIT OF EEEOE. 65 An error affecting the jurisdiction of tlie court may be assigned. 1 § 8. An assignment of errors is in the nature of a declara- tion, and is either of errors of law or of errors in fact.^ § 9. Errors in Law. — These are of two kinds, common and special. The common errors in law are, that the declaration is in- sufficient in law to support the judgment, and that the judg- ment was rendered for the plaintiff, instead of the defendant, or vice versa. Special errors in law are some particular individual defects, apparent on the record, which are specially referred to by the plaintiff in error, and which show the judgment to have been erroneous.* Nothing can be assigned for error which contradicts the record ; or was for tlie advantage of the party assigning it ; * or that is aided by appearance, or by not having been taken advantage of in due time.^ But if the error be the default of the court, though it be for the advantage of the party, yet it may be assigned, for the course of the court ought to be observed.^ So a plaintiff may assign for error the want of jurisdiction in a court of limited jurisdiction, to which he has chosen to resort.' What a part}' could have taken ad- vantage of in the court below cannot be assigned for error in fact.^ § 10. Errors in Fact. — These consist of matters of fact, not appearing upon the face of the record, which, if true, prove the judgment to have been erroneous ; as that the defendant in the original action, being an infant, appeared by attorney ; that a, feme plaintiff or defendant was under coverture at the time the action was commenced ; that a sole plaintiff or de- fendant died before judgment ; or that the defendant was out of the Commonwealth at the time of the service of the writ, 1 Pub. St. c. 187, § 2, 3 ; 5 -Dane's ^ 2 H. Black, 267, 299. Abr. c. 137, a. 7 ; Howe's Pr. 481. « 2 Bac. Abr. 218; Caprou v. Van 2 2 Bac. Abr. 216. Noorden, 2 Cranch, 126 ; Yelv. 107. 8 2 Tidd'sPr. 1168 ; Howe's Pr. 481. '2 Tidd's Pr. 1170. 1 2 Bac. Abr. 218; Helbut v. Held, 8 Wetmore v. Plant, 5 Conn. 541. 1 Stra. 684. 5 66 WRIT OF ERROR. [CH. XI. and did not return before the entry of the action, and that it was defaulted at the first term.^ § 11. General Rules as to the Action. — The general rules of the common law applicable to writs of error are as fol- lows : — 1. The error must be one of substance, not aided or amend- able at common law, or by any statute.^ 2. The error complained of must be disadvantageous to the party assigning it.^ 3. The writ must be brought only after judgment.* 4. The judgment complained of must have been rendered in a court of record, acting according to the course of the common law." Whatever the error be, and in whatever stage of the case it occur, it must appear upon the record in order that a writ of error may be sustained by the party thinking himself aggrieved thereby. And if the matter complained of do not necessarily appear on the record, the party contemplating a writ of error should cause it to appear there, by filing excep- tions, or requesting a special verdict. Within this rule it is held that neither the report of the judge of the evidence and proceedings in a trial, nor the reasons given for the opinion of the court, nor the papers and documents filed in the case, nor papers filed in support of the plaintiff's action, or to prove his damages, after a default, are a part of the record, so as to sustain a writ of error to reverse the judgment ; but that if either party be aggrieved by the opinion, or by the admission of the evidence, he must file exceptions. Where the party aggrieved had neglected to cause the mat- ter complained of to appear upon the record, it was said by the court that his only remedy was by petition for a new trial.^ 1 Howe's Pr. 481 ; Blanchard v. WEd, * Drowne v. Stimpson, 2 Mass. 441 ; 1 Mass. 342. Richards v. Wheeler, 2 Aik. (Vt.) 369. ' 2 Buckfield „. Gorham, 6 Mass. 445 j S Commonwealth v. Ellis, 1 1 Mass. Metcalf V. Sweet, 1 N. H. 338. 466 ; Smith v. Paige, 4 Allen, 94 ; Clap 8 Shirley v. Lunenhurg, 11 Mass. v. Clap, 4 Mass. 520 ; Thayer v. Com- 379; Wheelock v. Moulton, 13 Vt. monwealth, 12 Met. 9. 430- " McFadden v. Otis, 6 Mass. 323 ; § 14.] WRIT OF ERROR. 67 § 12. The error, for 'which a judgment may be reversed by writ of error, if it thus appear on the record, may be either in the foundation, proceedings, judgment, or execution of the suit.i § 13. Error in the Foundation of a Suit. — A judgment on a writ of review, sued out as of right, by a party not entitled to it, may be reversed on a writ of error ; ^ so on a promise made upon an illegal consideration, if the illegality appear upon the face of the declaration.^ If a husband bring a separate action for an injury done to the wife, where the wife might have joined in the action, a judgment therein will not be erroneous, because such judg- ment would be a good bar to a joint action by the husband and wife, for the same cause.* § 14. Error in the Proceedings of a Suit. — If an action against a defendant who is out of the State be not continued, as required by statute, but judgment be rendered at the first term, the judgment will be erroneous.* So, if in an action against an infant, judgment on default be rendered against him, without a guardian having been appointed,^ or in an action against a person non compos, with- out notice to his guardian,^ in either case, the judgment will be erroneous. If the declaration, in an action in which a defendant has been defaulted, be insufScient, the judgment may be reversed on writ of error.^ Where, upon a default, damages are assessed generally on all the counts in the declaration, and one of them would be bad on general demurrer, the judgment must be reversed ; so also, after a verdict and general damages, unless the ver- dict can be amended by the certificate of the judge, so as to show that the damages were assessed on the good counts only. 3 Coolidge V. Inglee, 13 Mass. 50 ; Storer ^ Blanchard v. Wild, 1 Mass. 342 ; V. White, 7 Mass. 448 ; Peirce v. Adams, BuUard v. Brackett, 2 Pick. 85. 8 Mass. 383 ; Gerrish v. Morss, 2 Pick. " Knapp v. Crosby, 1 Mass. 479. 625. ' White v. Palmer, 4 Mass. 147. 1 Howe's Pr. 466. s Perry v. Goodwin, 6 Mass. 498. 2 Hall V. Wolcott, 10 Mass. 218. ' Hemmenway v. Hickes, 4 Pick. 497 ; 3 Statesbury v. Smith, 2 Burr. 924. Dryden v. Dryden, 9 Pick. 546. * Southworth v. Packard, 7 Mass. 95. 68 WRIT OF ERROR. [CH. XI. If the service of a writ be made by an officer not author- ized by law to make it, — as if the writ, in a real action, be served by a constable, — the judgment thereon may be re- versed on writ of error.^ So also if no service have been made.^ An omission to enter continuances upon the docket, so as to bring the case forward from term to term, is not a suffi- cient ground to sustain a writ of error,^ but it will be con- sidered as the omission of the clerk. If a mistake be made in the taxation of costs, and judg- ment be rendered thereon, error lies ; * but not because the items of cost do not appear,^ nor for excessive costs.^ Error does not lie for a mistake in computing interest upon the demand in suit.'^ The party aggrieved should petition for a new trial. If the verdict do not find the issue joined, the judgment thereon may be reversed on writ of error.^ But a neglect to join the issue tendered will not make the judgment on the verdict erroneous.^ And it has been held that an erroneous verdict may be amended by the minutes of the judge, after writ of error brought.!" In proceedings under a rule of reference, entered into before a justice of the peace, the requisites of the statutes iregulating such proceedings must be strictly pursued, in the submission and in making the report. And unless such requisites are complied with, the judgment rendered upon the report will be erroneous. Thus, where the reference was to two referees instead of three ; ^^ where a particular statement of the demand in 1 Hart V. Huckins, 5 Mass. 260 ; Same « Southworth v. Packard, 7 Mass. 95. V. Same, 6 Mass. 399 ; Thatcher v. Mil- « Ex parte Weston, 11 Mass. 417. ler, 11 Mass. 413; Same v. Same, 13 ' WWtwell v. Atkinson, 6 Mass. Mass. 270. 272. 2 Whiting V. Cochran, 9 Mass. 532. » Brown v. Chase, 4 Mass. 436 ; Clark 8 Ex parte Weston, 11 Mass. 417. v. Lamb, 6 Pick. 512. * Field a. First Mass. Turnpike ' Whiting v. Cochran, 9 Mass. 532. Co., 5 Mass. 389 ; Waits v. Garland, 7 1" Petrle v. Haniiey, 3 T. E. 659 ; Mass. 453; Thomas v. Sever, 12 Mass. Clark v. Lamb, 6 Pick. 512. 379. 11 Monoslet v. Post, 4 Mass. 532. § 15.] WRIT OF ERROR. 69 writing was not made,i or was not signed by the party making it ; ^ where it did not appear upon the record, that all the referees heard the parties, either by all signing the award, or by a certificate on the award, signed by any one, who did not concur, which is the usual course where there is a disagreement, stating that he was present at the hearing, but did not agree in opinion with the other referees ; ^ where the referees did not make their report to the next Court of Common Pleas after the award was agreed upon, but made it at a court which was in session at the time the award was agreed upon,* or after an intervention of several terms ; ^ and where the referees exceeded their authority, by taking into consideration demands not legally submitted to them ; ^ — in all these cases, the judgments rendered on the reports were, for the several errors, reversed on writ of error. But a judgment on a report of referees will not be erro- neous, because it does not appear that a demand, within the terms of the submission, had not been decided upon by the referees ; for the demand might not have been laid before them, in which case the award would be no bar to an action on such demand^ A writ of error does not lie for rejecting a report of audi- tors or referees, this being but an interlocutory proceeding, and there being no judgment in the case.^ § 15. Error in the Original Judgment. — By a Writ of error an erroneous judgment on an original writ may be corrected. Thus, error lies on a scire facias on a former judgment, or against executors or administrators, or against bail, or against the indorser of a writ.^ If the judgment in a case do not follow the verdict, it may be reversed on error.^° 1 Jones V. Hacker, 5 Mass. 264. « Tudor v. Peck, 4 Mass. 242. 2 Mansfield ;;. Doughty, 3 Mass. 398 ; ' Webster v. Lee, 5 Mass. 334 ; Hodges Humphrey v. Strong, 14 Mass. 262 ; v. Hodges, 9 Mass. 320. Skillings V. Coolidge, 14 Mass. 43. 8 Richards v. Wheeler, 2 Aik. (Vt.) 3 Short V. Pratt, 6 Mass. 496. 195. * Durell V. Merrill, I Mass. 411. ^ Johnson v. Harvey, 4 Mass, 483. 6 Mott V. Anthony, 5 Mass. 489 ; i" Holmes v. Wood, 6 Mass. 1 ; Porter Southworth u. Bradford, .5 Mass. 524 ; v. Rummery, 10 Mass. 64. Bacon v. Ward, 10 Mass. 141. 70 WEIT OF EEEOK. [CH. XI. If judgment be rendered for a sum greater than the ad damnum, the judgment may be reversed.' But if a verdict be found for a greater sum, the plaintiff may take judgment for the amount of the ad damnum, and release the residue. The plaintiff may enter a remittitur after judgment, and even at the next term after judgment.^ In a case in Eng- land, it was allowed to be entered even after writ of error brought, upon payment of the costs of the writ of error.^ § 16. Error in the Execution. — A writ of error will lie to set aside an execution erroneously sued out on a recogni- zance for the payment of a debt taken before a justice of the peace.* § 17. Limitation of Action. — The writ must be sued out within six years of the entering of the judgment complained of, except that if an action of contract, or writ of scire facias, is brought on a judgment, a writ of error to reverse the judg- ment may be sued out at any time within six years after the bringing of such action.^ § 18. The proceedings upon writs of error, as to the assign- ment of errors, the scire facias, pleadings, judgment, and all other matters, are according to the course of the common law as modified by the practice and usage in this commonwealth and by general rules made by the Supreme Judicial Court.® § 19. The common answer or plea of the defendant is in nulla est erratum, or that there is no error in the records or proceedings. It puts in issue the validity of the judgment in all matters of law.'^ Other pleas or answers may be made when the nature of the case requires it.^ See post, chapters on Pleading. § 20. By whom a Writ of Error must be brought. — A writ of error is usually brought by the party or parties against whom the judgment was given. But it may be brought by a plaintiff to reverse his own judgment, if he be dissatisfied 1 Grosrenor K. Danforth, 16 Mass. 74. ^ p^i,. gt. c. 187, § 4. 2 Hemmenway v. Hickes, 4 Pick. 497. " Pub. St. i;. 187, § 1 5. 8 Pickwood V. Wright, 1 H. Bl. 642. ' Bodurtha v. Goodrich, 3 Gray,' 508. * Johnson v. Harvey, 4 Mass. 483 ; * Goodridge v. Boss, 6 Met. 487. Howe's Pr. 472. § 21.] WRIT OF EEEOE. 71 with it, in order that he may be enabled to bring a new action.^ It is a general rule that no person can bring a writ of error to reverse a judgment, unless he was a party or privy to the record in the suit wherein the judgment was rendered, or v^as injured by the judgment, and who, consequently, will derive advantage from its reversal. If there be a single party, therefore, against whom the judgment is given, a writ of error may be brought by him alone, and, in case of his death, by his heirs,^ or his executors or administrators, according as the judgment affects real or personal property.^ Where there are several against whom the judgment com- plained of was rendered, any writ of error thereon must be brought in the names of all of them, if living ; and if any of them be dead, they must still be named, and their death alleged in the writ.* If this be omitted, and the writ be sued out in the name of a part only of the parties, it will be quashed.^ This rule applies in all cases, even though some of the parties should not desire to bring a writ of error, but are willing to submit to the judgment. All must be named in the writ ; and the course in such a case, where some will not prosecute the writ, is, after the return of the writ, and before the assignment of errors, to have a summons and severance, that is, a summons to those who do not appear and join in the writ to come in and do so ; and if they do not, they are then severed,. and the writ is prosecuted by the remaining parties.® § 21. Against whom a Writ of Error must be brought. — The general rule is, that a writ of error must be brought against him only who was party or privy to the first judgment, and, in case of his death, against his heirs, or executors or admin- 1 Johnson v. Jebb, 3 Burr. 1772; Cooper ». Ginger, 1 Stra. 606; 2 Saund. 2 Saund. 101 d, note. 101 d, note; Shirley v. Lunenburg, 11 2 2 Saund. 46, note 6. Mass. 379. 8 Howe's Pr. 473. ^ Andrews v. Bosworth, 3 Mass. 223. * Brewer v. Turner, 1 Stra. 233 ; " Yelv. 4 ; 2 Saund. 101 d, note. 72 WRIT OF ERROR. [CH. XI. istrators, according to the nature of the action in which the judgment was rendered. In case of the death of the original party against whom the writ of error is intended to be brought, every person inter- ested in the judgment, though not a party to the original suit, must be named in the writ, and have notice of it. Thus, if a party to a judgment in a real action have deceased, those entitled at his decease, by descent or devise from him, have a privity by their interest in the principal subject of the judg- ment, and must be named in a writ of error brought to reverse it, as well as the executor or administrator, whether they be tenants of the land or not ; and if another than the heir or devisee be tenant of the land, he also ought to be named in the writ.'' Where there are a number of defendants, the rule is the same as that relating to plaintiffs in a writ of error, and all should be named in the writ.^ So, when a writ of error is brought to reverse a judgment upon a probate bond against the original defendant, the names of all the persons whose names were indorsed on the original writ, and for whose use executions were awarded, should be inserted in the scire facias to hear errors.^ § 22. When Execution may be stayed. — A writ of error does not operate to stay or supersede the execution in a civil action, unless the plaintiff in error, or some person in his behalf, gives bond to the defendant, with one or more suffi- cient sureties, conditioned that the plaintiff shall prosecute his suit to effect, and pay and satisfy such judgment as may be rendered thereon.* § 23. Judgment in Error. — At common law, the judgment in error is either to affirm, or to recall, or to reverse, the former judgment ; or that the plaintiff be barred of his writ of error ; or that there be a new trial. § 24. For the Defendant in Error. — The common judgment for the defendant in error, whether the errors assigned be in fact or in law, is that the former judgment be affirmed. 1 Porter v. Rummery, 10 Mass. 64. 8 Glover v. Heath, 3 Mass. 252. 2 Knox V. Costello, 3 Burr. 1789. * Pub. St. c. 187, § 5. § 25.] WEIT OF EEEOE. 73 So, on a demurrer by defendant to an assignment of errors in fact and law for duplicity, the judgment is that the former judgment be affirmed.^ On a plea of release of errors, or the statute of limitations, found for the defendant, the judgment is that the plaintiff be barred of his writ of error.^ § 25. For the Plaintiff in Error. — When the judgment is for the plaintiff in error, if the error be in fact, the former judg- ment is recalled ; if the error be in law, the former judgment is reversed.^ If the plaintiff in error be the original defendant against whom judgment was given, the judgment in error, when for him, shall be simply to reverse the former judgment ; for the writ of error is brought only to be discharged from that judg- ment.* But if the plaintiff in error be the original plaintiff against whom judgment was given, if he prevail in error, the judg- ment will not only be reversed, but the court will also give such judgment as the court below should have given,^ and, if necessary, award a writ of inquiry to assess the damages.^ A new trial is granted when error is brought upon a bill of exceptions, taken and filed, to the opinion of the judge who tried the cause, where such direction is wrong ; and in many other cases, where error has occurred in the course of the proceedings, which may be corrected on a new trial.'^ A judgment, being an entire thing, cannot regularly be re- versed for part, and affirmed for the residue. Thus, where several damages were given on two issues, and an entire judg- ment was rendered for both, and one of the issues was erro- neous, the judgment was reversed for the whole.^ So, if, in an action against several, one judgment be given against all, and, upon error, it be held that the judgment is eri'oneous as to one, it shall be reversed against all.** 1 2 Tidd's Pr. 1178 ; Howe's Pr. 486. « Ibid. ; Yelv. 76 a ; Gaming v. Sib- 2 1 Stra. 127, 68.3 ; 2 Stra. 1055. ley, 4 Burr. 2490. 3 1 Rol. Abr. 805, pi. 9 ; 2 Bac. Abr. ' 2 Tidd's Pr. 1178; Crossen o. 230. Hutchinson, 9 Mass. 205; Witter u. i Howe's Pr. 486. Witter, 10 Mass. 223. 6 Parker v. Harris, 1 Salk. 262 ; 2 8 2 Tidd's Pr. 1178. Saund. 110. ' Eolls Abr. 776; Howe's Pr. 487. 74 WEIT OF ERROR. [CH. XI. So, if there be several dependent judgments, and the prin- cipal one be reversed, the others cannot be supported ; as, if one recover in debt or scire facias on a judgment, and the first judgment be reversed, the judgment in debt or scire facias is reversed also. But if merely the last judgment be reversed, this does not affect the first.^ Where there are several distinct and independent judg- ments, the reversal of one will not affect the others.^ So, also, though there be but one judgment, yet if it consist of several distinct and independent parts, and, though one part be erroneous, yet it can be set right without a reversal of the whole, it may be reversed for one part, and remain good for the remainder; as for costs alone,^ or damages in scire facias,'^ or for damages and costs in a qui tarn action.^ So, on a writ of error, a judgment may be reversed as to the damages, and affirmed as to the costs.^ So, a judgment in a trustee process may be reversed as to the trustee, and remain good against the principal.'^ § 26. Costs in Error. — The party prevailing on a writ of error in a civil action is entitled to his costs against the ad- verse party, and, if the judgment is aflSrmed, the court will adjudge to the defendant in error damages for his delay at a rate of not less than six nor more than twelve per cent a year on the amount recovered by the former judgment ; and the court may in its discretion award to the defendant double costs.^ § 27. Writ of Error in Federal Courts. — By statutes of the United States, a writ of error lies to the Supreme Court of the United States, to review final judgments at law rendered in the district and circuit courts of the United States, and in the courts of the States and Territories.^ The appellate power of the Supreme Court of the United States, in all such cases, is exercised by a writ of error. Its 1 2 Ld. Raym. 1532. ^ 4 Burr. 2018. ^ Howe's Pr. 488 ; Cummings v. ° Cummings v. Pmden, 1 1 Mass. 206. Pruden, 11 Mass, 206. ' Whiting v. Cochran, 9 Mass. 532. 8 Bellew V. Aylmer, 1 Stra. 188; 5 " Pub. St. c. 187, § 7. Cow. 654 ; 8 Johns. 566. ' U. S. Rev. Sts. § 699-709. * 2 Stra. 808. § 28.] WEIT OF EEEOE. 75 effect is simply to bring up the record of the inferior court for examination. It does not act upon the parties, but only on the record. The writ is regarded rather as a continuation of the suit than the commencement of a new action.^ See post, chapter on United States Courts. § 28. The reported cases in which writs of error have been brought are so numerous, that only a few leading cases can be noticed here ; and these are selected with reference to their bearing upon practice and general rules and principles. The grounds on which writs of error were issued by the Eng- lish courts haye been very much narrowed by the decisions of our own courts, and by statutes making only material errors and mistakes the foundation of a writ of error, and not immaterial and circumstantial ones. 1 PhiUips's Pr. 48. 76 SEAL ACTIONS. [CH. XH. CHAPTER XII. EEAL ACTIONS. § 1. Writ of Entry. — The statutes provide that "all es- tates of freehold, whether in fee simple, fee tail, or for life, may be recovered by a vrrit of entry upon disseisin, unless a different action is prescribed by law." ^ The writ may issue in the form of an original summons or in that of a summons and attachment.^ It can only be main- tained against the tenant of the freehold.^ § 2. The declaration must aver the seisin of the demandant, within twenty years then last past, but need not specify any particular time. It must allege a disseisin by the tenant, but need not aver a taking of the profits. The demandant must set forth the estate that he claims in the premises, whether it is in fee simple, fee tail, or for life, and if the latter, whether it is for his own life or for the life of another ; but it is not necessary to set forth the original gift, devise, or other con- veyance or title by which he claims the estate.* The description of the estate claimed must be so certain that seisin may be delivered by the sheriff, without reference to any description not contained in the declaration.^ Ease- ments and restrictions cannot be enforced by a writ of entry, and need not be set forth in the declaration.^ § 3. Plea of a Defendant in Real and Mi:sed Actions. — The statutes provide that 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." '^ It is also pro- 1 Pub. St. c. 173, § 1. 5 Atwood v. Atwood, 22 Pick. 283. 2 Wilbur V. Ripley, 124 Mass. 468. ^ Provident Inst, for Savings w. Burn- See ante, p. 7, 11. ham, 128 Mass. 458. * Kerley v. Kerley, 13 Allen, 286. ' Pub. St. c. 167, § 15. * Pub. St. c. 173, §2. § 6.] EEAL ACTIONS. 77 vided by statute that " the law and practice relating to the pleadings and evidence in the action or writ of entry on dis- seisin, as heretofore recognized and established, shall continue in force, except so far as they are altered by the provisions " of chapters one hundred and sixty-seven and one hundred and seventy-three of the Public Statutes.^ § 4. Non-tenure, disclaimer, several tenancy, and sole tenancy may be pleaded in abatement or given in evidence under the general issue, but the party will be allowed such costs only as accrue after the filing of the plea.^ Rule 45 of the Rules of the Superior Court provides that " in all real actions where the tenant relies on disclaimer, non-tenure, or any other defence, which, under the rules of common law, could not be shown under the general issue, he shall present the same in a specification of defence at the time of filing his plea." This rule is applicable to an action by a writ of entry to foreclose a mortgage of real estate, as well as to other real actions.^ § 5. What Specification of Defence is sufBcient. — A tenant in a writ of entry who pleads the general issue of nul disseisin, and upon the same paper and in addition to said plea sets forth the following ground of defence, to wit, " non-tenure^'' suflB- ciently complies with the rule of the Superior Court* requiring non-tenure to be presented in a specification of defence at the time of filing the plea. The specification may be on the same paper with the plea, or on a separate piece of paper and filed separately.^ A tenant cannot, however, under the general issue rely upon a claim of title in himself and also upon the defence of non-tenure.^ It will not be attempted here to state at length the rules of pleading apphcable to real actions. A few points only are noticed on account of their relation to the subject of this work. § 6. Who is a Disseisor ? — " Every person who is in posses- sion of the premises demanded in a writ of entry, claiming 1 Pub. St. c. 173, § 8. ^ Truro ». Freeman, 123 Mass. 187 ; '' Pub. St. c. 173, § 9. Wheelwriglit w. Freeman, 12 Met. 154. 3 Olney v. Adams, 7 Pick. 31. « Creighton u. Proctor, 12 Cash. ' Kule 45. 433. 78 REAL ACTIONS. [CH. Xn. an estate of freehold therein, may be considered as a disseisor for the purpose of trying the right, whatever was the manner of his original entry on the premises. "If the person in possession has actually ousted the de- mandant or withheld from him the possession of the premises, he may, at the election of the demandant, be considered as a dissiesor for the purpose of trying the right, although he claims an estate less than a freehold."^ There must be actual interference with the possession of land to constitute what may be considered by the owner as a disseisin at his election.* § 7. Joinder of Parties in Real Actions. — " Two or more persons claiming the same premises as joint tenants, tenants in common, or coparceners, may join in a suit for the recovery of such premises, or any one of such persons may sue alone for his share." ^ This rule does not apply to a writ of entry to foreclose a mortgage of real estate. That action takes the place of a bill in equity to foreclose. In such a bill all the parties to the mortgage must be made parties to the suit. One joint tenant cannot alone maintain a writ of entry to foreclose a mortgage of real estate.* If a person is disseised by two or more persons, the disseis- ors have one joint estate and one title, and the disseisee must sue them all jointly ; otherwise, when the disseisin is by several persons, severally, by several acts, at different times, or of different portions of the land.^ § 8. Proceedings on Writ of Entry. — Every suit upon a writ of entry must be prosecuted and conducted in the same man- ner as if the demandant, at the time of commencing the action, had made an actual entry on the demanded premises, and had been immediately ousted by the tenant ; so that on a trial upon the general issue, if the demandant proves that he is entitled to such estate in the premises as is set forth in the declaration, 1 Pab. St. c. 173, § 5, 6. * Webster v. Vandeventer, 6 Gray, 2 Field V. Hawley, 126 Mass. 327, 428, 432. 329. ^ Varnum v. Abbot, 12 Mass. 474- ' Pub. St. c. 173, § 7. 480 ; Jackson on Real Actions, 72. § 10.] EEAL ACTIONS. 79 and that he had a right of entry on the day when the action was commenced, he will recover the premises unless the tenant proves a better title in himself. ^ § 9. Proof of Seisin. — The demandant is not required to prove an actual entry under his title, but if he proves that he is entitled to such an estate as he claims in the premises, ' whether as heir, devisee, purchaser, or otherwise, and also that he has a right of entry therein, this is deemed sufficient proof of his seisin as alleged in the declaration. No writ of entry will be maintained unless the demandant has at the time of commencing his action a right of entry into the demanded premises.^ By the common law the demandant could not recover on a writ of entry without proof of an actual entry before the com- mencement of the suit ; but by the provisions of the Revised Statutes of 1836, c. 101, § 4, 8, great and important changes were introduced into the system of practice in real actions, both in the form of pleading and in the proof necessary to sustain such action. § 10. Change in Heal Actions by Statutes of 1836. — The learned commissioners who reported the Revised Statutes of 1836, in their report say that they " have proposed to abolish all writs of right and all but one of the writs of entry ; and to regulate the use of that one so as to answer all necessary- purposes. The real actions provided for by the common law have been very little used in England for the last three cen- turies. Hence it has followed that the law relating to these actions has long' ceased to be familiar to the members of the profession, and was to be sought for, when wanted, in books, which at first view appeared to many readers uninteresting and even repulsive."^ The recommendations of the commissioner were adopted in the Revised Statutes, and subsequently embodied in the General Statutes and the Public Statutes. All decisions of the court of questions arising under the first seven sections of chapter one hundred and one of the 1 Pub. St. c. 173, § 4. Commissioners' Report, 154, n. "■ Pub. St. u. 173, § 3. 80 EEAl ACTIONS. [CH. XII. Revised Statutes are applicable to the corresponding provisions of the General Statutes ^ and PubUc Statutes.^ § 11. The right of entry mentioned in the statutes above re- ferred to, does not mean the right of possession as between landlord and tenant for years, but the right to go on the land for the purpose of regaining the seisin.^ § 12. Judgments in Real Actions. ■_ — The demandant may recover any specific part of the premises or any undivided portion thereof to which he proves a sufficient title, though such part or portion is less than is demanded in the writ. Upon the death of either demandant or tenant the action may proceed by or against the survivors and the heirs or devisees of the deceased party.* § 13. Damages. — If an issue of fact is found for the de- mandant, the jury should at the same time assess his damages, unless it is otherwise ordered by the court. He will be entitled to recover as damages for the rents and profits of the premises, for destruction or waste of the buildings, for which the tenant is by law chargeable.^ The tenant will be allowed compensation for improvements as provided in the statutes.^ The clear annual value which the demandant is entitled to recover is measured by the fair rentable value of the property for any purpose to which it might be applied.'^ § 14. When the tenant claims allo-nrance for improvements, he shall enter on the record a suggestion of his claim, with a request, that, if judgment is rendered for the demandant, the value of the improvements may be ascertained and allowed to him. • The suggestion must be entered at the same term with the plea, if any, unless the court for sufficient reason allows it to be entered afterwards ; and if judgment is rendered for the demandant without a plea, the suggestion may be entered at such stage of the proceedings as the court may prescribe or allow.^ 1 Gen. St. c. 134, § 1-6. « Pub. St. c. 173, § 17, 18, 21, 27. 2 Pub. St. c. 173, § 1-6. ' McMahan v. Bowe, 114 Mass. 140, " Brewer v. Stevens, 13 Allen, 346. 148. * Pub. St. c. 173, § 10, 11. 8 Pab. St. c. 173, § 19, 20. 5 Pub. St. c. 173, § 12-16. § 16.] REAL ACTIONS. 81 The provisions before referred to concerning the rents and profits to be recovered in a writ of entry, or the allowance for improvements made on the demanded premises, or concerning the estimated value of the premises without the improve- ments, do not apply to an action brought by a mortgagee, or his heirs or assigns, against a mortgagor, or his heirs or assigns, for the recovery of the mortgaged premises.^ § 15. Execution for Possession to be recorded. — The officer who serves an execution issuing upon a judgment for posses- sion must, within three months after the service, and before the return of the execution into the clerk's office, cause such execution with his doings thereon to be recorded in the regis- try of deeds for the county or district in which the lands affected thereby are situated, the expense of which recording shall be added to his charge for service.^ Unless so returned and recorded, the rights of a lona fide purchaser without notice, before the execution is recorded, will not be aifected by it.° § 16. Action by Writ of Entry to foreclose a Mortgage. — After a breach of the condition of a mortgage of real estate, the mortgagee may recover possession of the mortgaged prem- ises by a suit commenced by a writ of entry.* This action, although in form an action at law, is in efPect a suit in equity to foreclose. It is not conducted accord- ing to the rules applicable to actions at common law.^ If the demandant establishes his title he does not thereby necessarily get possession of the mortgaged premises, but only a condi- tional judgment, " that if the defendant within two months after the judgment pays to the plaintiff the sum so found due on the mortgage, with interest and the costs of the suit, the mortgage shall be void, and the defendant shall hold the premises discharged thereof; otherwise, that the plaintiff shall have his execution for possession and for costs of suit." 6 1 Pub. St. c. 173, § 48. 6 Walcntt v. Spencer, U Mass. 409 ; 2 Pub. St. c. 173, § 46. Fletcher v. Carey, 103 Mass. 475, 479 ; 8 Bobbins v. Bice, 7 Gray, 202, Amidown m. Peck, 11 Met. 467, 469. 204. 6 Pub. St. c. 181, § 5 ; Palmer <;. * Pub. St. c. 181, § 1. Fowley, 5 Gray, 545, 547. 6 82 KEAL ACTIONS. [CH. XII. § 17. The Declaration in 'Writ of Entry to foreclose. — The mortgagee may declare on his own seisin, stating that it is in mortgage.^ The declaration should describe the mortgaged premises with such accuracy that the same may be identified by the description alone. It should show that a foreclosure is desired. In a suit to foreclose a mortgage, which the wife of the mortgagor has signed for the purpose of releasing dower, it is not necessary to join her as a defendant in order to defeat her inchoate right of dower in the equity of redemption.^ § 18. "When the Action •will lie to foreclose. — If two dis- tinct closes are included in one mortgage, and the mortgagor conveys the closes to different persons, the mortgagee must bring two separate actions to foreclose the mortgage.^ Two mortgages of different parcels of land, and given to secure different debts, cannot be foreclosed by one action,* but two mortgages on the same land may be foreclosed by one action.^ But a demandant, in a writ of entry counting on his seisin in fee and in mortgage, may show that he has title under two mortgages.^ A mortgagee may maintain such action, even though he is already in possession of the mortgaged prem- ises,^ and the commencement of the action will not be an abandonment of the previous possession.^ § 19. Trial of Question as to the Mortgage Debt. — The statr utes provide that the court shall inquire and determine how much is due to the plaintiff on the mortgage.® It is held that this does not confine the hearing to an in- quiry by the presiding judge exclusively, that it is competent for the judge to submit to a jury upon such hearings any ques- tions of fact in controversy that he may deem of such a char- acter as to require the intervention of a jury.^" § 20. Conditional Judgment. — If it appears to the court 1 Pub. St. c. 181, § 3. See ante, ' Merriam v. Merriam, 6 Cush. 91 ; p. 76, and post p. 552. Beavin v. Gove, 102 Mass. 298. i* Pitts V. Aldrich, 11 Allen, 39. 8 page v. Robinson, 10 Cash. 99- ' Taylor v. Porter, 7 Mass. 355. 101. * Peck V. Hapgood, 10 Met. 172, 173. » Pub. St. t. 181, § 5. * Pierce v. Balkam, 2 Cush. 374. w Slayton v. Mclntire, 11 Gray, 271, 6 Grant v. Galway, 122 Mass. 135. 275 ; Foss v. Hildreth, 10 Allen, 77. § 22.] EEAL ACTIONS. 83 upon default, demurrer, verdict, or otherwise, that the plain- tiff is entitled to the possession of the premises for breach of the condition of the mortgage, the court will on motion of either party award the conditional judgment before stated, provided, however, that unless the defendant is the mortga- gor or bis assignee, or entitled to hold the premises under him, be will not be allowed to redeem the premises except with the consent of the plaintiff ; but judgment may be en- tered for the plaintiff for possession as at common law, unless one or the other of the parties moves for the conditional judgment.'' The statutes provide that " if the condition of the mort- gage is for the doing of something other than the payment of money, or if but part of the money the paj'ment of which is secured by the mortgage is due, the court shall vary the terms of the judgment as the case may require, but shall award execution as before provided, unless the defendant within two months after the judgment performs what is therein prescribed." ^ § 21. When Conditional Judgment is discharged. — When a conditional judgment has been entered as before stated and the defendant shall within two months thereafter do and per- form all the conditions thereof, he will hold the mortgaged premises discharged thereof,^ and the statutes provide that "if, after an execution has issued on a judgment for pos- session and has been levied, the amount due on the mort- gage and the costs are paid in full, the mortgagee, his executors, administrators, or assigns, shall at the expense of the mortgagor enter on the margin of the record of the execution an acknowledgment of satisfaction, or make to the mortgagor a deed of release, which shall be recorded with proper notes of reference to the execution discharged thereby."* § 22. Of 'Writ of Dower. — When a woman is entitled to dower, and it is not set out to her by the heir or other tenant of the freehold to her Satisfaction according to the true in- 1 Pub. St. c. 181, § 3, 4, 8 Pub. St. c. 181, § 5. 2 Pub. St. c. 181, § 6. * Pub. St. c. 181, § 7. 84 BEAL ACTIONS. [CH. XII. tendment of law, nor assigned to her by the probate court, she may recover the same by a writ of dower.^ The form of the writ may be an original summons and attachment, and it may be served like other writs of that description.^ § 23. Demand of Dower. — The widow, before commencing the suit, must in writing demand her dower of the person seised of the freehold at the time when she makes such de- mand, unless such person is unknown to her or absent from the Commonwealth, and she must not commence her action therefor before the expiration of one month, nor after the expiration of one year, from such demand ; but this will not preclude her from making a new demand, and commencing an action thereon.^ A demand of dower in writing, signed by the widow or by her agent or attorney, containing a general description of the premises in which the dower is claimed, and given to the tenant of the freehold, or left at his last and usual place of abode, will be a sufficient demand of dower.* § 24. Against whom the Action must be brought. — The action shall be brought against the person who is tenant of the freehold at the time when it is commenced ; but if the demand was not made on such tenant, he shall be liable for damages only for the time during which he held the premises.^ § 25. The rules of pleading are according to the rules in other real actions. § 26. Declaration in Writ of Dower. — Judge Jackson in his work on Real Actions, says : " It has not been usual in our practice to add a count in writs of dower corresponding in some measure to the counts in other real actions. It con- tains, besides the averment of the previous demand by the widow, a direct averment of the seisin of the husband. There appears to be no reason for. inserting this latter aver- ment, which would not apply equally to the averment of the marriage and the death of the husband. All three of these 1 Pnb. St. c. 174, § I. » Pub. St. c. T74, § 2. 2 Harrington v. Conolly, 116 Mass. * Pub. St. c. 174, § 3. 69, 70. See ante, p. 15. « Pub. St. e. 174, § 10. § 29.] EEAL ACTIONS. 85 points are equally material ; they are all traversable ; yet it has never, as I apprehend, been deemed necessary with us to insert the two latter averments." ^ Precedents for such aver- ments may be found in the same work.^ § 27. Defendant's Plea.— The author last quoted says: "As the demandant's right to dower depends on three distinct and independent points, to wit, the marriage, the seisin of the husband, and his death, all of which are equally material, it follows that there is no general issue in the common accepta- tion of that term, that is, no plea that puts in issue the whole gist of the declaration ; and if the tenant means to deny either of these three facts he must traverse it distinctly." ^ The defendant may also, in his plea, aver other matters as a defence to the action, as, for instance, a release of dower, a devise or bequest to the demandant by her husband in lieu of dower, and an acceptance by her, or a jointure made before marriage, or that her dower has been assigned.* An issue of fact is tried by a jury. § 28. Damages for Detention. — If the demandant recovers judgment for her dower, she may in the same suit recover damages for its detention, to be assessed by a jury under the direction of the court, unless the parties file a written agree- ment in court that commissioners may set out the dower.^ She may also recover further damages to the time of final judgment in the case.® But she cannot recover damages for any time prior to the demand on which the action is founded, even though a prior demand has been made.'' . § 29. Interlocutory Judgment that Plaintiff have Dov7er. — If upon default, or on the trial of an issue, it appears that the demandant is entitled to her dower, the court will award the interlocutory judgment therefor, and issue its warrant to three disinterested persons as commissioners to set out said dower equally and impartially and as conveniently as may be, 1 Jatekson on Real Actions, 312. « Harrington v. ConoUy, 116 Mass. 2 lb. 69, 70. ' Jackson on Real Artions, 317. ' WMtaker v. Greer, 129 Mass. 417, * Jackson on Real Actions, 318-323. 418. S Pub. St. c. 174, § 4. 86 EEAL ACTIONS. [CH. XH. according to their best skill and judgment, and, if an agree- ment has been filed, to award damages for detention.^ § 30. Action of Waste, or Tort in the Nature of Waste. — If a tenant in dower, by the curtesy, or for life or years, com- mits or suffers waste on the premises, the person having the next immediate estate of inheritance may have an action of waste against such tenant, wherein he may recover the place wasted and the amount of the damage. An heir may bring such action for waste done in the time of his ancestor.^ If there are several persons having the next immediate estate of inheritance, they must sever in this action.^ § 31. Issue and Trial. — If an issue of fact is joined in the cause, it will be tried by a jury in the usual manner, either with or without a view of the premises, as the court shaU order ; and the jury that inquire of the waste must assess the damages.* § 32. Action of Tort in the Nature of Waste. — A person entitled to such action of waste may instead thereof bring an action of tort in the nature of waste, in which he shall recover such damages as he has suffered by reason of the waste.^ In this action all the owners of the place wasted must join as plaintiffs.® This action, if commenced in the lifetime of the tenant, may be prosecuted against his executors or administrators ; and such action may be originally brought against the execu- tors or administrators of the tenant for waste committed or suffered in the tenant's lifetime.^ A joint tenant, coparcener, or tenant in common, who com- mits waste, is liable for triple damages.^ So also is a person who commits waste during the pendency of an action against him.® § 33. Real and Mixed Actions survive. — In real or mixed 1 Pub. St. c. 174, § 5. 6 Bullock v. Hayward, 10 Allen, 460, 2 Pub. St. c. 1T9, § I. 461. 8 Bullock V. Hayward, 10 Allen, 460, ' Pub. St. c. 179, § 5. 461. " Pub. St. c. 179, § 6. * Pub. St. c. 179, § 2. 9 Pub. St. t. 179, § 8. 6 Pub. St. c. 179, § 3. § 33.] EEAL ACTIONS. 87 actions, if the demandant dies before final judgment, his heir or devisee may appear and prosecute the suit. If the tenant dies, his heir may appear or be cited in to defend the suit. If there are several demandants, and any of them dies before final judgment, tiie heir or devisee of the deceased party will be admitted, on motion, to prosecute the suit jointly v?ith the survivoi-s, in the same manner as if he had originally joined with them in commencing the suit. If the interest of the deceased party passes to the surviv- ing demandants, or if there is no motion for the admission of another person as heir or devisee at the term when the death of the deceased party is suggested, or within such further time as the court may allow, the surviving demandants may prosecute the suit for so much of the premises in question as may then be claimed by them.^ An action commenced bj'' one who has only a life estate in land the title of which is in question, is abated by his death.2 1 Pub. St. c. 165, § 14-16. " Ferriu v. Kenney, 10 Met. 294; Brown v. Kendall, 13 Gray, 272. 88 SUMMARY PROCESS FOB [OH. XIII. CHAPTER XIII. SUMMAEY PROCESS FOB, THE KBCOVEET OF LANDS. § 1. This process is given by statute to enable a person entitled to the possession of lands or tenements to obtain possession of them speedily and cheaply. The chapter of the Public Statutes so entitled ^ is substantially a re-enactment of the chapter in the General Statutes entitled " Of Forcible Entry and Detainer." ^ The provisions of both of these stat- utes with some modifications are similar to the statutes of England on the same subject, especially that of 8 Hen. VI. c. 9. Similar provisions are contained in the laws of the col- ony of Massachusetts,^ and in chapter eight of the statutes of 1874. Subject to some changes from time to time, these pro- visions have ever since been a part of our statute law. § 2. The process is commenced by a -ro-rit in the form of an original summons in which the defendant is summoned to answer to the complaint of the plaintiff for that the defend- ant is in possession of the lands or tenements in question, describing them, which he holds unlawfully and against the right of the plaintiff ; and no other declaration is required.* § 3. This Process will lie in the following named Classes of Cases : — First. When a forcible entry into lands or tenements has been made. Second. When a peaceable entry has been made and the possession is unlawfully held by force. Third. When the lessee of lands or tenements, or a per- son holding under such lessee, holds possession without right 1 Pub. St. 0. 17.5. s Ancient Charters and Laws, c. 72. 2 Gen. St, c. 137. * Pub. St. c. 175,§ 2. Seeante,p.l7. § 4.] RECOVERY OF LANDS. 89 after the determination of a lease by its own limitation, by notice to quit or otherwise. Fourth. When a mortgage of real estate has been fore- closed by a sale under a power contained therein or other- wise.-' These four clauses of the statute will be separately con- sidered. Under the first and second clauses the question arises, — § 4. "What is a Forcible Entry or Detention ? — The statutes provide that " no person shall make an entry into lands or tenements, except in cases where his entry is allowed by law ; and in such cases he shall not enter with force but in a peaceable manner." ^ In the case of Saunders v. Robinson,^ Shaw, C. J., said: "A mere unlawful entry into lands, though it would jus- tify the common averment of vi et armis, or force of arms, is not the forcible entry contemplated by the statute. It must be something more, either an original entry or subse- quent detainer with strong hand ; and this may be by the use of actual force and violence, or by menace of force accompa- nied by arms, and a manifest intent to carry such threat into effect calculated to create terror or alarm by an exhibit of arms, a display of numbers, or other means manifesting an open and visible determination forcibly to make the entry or forcibly to resist the entry of another." In that case it was held that where the relation of landlord and tenant does not exist, this process cannot be maintained unless there has been an actual forcible entry and detainer, by violence or threats of violence in taking or keeping pos- session, or some act or threat of force adapted to alarm the party or deter him from apprehension of forcible resistance. Such complaint is not sustained by proof of a mere unlawful entiy into a house and a refusal to leave it. This process can be maintained by one tenant in common against a cotenant who has forcibly ejected him ; * by a mort- 1 Pub. St. u. 1715, § 1. ' Presbrey v. Presbrey, 13 Allen, 281, 2 Pub. St. e. 126, § 15. 284. » 5 Met. 343, 345. 90 SUMMARY PROCESS FOE [CH. XIII. gagee in possession after an entry to foreclose against one who has entered in a peaceable manner, but without right, and afterwards holds possession by force ; ^ by a tenant at will against one who forcibly enters and ejects him.^ A mort- gagee of land who has not taken possession thereof cannot maintain this process, neither can a purchaser under a power of sale contained in a mortgage of land where neither he nor the mortgagee has taken possession,^ nor can a lessee of such purchaser who has never been in possession maintain the action.* § 5. Process by Landlord against Tenant. — Under the third clause the facts to be proved by the plaintiff to enable him to maintain this process are : first, that the relation of lessor and lessee or of landlord and tenant, has subsisted between him or those under whom he claims, and the defendant or those under whom he claims ; andj second, that the lease or tenancy has been determined. § 6. What constitutes the Relation of Landlord and Tenant. — This question will sometimes arise in considering whether this process will lie on a certain state of facts. There are numerous decisions on this point, but they re- late to general law and not to practice. We will cite only a few which relate particularly to practice. This summary process can be maintained by. a landlord against a tenant at sufferance without notice to quit.^ It is held that where an owner of premises leased them for years while they were in the occupation of a tenant at will, he became a tenant at sufferance, and that this process might be maintained by the tenant for years without notice to quit or making an entry, although the tenant at will had no notice that they had been leased for years.^ A tenant in common may maintain an action against a cotenant who forcibly keeps him out of possession.^ 1 Mitchell V. Stanley, 15 Gray, 319. B Kinsley v. Ames, 2 Met. 29 ; Bene- 2 Walker v. Sharpe, 14 Allen, 43. diet v. Morse, 10 Met. 223. " Boyle V. Boyle, 121 Mass. 85. « Hildreth v. Conant, 10 Met. 298, * Woodside v. Eidgeway, 126 Mass. 302. 292. 7 Walker v. Sharpe, 14 Allen, 43. § 8.] EECOVEEY OF LANDS. 91 If the landlord conveys or makes a written lease of lands or tenements held by a tenant at will to commence immedi- ately, the estate at will is thereby terminated.^ The tenant thereby becomes a tenant at sufferance, and is not entitled to notice to quit.^ So also an undertenant, after the termination of his landlord's tenancy, becomes a tenant at sufferance and is not entitled to notice to quit.^ The landlord may enter and expel a tenant at sufferance without force, or may have the process for forcible entry and detainer.* Such tenant at sufferance should have sufficient time to re- move from the premises and to remain or enter for that pur- pose, without being deemed a trespasser. Forty-eight hours is held to be a sufficient time to remove from the lower story of a house.^ § 7. To recover Premises used for Illegal Purposes. — This process can also be maintained against a tenant or occupant who under a lawful title of a building or tenement uses such premises or any part thereof for the purposes of prostitution, lewdness, or illegal gaming, or for the illegal keeping or sale of intoxicating liquors.^ If a lessee underlets the premises and knowingly permits them to be used for such purposes, the lessor may maintain this process to recover possession of them without entry or notice to quit.^ The use of a portion of leased premises for the illegal sale of intoxicating liquors by an undertenant of the lessee and without the lessee's knowledge will not annul the lease, and in such case this process could not be maintained.^ § 8. Demand of Rent to terminate a Lease. — If a person is desirous to avail himself of his right to enter and defeat the estate of the lessee for a breach of condition by neglect to pay rent, he must make a demand for the rent, for the 1 1 Green). Criise, t. 9, c. 1, § 13; 5 Pratt u. Farrar, 10 Allen, 519. Hollis V. Pool, 3 Met. 350 ; Kelly v. « Pub. St. t. 101, § 6, 8, and c. 175. Waite, 12 Met. 300. ' Preseott v. Kyle, 103 Mass. 381. 2 Evans v. Eeed, 5 Gray, 308. 8 O'Connell a. M'Grath, 14 Allen, 3 lb. 289. » Hollis ». Pool, 3 Met. 350. 92 SUMMARY PKOCESS FOE [CH. XIII. non-payment of which he intends to enter. The common- law rule with regard to this is quite strict. 1. The demand must be made precisely on the day when the rent is due and payable by the lessee, to save the for- feiture. 2. It must be made at a convenient time before sunset of that day. 3. It must be made at a suitable and proper place upon the land, or at or in the tenement, unless some other place is agreed upon by the parties.^ 4. The demand must be of the precise amount due on the day it becomes due. 6. If any particular place is agreed upon by the parties for the payment of rent, a demand should be made at such place. 2 A demand should be made, though there is no one present upon whom to make it. A demand made after or before the proper time, or at an improper place, will not authorize an entry to defeat the estate.^ § 9. Entry for Breach of Condition. — At common law a demand of rent, as before stated, and a neglect or refusal to pay, do not alone determine the lease. It is a breach of the condition of the lease, but the lease is not determined thereby, unless the lessor enter for the breach of the condi- tions.* The lessor must make an entry upon the premises the next day, to determine the lease. Nothing short of this will defeat the estate of the lessee.^ It is held in Connecticut that, to constitute an ouster of a tenant by the entry of the landlord, the entry must be for the purpose of taking possession, as shown by the acts and declarations of the landlord at the time of the trans- action.^ iWashb. on Eeal Prop. 321, and notes. * Fifty Associates ?;. Howland, 11 ' lb. Met. 99. ' Greenl. Crase, 283 ; McMurphy v. ' Washb. on Real Prop. 452. Minot, 4 N. H. 2.5 ; McQuesten v. Mor- 6 Holly v. Brown, 14 Conn. 255. gan, 34 N. H. 400, 407 ; Bradstreet o. Clark, 21 Pick. 389. § 12.] EECOTERY OF LANDS, 93 § 10. A forfeiture may be saved, even after such a demand has been made, by the lessee's tendering the rent due at any- time long enough before twelve o'clock at night to count the money. And if there is no place fixed for the payment, the tenant may save a forfeiture by going upon the premises at a proper time and actually tendering it there. But merely having the money there without offering it would " not be sufficient.^ In an action to enforce a forfeiture of the estate of a lessee for non-payment of rent, it is held that when the omission to pay was by accident or mistake, if the lessee will bring the money due into court, the courts of law as well as equity will stay proceedings for that purpose and prevent the forfeiture.^ § 11. Action after Foreclosure of Mortgage. — The fourth clause of the statute relates to the use of this process by a person entitled to the possession of real estate by virtue of a mortgage which is foreclosed. It is a re-enactment of the Statute of 1879, c. 237. In the case of Warren v. James,^ in which the construction of this act was considered by the court. Lord, J., said : " It is an act ancillary to and part of the process of foreclosure. Whether, as in the case of landlord and tenant, the process is to be confined to mortgagee against mortgagor, we need not determine ; but it must clearly be limited to the mortgagee and, at farthest, to the person to whom the mortgagor has authorized the mortgagee to sell the estate in foreclosure. The only person who is entitled to bring this action is the person who is entitled to the possession of the property and the rents thereof from the time of the foreclosure." This proceeding is a part of the process of foreclosure, and the process is limited to the party foreclosing and the party foreclosed upon.^ In the case here cited the action was brought by the grantee of the person who purchased the estate under the 1 Washb. on Eeal Prop. 322, and » 130 Mass. 540, 542. notes. * Warren v. James, 130 Mass. 540, " Atkins V. Chilson, 11 Met. 112. 542, 543. 94 SUMMAEY PEOCESS FOE [CH. XIII. power of sale contained in the mortgage, and it was held that he could not maintain the action. § 13. What Courts have Jurisdiction of the Process. — The action may be brought before a police, district, or municipal court, or a trial justice in the county where the premises are situated ; and when the premises are situated in the judicial district of the first district court of Plymouth, or of either of the municipal courts of the city of Boston, the action must be brought in those courts respectively, § 14. Service of Writ. — When a defendant resides in a county other than that in which the premises are situ- ated, the writ may. be served upon him in the county of hia residence.^ It must be served seven days at least before the return- day, and the suit shall be conducted like other civil actions before such justices or courts. § 15. Judgment. — " If it appears by default or on trial that the plaintifp is entitled to the possession of the premises, he shall have judgment and execution for the possession and for his costs. " If the plaintiff becomes nonsuit, or fails to prove his right to the possession, the defendant shall have judgment and execution for his costs." ^ § 16. Recognizance. — When judgment is rendered for the plaintiff for the recovery of the demanded premises, and the defendant appeals from such judgment, or when the de- fendant removes the case as provided in the statutes, before such appeal or removal is allowed, the defendant must rec- ognize to the plaintiff with surety or sureties, to enter the action, and to pay to the plaintiff, if the final judgment is in his favor, all rent then due, aU intervening rent, and all damage and loss which he may sustain by reason of the with- holding of the possession of the demanded premises and by reason of any injury done thereto during such withholding, together with all costs, until the delivery of the possession thereof to him.* 1 Pub. St. c. 175, § 5. 8 Pub. St. c. 175, § 6. 2 Pub. St. c. 175, § 2-4. § 18.] EECOVEET OF LANDS. 95 § 17. 'When a Bond is required. — When the action is brought in a municipal court, the defendant must give a bond with sufficient surety or sureties, instead of a recog- nizance.^ The recognizance or bond in such case must be in a specific sum.2 When the action is to recover premises after the fore- closure of a mortgage thereon, the condition of the recog- nizance or bond, as the case may be, must be for the entry of the action, and the payment to the plaintiff, if the final judgment is in his favor, of aU costs and of a reasonable sum as rent of the premises from the day when the mortgage was foreclosed until possession of the premises is obtained by the plaintiff. ^ § 18. Scire Facias on the Judgment. — Upon final judgment for the plaintiff, all sums of money then due to him may be recovered by writ of scire facias or action of contract upon the recognizance.* 1 Pub. St. c. 175, § 6. s Pub. St. c. 175, § 7. 2 Warner v. Howard, 121 Mass. 82. * Pub. St. c. 175, § 6. 96 INDOESEMENT OF WKITS. [CH. XIV. CHAPTER XIV. INDOESEMENT OF WEITS. § 1. ■Writs to be indorsed before Entry. — The statutes pro- vide that the following named writs and processes shall be indorsed before entry, namely : — Original writs, writs of audita querela, scire facias by pri- vate persons on judgment or recognizance, writs of error in civil cases, petitions for certiorari, and bills in equity, in which the plaintiff is not an inhabitant of the State ; but if there is more than one plaintiff, and one of them is an inhabitant of the State, the process need not be indorsed.^ Also, every petition for partition filed originally either in the Supreme Judicial Court or Superior Court,* petitions for the enforcement of mechanics' liens,^ and the writs in all ac- tions on bonds given by executors and administrators for the discharge of their trusts.* § 2. The indorsers must in all cases be persons of sufficient pecuniary responsibility, and also residents in the Common- wealth. § 3. How Indorsements should be made. — When the in- dorsement is made by reason of the plaintiffs not being an inhabitant of the State, the indorser may only write his name on the back of the writ or other process. An indorsement of a writ in this form, " From the office of William R. Hooper, " was held sufficient where an indorse- ment was required.^ If one indorse a writ with his name only, it is sufficient.* An indorsement, " A. B., by C. D., hia attorney," will bind the attorney as indorser.^ 1 Pub, St. c. 161, § 24. 6 Slate v. Aokley, 8 Cush. 98. 2 Pub. St. u. 178, § 6. « Gilbert u. Nantucket Bank, 5 8 Pub. St. c. 191, § 14. Mass. 97. ♦ Pub. St. c. 143, § 15. 7 Chadwick v. Upton, 3 Pick. 442. § 5.] INDORSEMENT OF WKITS. . 97 The indorsement must be on the back of the writ.^ When a foreign corporation is plaintiff, the writ must be indorsed by an inhabitant of the State. It is held that any mode of signing the Christian name and surname, which binds the party to a bond or a note, is sufficient to satisfy the requisition of the statute. All such modes, therefore, of abbreviation as are warranted by cus- tom, as " Jno." for " John," " Bart." for " Bartholomew," or expressing one or more Christian names by initial letters, which have long been considered as sufficient and binding signatures to obligations, are held sufficient indorsements under the Statute of 1784, c. 28. That statute required origi- ♦ nal writs to be indorsed by the plaintiff with his " Christian name and surname," or by his attorney. An attorney-at-law who stamps his name on the back of a writ in favor of a resi- dent of another State in these words, " From the office of A. V. Lynde," is liable as indorser.^ § 4. When by Accident a 'Writ is not indorsed. — When a plaintiff who is not an inhabitant of the Commonwealth has, by accident, mistake, or inadvertence, failed to have his writ, bill, or process so indorsed, the court may, in any stage of the case, upon such terms as seem just and reasonable, allow him to furnish an indorser with the same effect as if the writ, bill or process had been indorsed before the entry thereof.^ .§ 5. Where a Minor or Non Compos is Plaintiff. — As minors cannot sue in their own names, their suits are generally brought by their prochein ami. And where both the minor and the prochein ami live either in the State or out of it, there can be no difficulty as to the indorsement of the writ ; for in the former case no indorsement is necessary, and in the latter it must be by some person, other than either, who does live in the State. A doubt can arise only where one of the persons — either the minor or the prochein ami — lives within and the other without the State. The doctrine that a minor who sues by prochein ami is a party to the suit, and as such is liable 1 Hartwell v. Hemenway, 7 Pick. 2 Wheeler v. Lynde, 1 Allen, 402. 117. 8 Pub. St. c. 161, § 25. ' 98 , INDOESEMENT OF WRITS. [CH. XIV. to the defendant for costs if the defendant prevail, is well settled in this State.^ It seems, therefore, that when the minor lives out of the State he must furnish an indorser to his writ. The same rule applies in case a minor or non compos sues by his guardian. § 6. In actions on bonds given by ezecutors and adminis- trators for the discharge of their trusts, the statutes provide that " the writ shall be indorsed by the persons for whose benefit or at whose request the action is brought, or by their attorney, and the indorsers shall be liable for the costs of suit, and execution therefor shall be issued against them, and not against the judge. When the action is brought for the benefit of creditors or next of kin, as before provided, there shall be a further indorsement on the writ, specifying that it is brought for the benefit of such creditors or next of kin." ^ If the creditor or next of kin dies, his executor or admin- istrator is by law substituted in his place, and succeeds to his rights to maintain an action on the bonds, and must indorse the writ.* § 7. Writs on Probate Bonds. — A bond given to a judge of probate by an executor, administrator, guardian, or trustee, for the due execution of his trust, may be put in suit for the benefit of any creditor, next of kin, legatee, or other person aggrieved by any maladministration of the principal of such bond.* There are three cases, and three only, in which a person may sue the probate bond for his own benefit with- out application to the judge of probate, making a special in- dorsement thereof on the writ, and have a special award of execution to his own use : (1) a creditor of a solvent estate who has a judgment against the executor ; (2) a creditor of an insolvent estate for his share after a decree of distribution ; (3) a person next of kin and distributee of an intestate estate after a decree of distribution in his favor.^ I Smith V. Floyd, 1 Pick. 275 ; Slater ■• White v. Weatherbee, 126 Mass. B. Nason, 15 Pick. 34.5, 348; Bradford 450-452. K.French, 110 Mass. 367; Crandall v. * Pub. St. c. 143, § 10-13. Slaid, 11 Met. 288. « Newcoinb «. Williams, 9 Met. 525, " Pub. St. c. 143, § 15. 536 ; White w. Weatherbee, 126 Mass. 450. § 11.] INDORSEMENT OF WKITS. 99 § 8. Indorsement of Writs after Entry. — The statutes pro- vide that " if a plaintiff in any writ, suit, or process at law or in equity after its commencement removes firom the State, the court where the suit is pending, on motion of any other party, and in all cases when it appears reasonable, will require the plaintiff to procure a sufficient indorser. " If an indorser removes from the State, or is insufficient, the court, if it appears reasonable, will require the plaintiff to procure a sufficient indorser. " The Supreme Judicial Court may require an indorser or security for the payment of costs in any probate or insolvent case or proceeding in that court. " If the plaintiff fails in any case to procure an indorser ac- cording to the order of the court, the suit wiU be dismissed and the defendant recover his costs." ^ § 9. Change of Indorser. — The court in which any suit is pending may permit the name of an indorser to be stricken out, and a new and sufficient indorser to be substituted.^ § 10. Liability of Indorser. — Every indorser will be liable for costs from the commencement of the sUit, in like manner as indorsers before the entry of an action.^ The suit against the indorser must be commenced within one year after the original judgment. The defendant must use reasonable diligence to recover the costs of the plaintiff in the suit before he can have re- course to the surety. The original plaintiff must avoid, or if he does not he must be unable to pay the costs. Whether the principal has or has not avoided is a matter of record arising from the return upon the execution. If non inventus be returned on the execution, such return is con- clusive evidence of his avoidance.* § 11. Poverty of PlaintiEf not a Cause for Indorser. — In the case of Feneley v. Mahoney,^ in Massachusetts, the defendant 1 Pub. St. t. 167, § 30-33. Wixon v. Lapham, 5 Allen, 206 ; Davis 2 Pub. St. t. 167, § 34. V. Whithead, 1 Allen, 276. » Pub. St. t. 167, § 34. ' 21 Pick. 212. * Kuggles V. Ives, 6 Mass. 494, 495 ; 100 INDORSEMENT OF WEITS. [CH. XIV. moved that the plaintiff be required to furnish a suflScient indorser of the writ, on the ground that he was poor and irresponsible in point of property. The court then held that it was clearly within the power of the court to require an indorser ; that this was a power the exercise of which de- pended upon their own judgment of what was reasonable under the circumstances presented to them, and then proceed to say : " Mere poverty is, in no case, deemed a sufficient cause to require an indorser. It is one element in most cases where the motion is made, but is never regarded as sufficient of itself." § 12. To 'Whom an Indorser is liable. — It appears evident that any person who may, in any way, defend against the plaintiff's suit, and obtain a judgment against him for costs, may also hold the indorser. And if there should be several defendants, some of whom were acquitted or discharged, though the plaintiff prevailed and had judgment against the rest, there can be no doubt that the indorser would be liable to the former for their costs. In Caldwell v. Jackson ^ it was held that the indorser of a writ is not only liable to the defendant for his costs, but like- wise to the officers of the court for their fees, such as for the service or entry of writs. § 13. Remedy against an Indorser — The form of action against an indorser of a writ in Massachusetts is scire facias.^ 1 7 Cranch, 276. 2 Davis 5. Whithead, 1 AUen, 276 ; Miller v. Washburn, 11 Mass. 411. § 3.] SERVICE AND RETURN OF WRITS. 101 CHAPTER XV. SERVICE AND EETTJKN OF "WRITS. § 1. By what Officers Writs may be served. — The statutes provide that " sheriffs, deputy sheriffs, constables, and other officers shall serve all lawful processes issued by a court, judge, judicial officer, or county commissioners, and legally directed to them." ^ Practically all legal processes are served by the sheriffs, deputy sheriffs, or constables. No person is legally qualified to perform the duties of either of those offices until he has given the official bond required by the statute.^ § 2. The authority of sheriffs and their deputies to serve processes is very general, and in civil processes is not limited by the damages claimed in the suit. S 3. When the Sheriff is a Party to the Action. — Questions of importance have arisen as to cases in which a sheriff or his deputy was so far a party as to render a service of the writ by him or his deputy unlawful and void. It is held, that when the process was served by another deputy of the same sheriff who was a party, the service was not for that cause void.^ Where a town, precinct, or parish was a party, it has always been held that a sheriff who was an inhabitant was incompe- tent to serve the writ.* In the case of other corporations, as banks, turnpike companies, and the like, it was decided, in the case of the Merchants' Bank v. Cook, that a sheriff who was a stockholder in a bank which commenced a suit was not a 1 Pub. St. c. 160, § 5. 8 Mass. 96 ; Brewer v. New Gloucester, 2 Pub! St! c! 27, § 113, 114. 1* Mass. 216 ; Merchants' Bank v. Cook, 8 Gage «. Graffam, 11 Mass. 181. 4 Pick. 405. 4 First Parish of Sutton v. Cole, 102 SERVICE AND BETUEN OF WEITS. [CH. XT. party within the meaning of the statute, and that the service of the writ by him was good.^ It seems also to be settled, by the reasoning of the court and the principle of that decision, that the sheriff must be a party on the record to prevent him from serving the writ, and that his being in any way interested, or being in fact the sole party in interest, would make no difference. § 4. Service of a writ against a sheriff must be made by the sheriff or deputy sheriff of an adjoining county .2 § 5. Powers of Constables to serve Processes. — A constable who has given an official bond in a sum not less than one thousand dollars may serve processes in which the damages do not exceed two hundred dollars. When such bond given by a constable is for three thousand dollars, he may serve process, in which the damages do not exceed three hundred, dollars.^ The powers of constables are fully defined in the statutes here referred to.* The service of an execution duly commenced by a con- stable may be completed by him after the expiration of his term of office.^ § 6. Modes of Service of Different Kinds of TVrits. — In ref- erence to the mode of service of writs, it may be here stated that there are but four varieties of writs, and that the subject may be considered under four heads ; namely, service of an original summons, of a capias, a capias and attachment, and a summons and attachment. First. Service of an original summons, whenever it is used, is made by reading the writ to the defendant, or by deliver- ing to him an attested copy of it, or leaving such copy for him, as provided by the statute. Second. Service of a capias is made by arresting the de- fendant. This subject will be considered under the head of Arrest on Mesne Process, &c. Third. Service of a capias and attachment. The form of 1 See also Adams v. Wiscasset Bank, * Pub. St. c. 25, § 20. 1 Greenl. 361 ; Osborn v. United States » Pub. St. c. 27, § 113, H4. Bank, 9 Wheat. 738; United States * Pub. St. c. 27, § 113-121. Bank v. Planters' Bank, 9 Wheat. 904. ' O'Brien v. Annis, 120 Mass. 143. § 7.] SEETICE AND EETUEN OF WEITS. 103 this writ is the same as a capias, as before stated. It is in the alternative, either " to attach the goods or estate of the defend- ant," or " for want thereof to take his body." When served according to the second command, it is a writ of attachment ; and the service is made by attachment of the property of the defendant, and giving him a summons to appear at court, or by serving such summons for him, as required by statute. The service of the summons should always be made after the attachment. Fourth. Service of a summons and attachment. The ser- vice of this writ is the same as that of a capias and attach- ment when property is attached on it. The property of the defendant is attached and a summons served on him, as stated in the paragraph above. Care should always be taken not to confound the original summons with the summons and attachment. In many cases, either of them may be used at pleasure : but the former is served by reading, or by an attested copy of the writ itself ; and the latter, by an attachment of property^ either real or nominal, and by leaving the common summons as before stated. The common summons, when used with a writ of summons and attachment, must be filled up and served in the same manner as when used with a writ of capias and attachment. When no property of the defendant liable to attachment can be found, it is a common practice for the officer to state in his return upon the writ that he attached a chip as the prop- erty of the defendant.^ The various modes in which writs may be served on a defendant are particularly described in the Public Statutes referred to here in note, and need not be more particularly stated in this work.^ § 7. -When Process must be served. — When a process is required to be served fourteen days at least before the term at which it is returnable, in computing the time with a view to the service of the process, the day on which the process is 1 Peabody v. Hamilton, 106 Mass. » Pub. St. c 161, § 26-39 ; c. 155, 217. § 19- 104 SERVICE AND KETURN OF WRITS. [CH. XV. served is one of the fourteen.^ The same rule is applicable when the process is required to be seven days before the term, or seven days before a particular day named in the process. § 8. Instruction to the OfBcer as to Service. — In general, it is the duty of the officer who receives a writ legally directed to him, to serve the same according to the directions con- tained therein. Where the writ given him contains but a single command, as in the case of an "original summons," by which he is merely directed to summon, or of a "sum- mons and attachment," by which he is commanded to attach and to summon, no special instructions to him are necessary, except in the latter, whether he is to make a real or a nomi- nal attachment merely. The only writ in which the command is in the alternative is the one in most common use, which, as we have seen,^ is given in the statute as a " capias and attachment," but which includes the " capias " and the " capias and attach- ment," and is, in fact, the one or the other, solely according to the mode of service. When an officer receives such a writ, with no further direc- tions than those contained in it, he should not make an arrest, but serve the writ as a capias and attachment. An attorney who makes a writ, and the officer who serves it, should take especial care, the former not to direct, and the latter not to make, an arrest on mesne process which is not clearly au- thorized by law. When the direction to an officer is specific and definite, he is bound to follow it, if possible and legal, and a service in any other way would render him liable. The plaintiff or his attorney should indorse upon the writ directions as to its service, such as " common service," " attach property," or more particular directions, according to circumstances. Such instructions, however, may be given orally, and will be equally binding upon the officer.'' A special direction upon a writ, or special parol instruc- 1 Butler V. Fessenden, 12 Cnsh. 78. ' Howe's Pr. 134. » Ante, p. 11. § 8.] SERVICE AND EETURN OF WEITS. 105 tions to an officer, may justify him in not going beyond them ; but they do not deprive him of the legal authority to obey the general command in the precept, to attach sufficient to secure the demand, if he have opportunity to do it, and choose to avail himself of it. Thus, if he attach more prop- erty than he is specially directed to, he cannot afterwards do anything to impair such attachment, to the injury of the rights already acquired. ^ An officer may require specific directions and indemnity in all eases of doubt and difficulty.^ If oral instructions be given to the officer by the plaintiff or his attorney after, and different from, the directions upon the writ, the oral instructions must be obeyed, and not those upon the writ.^ When an officer has received a legal writ, with parti- cular instructions to attach property, if there be reasonable ground to induce him to believe that in making an attach- ment he may mistake or expose himself to an action for damages, by attaching or seizing goods not the property of the debtor, he may insist upon the creditor's showing him the goods, and giving him sufficient security, to indemnify him for any mistake he may make by conforming to the creditor's directions.* So if the instructions be to take the body, the officer, if there be any question as to the identity of the defendant, may call upon the plaintiff to point him out, and to indem- nify him against the consequences of a mistake.^ But if the officer do not request the creditor or his attor- ney to show him the debtor's goods or person, or to indemnify him, but undertake to execute the' precept of the writ as well as he can, he is answerable to the creditor, if he do not attach or arrest the defendant's property or person, according to the instructions, if they were within his reach, and if the creditor be injured by the neglect.^ 1 Turner v. Austin, 16 Mass. 181. * Bond v. Ward, 7 Mass. 123 ; Marsh ^Richards v. Gilmore, 11 N. H. u. Gold, 2 Pick. 290. 493. ' Marsh v. Gold, 2 Pick. 285. 8 Marshall v. Hosmer, 4 Mass. 60; ' Bond k. Ward, 7 Mass. 123; Marsh Almy V. Wolcott, 13 Mass. 73. v. Gold, 2 Pick. 285. 106 SERVICE AND EETUEN OF WRITS. [CH. XV. If an officer have in his hands a writ with general instruc- tions to attach property, and another writ against the same defendant is afterwards put into his hands, and particular property pointed out to him by the plaintiff in the second writ, not before known by him to exist as the property of the defendant, he is bound to attach the same upon the second writ, and not upon the first.^ § 9. What an Officer must tell. — An officer is bound to tell whether he has any other writs in his possession against a de- fendant, or has made any prior attachments upon his property, if asked by a person who puts a writ into his hands against such defendant.^ § 10. On whom Writs are to be served. — Where there is but a single defendant, the service is, of course, made upon him ; and where there are several individual defendants, the service must be made upon all of them. The same is true of the service of trustee writs, both upon the principal defendants and the trustees, except in case of a trustee writ, issuing from a police, municipal, or district court, or trial justice, when partners are summoned as trustees ; in such case service on one partner is sufficient.^ § 11. Officer's Return. — The officer, having made service of the writ, is required, on or before the return-day thereof, to return it, with his doings thereon, to the court or justice from whom it issues. This is done in pursuance of the last command in the writ ; and strictly the officer should return it directly to the court, that is, to the clerk's office, or to the justice ; but by the practice in many counties he returns it to the attorney from whom he received it. The precept of the writ directs the officer to make a return thereof at a time specified. It might, be a question whether he ought not to write the return as soon as he has made the service, that, in case of his death, the service may be of record. In cases of attachment, where writs are frequently in the officer's hands for long periods, it would be well to have complete memoranda made on the writ at the time. Un- 1 Goddard v. Anstin, 15 Mass. 133; ' Tnmer v. Austin, 16 Mass. 181. Turner v. Austin, 16 Mass. 181, » Pub. St. c. 183, § 7. § 14.] SERVICE AND EETUEN OF WEITS. 107 der any other practice, numerous and important attachments must depend upon the life of almost every sheriff and deputy sheriff. And the failure might be considered a loss through his neglect, for which his estate would be responsible.^ An officer may return his proceedings after going out of office.^ If a deputy dies after levying an execution, but without making a return, the sheriff may certify the doings of the deputy upon the writ, and return it to the clerk's office. 2 An officer's return cannot be denied in the original ac- tion. It is taken to be true as between the parties to the action. If false, the remedy is against the officer for a false return. An officer cannot in an action against himself, either in pleading or by evidence, falsify his own return.* His return is conclusive evidence of the competency of the ap- praisers of real estate taken on execution ; ^ also that " J. S.," the attorney of the debtor, chose an appraiser, and that " J. S." was his attorney.® § 12. The return of the officer's aoings should be in writing upon, or annexed to, the writ, and be signed by him. It must specially state the manner in which he has served the writ, and should specify all the facts necessary to show that he has duly served it.'^ § 13. Extra Compensation of Officer. — The twenty-eighth rule of the Superior Court of Massachusetts provides that " when any officer claims extra compensation in serving a precept for removing or keeping property, the same shall not be allowed, unless the officer return with his precept a bill of particulars of the expenses, together with his affidavit that such expenses were actually incurred, and that the charges are reasonable." § 14. Fees must be indorsed on Writ. — No fees for the service of any writ or precept of which the officer is required to ma^fe a return will be allowed, unless indorsed on the 1 Howe's Pr. 195 ; Ingersol v. Saw- ' Baker v. Baker, 125 Mass. 7. yer, 2 Pick. 276. ' Chappell v. Hunt, 8 Gray, 427 2 Welsh V. Joy, 13 Pick. 477. Dooley v. Wolcott, 4 Allen, 406. 8 Ingersol v. Sawyer, 2 Pick. 276. ' Perry v. Dover, 12 Pick. 211. * Gardner v. Hosmer, 6 Mass. 325 ; Simmons v. Bradford, 15 Mass. 82. 108 SERVICE AND RETURN OF WRITS. [CH. XT. writ or precept ; and no allowance for the use of horse and carriage in the service of a civil process will be made, unless the officer certifies that it was necessary for him to use a horse and carriage, and that he actually used such convey- ance the distance set forth in his certificate.^ § 15. Return of "Writ by Mail. — When the person deliver- ing or forwarding a process to an officer for service requests said officer to return it by mail or express, compensation will not be allowed for more than twenty miles' travel in the service, unless the officer actually and necessarily travels more than that distance in serving the same, exclusive of travel from the place of service to the place of return ; and an officer in such case, who properly directs such process to the place of return and delivers it prepaid at the post-office, or to an express company, will not be liable for damages growing out of its failure to reach its destination.^ § 16. Amendment of Officer's Returns. — Great liberality is exercised in allowing amendments to returns of officers, to supply omissions, or to correct palpable errors, for the pur- pose of sustaining proceedings when the justice of the case requires it.^ Before an execution is returned into the clerk's office, the officer may amend his return without leave of court.* A clerical error by which the name of the creditor was substituted in one place for that of the appraiser was allowed to be amended.^ A constable was allowed to amend his return on a venire by stating the day on which it was served,^ and by adding his signature to the return. An officer may be allowed to amend his return of an original writ although more than six years have elapsed ; but he does it at his own risk, being liable to an action if by such amendment he makes a false return.^ But he will not, 1 Pub. St. c. 199, § 28. 6 Brown v. Washington, 110 Mass. s Pub. St. c. 199, § 7. 529. » Shepherd v. Jackson, 16 Gray, 600; 8 \ pjck. ige. MoCormick 0. Carroll, 103 Mass. 151. ' Thatcher v. Miller, 11 Mass. 413; * Welsh V. Joy, 13 Pick. 477. 13 Mass. 270. § 18.] SERVICE AND EETUEN OF WRITS. 109 after having returned his precept, be permitted to alter or amend his return so as to affect the rights of others who are not parties.^ It is held, however, that an amendment may be made by leave of court, of an officer's return of an attachment of land, by affixing his signature to the return, although another officer has duly returned a subsequent attachment of the same land in another suit, and that the first attachment was valid.2 Before an execution is actually returned into the clerk's office the officer may amend his return without leave.^ § 17. Form of Amendment. — A motion for leave to amend should be in writing, with the proposed amendment attached to it, so that the opposing party and the court may see what is the nature and extent of the amendment. If the amend- ment is allowed by the court, the amendment is made. The writ or plea amended should remain as before. With regard to an amendment of a return of an officer, the rule is differ- ent in Massachusetts, and is proper anywhere. The officer should first file his motion for leave to amend, stating accu- rately the words of the proposed amendment. The state- ments in the proposed amendment should be sworn to by the officer. If the amendment is allowed, then the officer should in- dorse the amendment on the writ, and sign it, so that the original return and the amendment to it may go together, the latter explaining the former. This is important, as other- wise, in case the amendment should be lost, the record would show only the original return. It maj"- not be essential to the validity of the amendment that it should be indorsed on the writ as here stated, but that is the safe and proper course. The form of the indorsement is given in note.^ § 18. Where the form of a -writ or process is defective, the 1 Williams u. Brackett, 8 Mass. * " Supeeiok Coitrt. 240. " Suffolk, ss. Teem, 187 . 2 Childs V. Barrows, 9 Met. 413. " And now A. B., the officer who 8 Welsh V. Joy, 13 Pick. 477. made service of this writ and the return thereon, by leave of court, amends his said return by," &c. 110 SERVICE AND KETURN OF WKITS. [CH. XV. court on motion will order new process to be issued and served.^ § 19. Supplementary process taay also be ordered by the court, and special precept to arrest a defendant or attach his property.^ > Pub. St. c. 161, § 84. 2 Pub. St. c. 161, § 85, 86. § 3.] ATTACHMENT OF PEOPBETY, 111 CHAPTER XVI. ATTACHMENT OP PEOPEETT, § 1. Origin of Attachments. — The practice of attaching the property of the defendant on mesne process, and holding it to satisfy any judgment which the plaintiff might recover, was unknown to the common law. In real actions, however, property might sometimes be distrained, in order to compel a party to appear in the suit ; but as soon as the party did appear, the attachment was dissolved. From this practice of distraining to compel an appearance, the law of attachment took its origin. The right of attaching property in Massachusetts was first extended to all actions ; afterwards, the attachment was allowed to continue until judgment ; and finally, it was provided that it should con- tinue for thirty days after judgment, to enable the creditor to seize it on execution, which is the present law.l § 2. The service of a writ of attachment, or capias and attachment, may be made by attaching the property of the defendant, and summoning him to appear at the court to which the writ is returnable upon the return-day thereof. The amount to which his property should be attached should be inserted in the writ. § 3. What Property may be attached. — The statutes pro- vide that " all real and personal estate liable to be taken on execution (except such personal estate as, from its nature or situation, has been considered as exempt according to the principles of the common law as adopted and practised in 1 Ancient Charters, &c., 50, 192, 193, 106 Mass. 507 ; Bond v. Ward, 7 Mass. 367; Sts. of Mass. 1784, c. 28, § 11 ; 123-128. Pub. St. c. 161, § 52 ; Gardner v. Barnes, 112 ATTACHMENT OF PROPEETY. [ch: XVI. this commonwealth, and except as provided in the following section) may be attached upon the original writ in any action in which debt or damages are recoverable, and may be held as security to satisfy such judgment as the plaintiff may re- cover ; but no attachment of real estate shall be made on a writ returnable before a trial justice, or police, district, or municipal court, unless the debt or damages demanded there- in exceed twenty dollars."^ All chattels, real or personal, and all other goods which by the common law are liable to be taken on execution, may be taken and sold thereon, except as is otherwise provided in chapter one hundred and seventy-one of the Public Statutes. Current gold or silver coin may be taken on execution, and may be paid to the creditor as money collected. Bank-notes and all other bills or evidences of debt, issued by a moneyed corporation and circulated as money, may be taken on execution and paid to the creditor at their par value as money collected, if he will accept them ; otherwise they shall be sold like other chattels.^ § 4. The interest of an individual partner in the partnership effects may be attached on mesne process and taken on execu- tion. In the case of Peirce v. Jackson, Chief Justice Parsons, in giving the opinion of the court, said : " At common law, a partnership stack belongs to the partnership, and one partner has no interest in it but his share of what is remaining after all the partnership debts are paid, he also accounting for what he may owe to the firm. Consequently, all the debts due from the joint fund must first be discharged before any partner can appropriate any part of it to his own use, or pay any of his private debts ; and a creditor of one of the part- ners cannot claim any interest but what belongs to his debtor." 3 The effect of this rule is that the only attachable interest of one of the copartners by a separate creditor was the sur- plus of the joint estate which might remain after discharging aU joint demands upon it, and necessarily gives a preference 1 Pub. St. c. 161, § 38. 8 6 Mass. 242. 2 Pub. St. c. 171, § 31-33. § 6.] ATTACHMENT OF PROPEETY. 113 to partnership creditors in the application of the partnership property.^ This doctrine is held also in New Hampshire ^ and Connecticut,^ and is a principle of common law. As to levy of an execution on the interest of a partner in the partnership property, see post, Chapter on Levy and Set-off of Executions. § 5. 'When goodB of a debtor are mixed with goods of another, and in the possession of the debtor, and so mixed that the offi- cer, on due inquiry, cannot distinguish them, the whole may be attached by the ofBcer ; and he will not be liable to an action, unless, upon notice and demand by the stranger, he re- fuse or delay to deliver him his part of the goods attached.* The mere intermingling by a furniture dealer with his other goods of furniture sold to him in fraud of the seller's creditors, without proof of unlawful motive in the purchaser, does not entitle the creditors of the seller to attach the pur- chaser's whole stock of goods as the seller's property, without requesting the purchaser to point out the portion of his goods held under such sale.^ § 6. AVhat is Ezempt from Attachm.ent by Statute. — By provisions of the statutes, various articles of property of a debtor, to a limited extent, are exempted from attach- ment.^ " First. The necessary wearing apparel of himself and of his wife and children ; one bedstead, bed, and the necessary bedding for every two persons of the family ; one iron stove used for warming the dwelling-house, and fuel not exceeding the value of twenty dollars procured and designed for the use of the family." Under this section, it is held that when the debtor's family consisted of himself and wife and three small boys, that two beds only were exempted from attachment, those being all that were necessary for the family, though, if the children 1 Lewis U.Webber, 116 Mass. 450, ^ Smith v. Sanborn, 6 Gray, 134; 455 ; Story on Part. 379, and note. Harding v. Coburn, 12 Met. 333 ; Davis 2 Tappan v. Blaisdel), 5 N. H. 190. v. Stone, 120 Mass. 228 ; VTilson v. Lane, s Filley v. Phelps, 18 Conn. 294. 33 N. H. 466. * Bond V. Ward, 7 Mass. 123 ; Shum- « Pub. St. c. 171, § 34. way V. Butter, 8 Pick. 443-447. 8 114 ATTACHMENT OF PEOPEETY. [CH. XVI. had been of different sexes, the case might have been otherr wise 1 Cloth and trimmings put into the hands of a tailor by the debtor, to be made into clothes necessary for him, are also exempt under this clause.^ A householder who has neither wife nor child is entitled to hold exempt from attachment only one bed. Bed and bedding for his two boarders were held not to be ex- empt.^ "Second. Other household furniture necessary for" a debtor " and his family, not exceeding three hundred dollars in value." * Under this clause it is held that a debtor is entitled to hold, under all circumstances, exempt from attachment^ household furniture of the class considered necessary for himself and family not exceeding the amount in value ex- empted ; and an attaching officer or creditor cannot inquire whether or not, in a particular case, that amount of furni- ture is necessary.^ It has been held that a sofa and two carpets, of a plain and cheap character, were exempt, when, together with other furniture, they did not exceed the amount exempted.^ " Third. The Bibles, school-books, and library, used by him or his family, not exceeding fifty dollars in value." ^ "Fourth. One cow, six sheep, one swine, and two tons of hay." 8 Under the exemption of oiie swine, it has been held that a swine when killed is protected from attachment and seizure, as well as when alive.® When the debtor owned two cows, one mortgaged and the other not mortgaged, the former was held to be exempt from attachment.^" A heifer twenty months old, and which has not begun to 1 Glidden v. Smith, 15 Mass. 170. « Davlin v. Stone, 4 Cush. 359. 2 Richardson v. Buswell, 10 Met. ' Pub. St. c. 171, § 34. 506. 8 Pub. St. c. 171, §34. 3 Brown v. Wait, 19 Pick. 470. 9 Gibson v. Jenney, 15 Mass. 205. * Pub. St. c. 171, § 34. 10 Tryon v. Mansir, 2 Allen, 219. * Marman v. Merritt, 11 Allen, 582. § 6.] ATTACHMENT 017 PRGPEETT. 115 give milk, is exempt from execution and attachment as a cow.i A heifer is a young cow, and as such is exempt from attachment if the debtor has no other .^ " Fifth. The tools, implements, and fixtures necessary for carrying on his trade or business, not exceeding one hundred dollars in value." ^ The term " tools," in the foregoing statute, it has been held, was used to designate those implements which were commonly used by one man in some manual labor neces- sary for his subsistence, and does not extend to complicated machinery, as a printing-press, requiring many hands to set it in motion.* So printing types and forms have been held not to be tools necessary for the trade or occupation of a printer, within the foregoing statute, and therefore are not exempted from attach- ment and execution.^ In Howard v. Williams,^ it is said by the court that " the design and the effect of the law are to secure to handicrafts- men the means by which they are accustomed to obtain sub- sistence in their respective occupations. The exemption is not limited merely to the tools used by the tradesman with his own hands, but comprises such, in character and amount^ as are necessarj'' to enable him to prosecute his appropriate business in a convenient and usual manner; and the only rule by which it can be restricted is that of good sense and discretion in reference to the circumstances of each particular case. It would be too narrow a construction of a humane and beneficial statute to deny to tradesmen whose occupation can hardly be prosecuted at all, much less to any profitable end, without the aid of assistants, as journeymen and appren- tices, the necessary means of their employment." And accord- ingly, where the debtor himself worked on watches, and his apprentice or journeyman on jewelry, and the jury found the 1 Carruth v. Grassie, 11 Gray, 211. 6 Danforth t>. Woodward, 10 Kck. 2 Johnson v. Babcock, 8 Allen, 583. 423. 8 Pub. St. c. 171, § 34. « 2 Pick. 80. ^ Buckingham v.Billings,13 Mass. 82. 116 ATTACHMENT OF PEOPERTY. [CH. XVI. debtor's principal business was that of a jeweller, it was held that the tools used by the apprentice or journeyman were exempted. It is held in Maine that articles correctly designated as machines in popular language cannot be considered as exempted by the words of the statute, "the tools of any debtor."! A shovel, pickaxe, dung-fork, and hoe used by a debtor in tilling his land are exempt, although tilling land is not his principal business.^ In the case of Wallace v. Bartlett,^ it is held that the stat- ute exempting from execution tools, implements, and fixtures necessary for carrying on the debtor's trade or business, does not apply to the business of keeping a meat market and grocer's shop. Chief Justice Gray, in the opinion in that case, said: "The well-settled rule of construction of this enactment is, that it is intended for the protection of mechanics, artisans, and handicraftsmen and others whose manual labor and skill afford means of earning their live- lihood. It has accordingly been applied to tailors, shoe- makers, milliners, pedlers, and carriage-makers." But it has been held not to include those merely engaged in the business of buying and selling merchandise, nor to exempt the weights and measures, horses and carriages, or other articles used by them in their trade. In Caswell v. Keith et als., it is held that a mechanic's tools are not rendered liable to attachment under the statute by his temporarily suspending the exercise of his trade, with an intention to resume it.* In relation to the various statutes exempting certain articles to a limited extent from attachment, the court said : " The provisions of all our statutes upon this subject are manifestly intended, as in the very nature of things they could only be, for the relief and benefit of persons possessed of very little 1 Knox V. Chadbourne, 28 Me. 160. ^ iqs Mass. 52-54, and cases there 2 Pierce v. Gray, 7 Gray, 67 ; Eager cited. K. Taylor, 9 Allen, 156. 4 12 Gray, 351-354, and cases there cited. § 6.] ATTACHMENT OF PEOPEETY. 117 property, and dependent for subsistence upon daily labor or the moderate income derived from their usual and ordinary avocations. They should, therefore, be interpreted, as they always have been, so far as the language in which they are expressed will admit of it, so as more effectually to accom- plish the plaiu and obvious purpose of the legislature in their enactment." ' A violin and bow of a debtor, whose sole business is that of a musician, as a member of a military and quadrille band, and who obtains most of his support by playing upon his violin, are exempt from attachment if the value of all his musical instruments is less than one hundred dollars.^ A sewing-machine of less than one hundred dollars in value, and necessary for carrying on the trade or business of the debtor, was held to be exempt from attachment, although the debtor owned another sewing-machine.^ The exemption is not limited to the tools of a single trade. Where a debtor was both a musician and a tinner, it was held that both his cornet and his tinner's tools, not exceeding together the sum of one hundred dollars, were exempt.* So also a shovel, pickaxe, and hoe used by a debtor in tilling his land were held to be exempt from attachment, although tilling land was not his principal business.^ The same principle is applied in relation to other trades.^ Machines of simple construction, moved by the hand or foot, and used in the manufacture of boots, are exempt from attachment, although the owner employs a number of men under him in carrying on the business, by whom the machines are generally used.'' The provisions of the statutes exempting a certain amount of tools and implements, &c., from attachment and execution, do not apply to partnership property.* " Sixth. Materials and stock designed and procured by " a debtor, " and necessary for carrying on his trade or business, 1 12 Gray, 351-354, and cases there ^ Fierce v. Gray, 7 Gray, 67. cited. s Eager v. Taylor, 9 Allen, 156 ; 2 Goddard v. Chaffee, 2 Allen, 395. Howard v. Williams, 2 Pick. 80. 8 Rayner v. Whicher, 6 Allen, 292. ' Daniels v. Hayward, 5 Allen, 43. ♦ Baker v. Willis, 123 Mass. 194. ' Pond v. Kimball, 101 Mass. 105. 118 ATTACHMENT OF PKOPEKTY. [CH. XVL and intended to be used or wrought therein, not exceeding one hundred dollars in value." ^ Many of the cases referred to under the fifth clause of the statute are equally applicable in the construction of this clausBj especially the cases of Howard v. Williams ^ and Wal- lace V. Bartlett.^ This provision is intended for the protection of mechanics and others whose manual labor and skill afford means of earning their livelihood, but not for the protection of those engaged in the buying and selling. Thus a grocer's stock in trade is not exempt.* Also the stock of goods, scales, and measures, horse, wagon, and harness of a shopkeeper in the country.^ " Seventh. Provisions necessary and procured and in- tended for the use of the family, not exceeding fifty dollars in value." ® The exemption in this clause is not limited to things abso- lutely indispensable.'^ The exemption of provisions necessary, procured and intended for the use Of the family of the debtor, extends to corn, potatoes, and cabbages planted and raised by the debtor for the use of his family, and ripe for harvest, though not severed from the soil.® Provisions kept by a debtor, both for the purpose of sale and for the use of his family, no portion thereof being set aside for the use of his family, are not exempt.® "Eighth. One pew occupied by him or his family in a house of public worship ; provided that nothing herein con- tained shall prevent the sale of a pew for the non-payment of a tax legally laid tliereon. " Ninth. The boat, fishing-tackle, and nets of fishermen, actually used by them in the prosecution of their business, to the value of one hundred dollars. " Tenth. The uniform of an officer or soldier in the militia, 1 Pub. St. 0. 171, § 34. « Pub. St c. 171, § 34. « 2 Pick. 80. ' Darlin v. Stone, 4 Cush. 359. » 108 Mass. 52-54. » Mulligan v. Newton, 16 Gray, 211. « Reed v. Neale, 10 Gray, 242. .» Clapp v. Thomas, 5 Allen, 158. 6 Wilson V. Elliot, 7 Gray, 69. § 9.] ATTACHMENT OF PEOPERTT. 119 and the arms and accoutrements required by law to be kept by him. " Eleventh. Rights of burial and tombs while in use as repositories for the dead. " Twelfth. One sewing-machine, not exceeding one hun- dred dollars in value, in actual use by each debtor or by his family. " Thirteenth. Shares in co-operative associations formed under chapter one hundred and six, not exceeding twenty dollars in value in the aggregate." ^ § 7. Wages, when Exempt. — The statutes provide that " when wages for the personal labor and services of a defendant are attached for a debt or demand other than for necessaries furnished to him or to his family, there shall be reserved in the hands of the trustee a sum not exceeding twenty dollars, which shall be exempt from such attachment ; and when such wages are attached on a demand for such necessaries, there shall be so reserved a sum not exceeding ten dollars." ^ §8. Homestead. — It is provided by statute that " every householder having a family shall be entitled to an estate of homestead, to the extent in value of eight hundred dol- lars, in the farm or lot of land and buildings thereon, owned or rightly possessed by lease or otherwise 'and occupied by him as a residence, and such estate shall be exempt from at- tachment, levy on execution, and sale for the payment of his debts or legacies, and from the laws of conveyance, descent, and devise," except as provided in the statutes.^ § 9. Personal Property Mortgaged or Pledged. — Any per- sonal property, not exempted by law from attachment, which is mortgaged, pledged, or subjected to any lien created by law, may be attached in a suit against the mortgagor or pledgor either by common attachment or trustee process, unless the title of the mortgagee, pledgee, or holder has become absolute ; provided the person in whose favor the attachment is made complies with the statute provisions rel- ative thereto.* 1 Pub. St. c. 171, § 34. ' Pub. St. u. 123, § 1. 2 Pub. St. c. 183, § 30. 1 Pub. St. t. 161, § 74-83. 120 ATTACHMENT OF PROPERTY. [CH. XVI. A mortgagee's interest in personal property in his posses- sion after breach of condition and before foreclosure is not subject to attachment.^ § 10. Property exempt for Special Reasons. — Generally, goods which cannot be returned in the same plight in which they were taken, but which would be materially injured by removing them, are not liable to attachment. Thus, green hides, in a vat, are not the subject of attachment.^ Nor are private papers and account books.^ A boat, cable, or anchor belonging to a vessel, when they are in use, and necessary to the safety of the vessel, are not liable to attachment. But when not so in use, or necessary, they may be taken.* A watch upon a debtor's person is not liable to attachment.* Negotiable notes due the debtor are not capable of being attached.® Intoxicating liquors are held not to be liable to attachment.'' § 11. Fixtures cannot be attached. — Fixtures which can- not be removed without injury to the estate cannot be at- tached ; but if they can be so removed, they can be attached. What are fixtures is often a question difficult to determine. It is a mixed question of law and fact. Many articles, really chattels in themselves, are so annexed to the freehold as to be regarded as fixtures. The application of this principle may be found in the cases referred to in the notes, and in a great number of other eases.^ § 12. What Constitutes an Attachment of Personal Estate. — To constitute an attachment of personal estate, the attach- ing officer must have the actual possession and custody of the property attached, as much as in seizure on execution. 1 Prout V. Root, 116 Mass. 410. 8 Q^Ae v. Ward, 14 Mass. 352 ; Bag- 2 Bond V. Ward, 7 Mass. 123. ley v. White, 4 Pick. 397 ; Ashmnn v. 8 Oystead v. Shed, 12 Mass. 506. Williams, 8 Pick. 402 ; Winslow v. Mer- < Briggs V. Strange, 17 Mass. 405. chants' Ins. Co., 4 Met. 313 ; McLaugh- 6 Mack ij. Parks, 8 Gray, 517, and lin w. Nash, 14 Allen, 139; O'Donnell cases there cited. v. Hitchcock, 118 Mass. 401; Bliss v. 6 Maine Insurance Co. w. Weeks, 7 Whitney, 9 Allen, 114; Hanrahan v. Mass. 438. O'Eeilly, 102 Mass. 201 ; Holbrook "< Ingalls V. Baker, 13 Allen, 449; u. Chamberlin, 116 Mass. 155; McCon- Kiff «. Old Colony & Newport R. R. Co., nell v. Blood, 1 23 Mass. 47. 117 Mass. 591. § 13.] ATTACHMENT OF PROPERTY. 121 It seems that going on board a ship, in which there are goods of the debtor, but not breaking open the hatches where the goods are stowed, is not such a possession by the officer as to make a valid attachment.^ It is not necessary that the goods should be removed from the place where they are attached ,2 or that every article should be taken hold of by the officer. It is sufficient if he be in view of the whole, with the power of actually seiz- ing them.^ Even the use by the debtor or his family of such articles as will not be injured by use, if by the permission of the officer or his servant, will not vacate the attachment, pro- vided there be a keeper over them, or that there be any other acts of notoriety which may notify creditors that the goods are in the custody of the law.* The debtor, however, should not have the management of such property in the same manner as if no such attachment had been made, but some person must be authorized and re- quired, where actual possession is not kept, to give notice, in case a second attachment is attempted.^ Locking the door of the room of a building containing the property of the debtor, and taking the key, is a sufficient possession and custody to constitute and preserve a lawful attachment, although the debtor may have another key by which he may gain access to the store.^ § 13. How an Officer may keep Property attached. — An officer may retain his possession of property by employing a keeper of it. If, however, the keeper delivers it to the debtor the attachment will be dissolved.^ The defendant's wife may be employed as a keeper of the property attached on a writ against her husband.^ 1 Lane y. Jackson, 5 Mass. 157; Wat- ^ Bridge v. Wyman, 14 Mass. 190; son V. Todd, 5 Mass. 271 ; but see Nay- Bagley v. White, 4 Pick. 395. lor V. Dennie, 8 Pick. 198. ^ Denny v. Warren, 16 Mass. 420 ; 2 Train v. Wellington, 12 Mass. 495. Gordon v. Jenney, 16 Mass. 465. 8 Train v. Wellington, 12 Mass. 495; ' Baker v. Warren, 6 Gray, 527. 16 Johns. 288. ^ Farrington v. Edgerly, 13 Allen, * Train v. Wellington, 12 Mass. 495 ; 453. 16 Johns. 288; Baldwin ». Jackson, 12 Mass. 131 ; Merrill v. Sawyer, 8 Pick.397. 122 ATTACHMENT OF PEOPEETY. [CH. XVI. Personal property which has been attached, or its proceeds when sold, pursuant to the statute, will remain in the hands of the officer, to satisfy the executions which may issue, un- less before the property or proceeds shall have been actually taken in execution the defendant die, in which case, if any will of his shall be found, and letters testamentary issue thereon, or administration on his estate be granted within the State, the attachment shall be dissolved, and the property, or its proceeds if sold, shall be accounted for and delivered up to the executor or administrator of such defendant. § 14. When Property is attached on Several Writs. — If property has been attached by the same officer on two or more writs, and a sale of it be made on the first one for more than enough to satisfy that demand, the officer may retain the residue of the money in his hands to satisfy the demands upon which it was subsequently attached. § 15. An Officer may appoint a Keeper. — The statutes provide that " when personal property is attached, or is taken on execution, the officer may appoint a keeper thereof, if necessary, and in such case shall, upon the written request of the defendant, remove such property or the keeper with- out unreasonable delay." ^ " Personal property attached may be kept, subject to the provisions of the preceding section, upon the premises where the same is found, unless the owner or occupant of such premises in writing requests the officer to remove his keeper therefrom ; and when the defendant in writing requests the officer to allow property attached upon the premises of the defendant to remain there until he may give bond to dissolve the attachment, the property shall not be removed until he has had reasonable opportunity to give such bond." ^ In the case of Davis v. Stone, which was decided previous to the enactment of the statute above quoted, it was held that an officer, after attaching furniture in a dwelling-house in the city of Boston, and placing a keeper over it, neglected to remove it, or take any steps towards such removal, for seven hours in the middle of the day, as matter of law, the officer 1 Pub. St. c. 161, § 42. 2 Pub. St. c. 161, § 43. § 16.] ATTACHMTrXT OF PEOPEBTY. 123 delayed for an unreasonable time to remove the chattels, and that he became a trespasser.^ See also cases cited in note.^ § 16. Bovr to preserve Attadunent of Immovable Property. — Although attachments of personal property are not gen- erally valid against subsequent purchasers or attaching creditors, unless the officer take poisession of the property attached, yet property of the nature of things immovable is not within the reason of the general rule, and i<, con- sequently, to be excepted from its operation. There are various kinds of personal property of such a character or so situated that it is difficult or impossible for the attaching officer to take and retain actual possession of them, which are, nevertheless, liable to attachment. Such property can be attached, and the attachment retained, only in the manner provided by statute. The statutes provide that "when an attachment is made of articles of personal estate which, by reason of their bulk or other cause, cannot be immediately removed, a certified copy of the writ (without the declaration) and of the return of the attachment may, at any time within three days thereafter, be deposited in the office of the clerk of the city or town in which it is made ; and such attachment shall be equally valid and effectual as if the articles had been retained in the pos- session and custody of the officer." ^ In computing the three days for the deposit of a copy of the writ, the day of the attachment is to be excluded.* An attachment in this form is held to be good of tobacco stored in bams, banging on poles, in process of curing, and in such condition that it cannot be moved without great damage to it.^ Such attachment is also good of fifty tons of pig iron ; * cord wood and charcoal in large quantities ; ^ twenty boxes of large glass weighing five or six hundred pounds each.* 1 120 Mass. 228. * Cheshire National Bank r. Jewett, 2 Williams v. Powell, 101 Mass. 467 ; 119 Mass. 241. Cutler V. Howe, 122 Mass. 541, 544. • ScoriU v. Root, 10 AUen, 414. ' Pnb. St. c. 161, § 69, 70. ' Eeed s. Howard, 2 Met. 36. * Bemis v. Leonard, 118 Masd. 502, ' Polley v. Lenox Iron Works, 4 Al- 509. len, 329, 331. 124 ATTACHMENT OF PROPERTY. [CH. XVI. In the case last cited, Chapman, J., said: "The statute provisions referred to were designed to obviate great prac- tical difficulties which had arisen in respect to the kind of possession and custody necessary to perfect and continue an attachment of personal property which could not be easily removed." § 17. Different Attachments of same Property. — The offi- cer, having once taken the requisite pqssession of the prop- erty, upon the first writ served, may return subsequent attachments of the same property, upon other writs, in favor of the same or other creditors, so long as his actual or con- structive possession continues ; ^ and no overt act is neces- sary to constitute such subsequent attachments. But if such actual or constructive possession of the goods by him have been in any way lost, he cannot again attach them without an actual seizure.^ Prom the rule that possession of the goods must be taken and kept by the attaching officer, it follows that goods in the possession of one officer, by virtue of an attachment, cannot be attached at the suit of another creditor by another officer.^ And different deputies of the same sheriff are different offi- cers within this last rule.* § 18. Duty of a Second OfScer. — If a second deputy, therefore, come to attach property, and find it already in legal custody, he is bound in duty to deliver his precept to the one who has the goods, and require him to attach. If he do not, he is guilty of a breach of duty, for which he will be responsible. And if instead of so doing he seize the property, he is liable to an action by the first attaching officer.^ If, however, the first attaching officer be a constable, and the second who comes be a deputy sheriff, with a writ beyond a constable's jurisdiction, it seems that the constable must either select a sufficient amount to satisfy his attachment, 1 Turner o. Austin, 16 Mass. 181; s Watson v. Todd, 5 Mass. 271; "Vinton v. Bradford, 13 Mass. 114 ; Pub. Vinton v. Bradford, 13 Mass. 114. St. c. 161, § 40. 4 Thompson v. Marsh, 14 Mass. 269. 2 Knap V. Sprague, 9 Mass. 258; 6 15. Carrington v. Smith, 8 Pick. 419; Howe's Pr. 170. § 21.] ATTACHMENT OF PEOPEETY. 125 and leave the residue for the deputy, or, if that be impossible, by reason that the property is indivisible, or from any other cause, he must surrender the property, and give his writ to the deputy, who will be bound to give it priority over his own writ, in the order of attachments. ^ § 19. Sale of Attached Property by Consent. — When per- sonal property is attached, whether on one or more writs, and the debtor and all the attaching creditors consent in writing to the sale, the attaching officer must sell it in the manner prescribed by law for selling like property on execution ; and the proceeds of the sale, after deducting the necessary charges, will be held by the officer, subject to the attach- ments, 'and must be disposed of in like manner as the prop- erty would have been held and disposed of if it had remained unsold.^ § 20. Sale of Live Animals, &c., attached. — When an attachment is made of live animals, or of goods or chattels which are liable to perish, waste, or be greatly reduced in value by keeping, or which cannot be kept without great and disproportionate expense, aud the parties do not consent to a sale thereof as before provided, the property so attached must, upon the request of either of the parties interested, be examined, appraised, and sold or otherwise disposed of, in the manner provided by statute.^ The statutes provide that the property shall be appraised, and prescribe the manner of the sale and the proceedings to be had relative thereto.* It IS not necessary that the officer should make such sale a part of his return.® He is liable, in an action of contract, for the proceeds of the sale to the party entitled thereto.^ § 21. How an Attachment of Real Estate is made. — The act of making the attachment is a mere mental operation. The officer merely minutes upon the writ, as soon as it is put into his hands, the exact time of his receiving it, and in 1 Howe's Pr. 171. « Eastman v. Eveleth, 4 Met. 137, 2 Pub. St. c. 161, § 89. 145. 3 Pub. St. c. 161, § 90. « Appleton v. Bancroft, 10 Met. 231 ; * Pub. St. c. 161, § 91, 94. Wheelock v. Hastings, 4 Met. 504. 126 ATTACHMENT OF PEOrEETY. [CH. XVI. the most general manner the estate attached ; and if the re- turn be subsequently made up, and the summons served in proper season, all the estate specified in the return is consid-. ered as having been attached at the time of the original minute upon the writ. Some such memorandum as the above, however, must always be made by the officer at the time he receives the writ. It is a common practice to make and return an attach- ment in general terms of all the real estate of the defendant in the county, and such an attachment and return are valid.^ The officer need not enter upon the land, or be within view of it.2 § 22. Several Attachments. — As the officer does not take or keep possession of the land, it may be attached by other officers, and each attachment will take effect in the order of time in which it is made subject to the rights of any previ- ous attaching creditors. The same land, therefore, may be attached at the same instant of time, upon different writs, by two different officers. And as the title which each cred- itor would obtain under a levy upon the real estate so attached would be good were it not for the other, they become, by the levy of their executions, tenants in common of the land.^ § 23. Every attachment must be recorded, to make it validi and effectual against a subsequent attaching creditor or a subsequent purchaser in good faith and for a valuable con- sideration. The record is made by depositing the original writ or a copy thereof at the place and in the manner required by statute,* and the filing thereof and entry on the book kept for the purpose.^ § 24. When an Attachment takes Effect. — If the writ or copy is deposited as aforesaid within three days after the day when the attachment was made, the attachment will take effect from the time it was made, otherwise from the time when the writ or copy is so deposited.^ 1 Pratt V. Wheeler, 6 Gray, 520. i Pub. St. c. 161, § 62. 2 Pub. St. c. 161, § 61. 6 Pub. St. c. 161, § 64. 8 Sbove V. Dow, 13 Mass. 529 ; Wat- « Pub. St. t. 161, § 65. son V. Todd, 5 Mass. 271. § 28.] ATTACHMENT OF PEOPEETT. 127 If no writ or copy is so deposited, the attachment is valid against all persons except subsequent purchasers and attach- ing creditors,^ and is valid against them if they have actual notice of the fact of the attachment.^ . § 25. An Attachment is a Lien. — An attachment of real estate, if completed, constitutes merely a lien upon the land, and the title is perfected only by a levy under the execution, which may issue upon the judgment recovered in the suit. Such attachment, therefore, is no bar to any alienation of the land attached, subject, however, to the lien created by the attachment. But to make this lien complete, the service of the writ must be completed by the delivery of a summons, which may be done at any time after the attachment, pro- vided it be within the time limited by law for the completion of the service, and in such case it will relate back to the time of the attachment.^ § 26. How long an Attachment will continue. — The statutes provide that " if final judgment in a case is rendered for the plaintiff, the goods and estate attached shall be held for thirty days after the judgment, in order to their being taken on ex- ecution ; and if the attachment is made in the county of Nan- tucket and the judgment is rendered in any other county, or if the judgment is rendered in Nantucket and the attachment is made in any other county, the goods and estate shall be held for sixty days after final judgment, unless, in either case the attachment has been dissolved as hereinafter provided." * § 27. Excessive attachments may be reduced on application to the court to which the process is returnable.^ § 28. How to dissolve an Attachment. — An attachment may be dissolved by the defendant by giving a bond as re- quired by statute. The bond should be filed with the clerk of the court within ten days after its approval,^ but it is held that if it is not so filed the right of action thereon is not affected by the omission to file it.^ • Coffin V. Ray, 1 Met. 212. * Pub. St. u. 161, § 52. ' Houghton I'." Bartholomew, 10 Met. « Pub. St. t. 161, § 121. 138, 143. See Denny v. Lincoln, 13 6 Pub. St. c. 161, § 122. Met. 200, 202. ' Sipith v. Meegan, 122 Mass. 6. » Howe's Pr. 168. 128 ATTACHMKNT OF PEOPEETY. [CH. XVI. In an action of contract on a bond given to dissolve an at- tachment, it is held that the death of the debtor pending the action, and the representation of his estate as insolvent, will not prevent, after summons to the administrator and his fail- ure to appear, from taking a judgment against the goods and estate of the debtor in the hands of the administrator, which will fix the liability of the sureties on the bond.^ In the absence of fraud or collusion a judgment against the defendant is conclusive against the surety in an action on the bond. 2 Where a bond to dissolve an attachment has been given to several obligees, if some of them die, the action on the bond should be brought in the name of the survivors.^ § 29. Another mode of releasing property from attachment is for the debtor to give a bond to the plaintiff, with sufficient sureties, with condition to pay to the plaintiff within thirty days after judgment the value of the property so released. The proceedings in such case are prescribed by statute.* § 30. When the Property stands in the Name of a Person not a Defendant. — When an attachment is made of real property not standing in the name of the defendant, the per- son in whose name the record title of the property stands may release the attachment by giving bond as prescribed by statute.® § 31. When there are Several Defendants. — A defendant whose individual property is attached in an action against several defendants may dissolve such attachment, or any part thereof, in any of the modes before mentioned. But the bond to dissolve such attachment shall be so conditioned as to apply only to a judgment recovered against such defend- ant alone or jointly.® ' Gass V. Smith, 6 Gray, 112. * Pub. St. c. 161, § 126, 127. 2 Cutter V. Evans, 115 Mass. 27; ' Pub. St. c. 161, § 128. Tapley v. Goodsell, 122 Mass. 176, 182. 6 Pub. St. c. 161, § 129. ^ Donnell v. Manson, 109 Mass. 576, 579. § 2.] ABEEST ON MESNE PROCESS AND EXECUTION. 129 CHAPTER XVII. AEEEST ON MESNE PBOCESS AND EXECTJTION. § 1. Who may be arrested. — Every person of the age of twenty-one years, and upward is liable to be arrested on mesne process in a civil action in Massachusetts, unless ex- pressly exempted therefrom by some provision of the Consti- tution or laws of the United States or of the State. Such exemptions are numerous and important. § 2. Who are exempt from Arrest. — By the law of nations, ambassadors and foreign ministers are exempt from arrest. By the Constitution of the United States, senators and representatives in Congress, in all cases except treason, fel- ony, and breach of the peace, during their attendance at the sessions of their respective houses, and in going to and returning from the same, are privileged from arrest.^ The statutes of the United States exempt from arrest men enlisted in the army of the United States during their term of service,^ mariners,^ foreign ministers, and their ser- vants.* The Constitution of Massachusetts provides that "no mem- ber of the House of Representatives shall be arrested or held to bail on mesne process during his going unto, returning from, or his attending the General Assembly." ^ Parties to a suit, witnesses, counsel, and jurors, whose duty brings them to court, are protected from arrest while attend- ing court, and eundo et redeundo. They have no need of a writ of protection. If arrested, they will be discharged by the court on motion. A writ of protection is prima facie 1 Art. i. § 6. * U. S. Eev. St. § 4063. 2 U. S. Rev. St. § 1237. ^ Const, of Mass. pt. ii. c. 1, § 10. 8 U. S. Key. St. § 1610. 130 ARREST ON MESNE PROCESS AND EXECUTION. [CH. XVII. evidence to an officer that the person having it is not liable to arrest, but is not necessary for his protection.^ This protection extends to all legal tribunals of a judicial character, whether strictly courts of record or not.^ To entitle a person to protection, he must avail himself of the common means of conveyance within a reasonable time after he is discharged.* It is held that a witness who attends court without summons is not entitled to exemption from arrest ; * but that an inhabitant of another State, who comes into this State solely for the purpose of attending court as a wit- ness, is privileged from arrest on civil process, although he has not been summoned nor obtained a writ of pro- tection.^ Attorneys and other officers of inferior courts are not privi- leged from arrest on mesne process beyond the time for their necessary attendance on such courts.^ They are liable to arrest, and are relievable on motion.' The motion is an application to the discretion of the court. Executors and administrators cannot be arrested for debts of their testators or intestates.^ A sheriff cannot be arrested on mesne process or execution in a civil action when judgment is rendered against him in his official or private capacity.^ No woman can be arrested except for tort.^" No seaman or mariner, who has shipped or entered into a contract for a voyage from a port in this Common- wealth, is liable to arrest on mesne process on account of a debt or obligation to a landlord or boarding-house keeper.ii No officer or soldier can be arrested on civil process while 1 Ex parte McNeil, 3 Mass. 288 ; « May v. Shumway, 16 Gray, 86. Chaffee v. Jones, 19 Pick. 267 ; Clark «. " Gibbs v. Loomis, 10 Johns. (N. Y.) Grant, 2 Wend. 257 ; Sanford v. Chase, 463. 3 Cow. 449. 7 Secor v. Bell, 18 Johns. (N. Y.) 52. 2 Wood V. Neale, 5 Gray, 538; » Pub. St. i;. 166, §.5. Thompson's Case, 122 Mass. 428, 429 ; » Pub. St. c. 25, § 12. May V. Shumway, 16 Gray, 86. lo Pub. St. c. 162, § 3. ' Chaffee v. Jones, 19 Pick. 267. u Pub. St. c. 69, § 9. * Ex parte McNeil, 6 Mass. 264. § 4.] AKREST ON MESNE PROCESS AND EXECUTION. 131 going to, remaining at, or returning from, a place where he is ordered for election of officers or military duty.^ In a civil action for slander or libel no person can lawfully be arrested.2 § 3. Writ of Protection. — Any person who is privileged from arrest in consequence of attending court, on application can obtain a writ of protection.^ § 4. Arrest on Mesne Process in Actions of Contract. — The statutes provide that "no person shall be arrested on mesne process in an action of contract, unless the plaintiff, or some person in his behalf, makes affidavit, and proves to the satisfaction of some justice of a court of record or police, dis- trict, or municipal court, or of a master in chancery, commis- sioner of insolvency, or, except in the county of Suffolk, a trial justice, or justice of the peace, — " First. That he has a good cause of action, and reason- able expectation of recovering a sum amounting to twenty dollars, exclusive of all costs which have accrued in any for- mer action ; " Second. That he believes, and has reason to believe, that the defendant has property, not exempt from being taken on execution, which he does not intend to apply to the payment of the plaintiff's claim ; and, " Third. That he believes, and has reason to believe, that the defendant intends to leave the State, so that execution, if obtained, cannot be served upon him ; " Or (instead of the second and third), that the defendant is an attorney-at-law, that the debt sought to be recovered is for money collected by the defendant for the plaintiff, and that the defendant unreasonably neglects to pay the same to the plaintiff. "And such affidavit, and the certificate of the magistrate that he is satisfied the same is true, shall be annexed to the writ." * The same conditions apply to an arrest on a supplementary process.^ 1 Pub. St. c. U, § 154. Knie 15 of S. J. CoTirt; 104 Mass. 3 Pub. St. C. 162, § 3. 560. " Brown v. GeteheU, 11 Mass. 11 ; * Pub. St. c. 162, § 1. « Pub. St. c. 161, § 85. 132 AEREST ON MESNE PKOCKSS AND EXECUTION. [CH. XVII. § 5. The allegations in the affidavit must conform strictly to the requirements of the statute.^ If a person causes another to be arrested on mesne process, without first making the required afladavit, he will be liable to an action by the person arrested.'^ § 6. Arrest on Mesne Process in Action of Tort. — No person can be arrested on mesne process in an action of tort unless the plaintiff, or some person in his behalf, makes oath, to the satisfaction of a justice of a court of record, or police, district, or municipal court, or of a master in chancery, commissioner of insolvency, or, except in the county of Suf- folk, a trial justice, or justice of the peace, that he believes, and has reason to believe, that he has a good cause of action against the defendant ; that he has reasonable expectation of recovering a sum equal, at least, to one-third the damages claimed in the writ ; and that he believes, and has reason to believe, that the defendant intends to leave the State, so that if execution be obtained it cannot be served upon him ; and such aiBdavit, with a certificate of the magistrate that he is satisfied the same is true, must be annexed to the writ.^ § 7. The VTrit must contain a Declaration. — When an arrest is to be made upon a writ, it must contain a declara- tion.* An attachment of property and an arrest cannot be made on the same writ.^ The affidavit necessary for the arrest of the debtor, under the statute, is not required to be sworn to before a magis- trate within the county in which the arrest is to be made, or in which the debtor has his residence or place of business.® § 8. Reasonable Time allowed to give Bail, &c. — When arrested on mesne process, the defendant must be allowed a reasonable time to procure bail, and when arrested on such process, or on an execution, he must be allowed reasonable time to procure sureties for his recognizance if he does not give bail, and when arrested on execution in any case, he 1 Stone V. Carter, 13 Gray, 575. « Pub. St. c. 167, § 7; Brigham v. " Cody V. Adams, 7 Gray, 59. Este, 2 Pick. 420. 8 Pub. St. c. 162, § 2. s Almy !>. Wolcott, 13 Mass. 75. 6 Francis v. Howard, 115 Mass. 236. § 10.] ARREST ON MESNE PROCESS AND EXECUTION. 133 must be taken before some judge of a court of record, or of a police, district, or municipal court, or a master in chancery, commissioner of insolvency, or, except in the county of Suf- folk, a trial justice, that he may have an opportunity to take the oath for the relief of poor debtors, or the oath that he does not intend to leave the State, or to recognize for his appearance at some future day for his examination.^ § 9. When the Magistrate is unable to attend. — A Special justice of a police court (except in Boston) is authorized in case of the disability of the justice, or acting at the request of the justice, to take a recognizance from a person arrested on mesne process, or discharge a poor debtor after examina- tion, and admission to take the poor debtor's oath.^ § 10. Recognizance for Future Appearance. — When arrested on mesne process and taken before the magistrate, if the de- fendant or debtor desires to take the oath for the relief of poor debtors, but does not desire a time fixed for his exami- nation, the magistrate may take his recognizance with surety or sureties in a sum not less than double the amount of the execution, or of the ad damnum in the writ if he is arrested on mesne process, that within thirty days from the day of his arrest he will deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof as herein provided, and appear at the time fixed for his examination, and from time to time until the same is concluded, and not depart without leave of the magistrate, making no default at any time fixed for his examination, and abide the final order of the magistrate thereon ; but if he is arrested on mesne process and the writ is returnable within thirty days, the number of days within which he shall de- liver himself up shall be limited by the magistrate so as not to extend beyond the return-day of the writ.^ A person taken on execution, and recognizing, if surren- dered by his surety, may recognize anew for such appearance at the time, place, and upon the conditions expressed in the first recognizance.* 1 Pub. St. c. 162, § 27, 28. 8 Pub. St. c. 162, § 28. ' Dike !i. Story, 7 Allen, 349 ; Clem- * Pub. St. c. 162, § 29. ent V. Sargent, 100 Mass. 300. 134 ARREST ON MESNE PROCESS AND EXECUTION. [CH. XVII. - The party has the whole of the thirty days from the day of his arrest to deliver himself up for examination, and may at the same time give notice of the time and place thereof.' It is the duty of the debtor to see that a magistrate author- ized to act is present at the time and place appointed for the examination, and failing to do this will be a breach of the condition of his recognizance.^ So also where an examina- tion was actually begun, and the magistrate failed to appear at the time and place of an adjournment.^ So also when a magistrate was present but declined to act, having ceased to be a magistrate by reason of a change of domicil, although this happened through no fault of the debtor.* A recognizance taken by a justice of a police court the condition of which required the debtor to surrender himself for examination in court instead of before the justice, is held to be void.^ § 11. A surety in a recognizance is held to be liable, if his principal gives no notice to the judgment creditor of his in- tention to submit himself to examination, although the judg- ment creditor and the principal agree on the twenty-seventh day after the arrest that the hearing may be postponed one week.^ As to the rights of sureties see next chapter, on Bail in Civil Actions. § 12. The notice for the examination must be issued by one of the magistrates who are authorized by statute to take the examination and administer the oath ; ? but the oath need not be taken by the same magistrate who took the recognizance.* The notice to four of five joint plaintiffs was held to be sufficient.^ 1 City National Bank of Manchester 5 Underwood v. Clements, 16 Gray, V. Williams, 122 Mass. 534. 169. 2 Thatcher v. Williams, 14 Gray, ^ Barber v. Floyd, 109 Mass. 61. 324, 328. 7 Pan! „. Holden, 14 Allen, 29. 8 Morrill u. Norton, 116 Mass. 487; 8 Elliott v. Willis, 1 Allen, 461. Hooper v. Cox, 117 Mass. 1, 3. » Dana v. Carr, 124 Mass. 397. * Godfrey v. Munyan, 120 Mass. 240, 243. § 14.] ARREST ON MESNE PROCESS AND EXECUTION. 135 When the notice named as the day the third day of Septem- ber, without mentioning the year or adding " next," it was held to be good.^ Seven o'clock p. M. in January is held not to be an unreasonable hour.^ The service may be waived. ^ § 13. The recognizance must be taken in a sum not less than double the amount of the execution or of the ad damn num in the writ,* but may be taken in that or a greater sum.^ If the creditor assents to it, it may be for a less sum, the debtor cannot object to its sufficiency or legality on that account, the proceeding being for his relief.® The penal sum of the recognizance should be stated accurately in words or figures. A recognizance taken not in any penal sum but only " in the sum double the amount of the execution," is held to be void.'^ § 14. HoTw Sureties on a Recognizance may be discharged. — A person arrested on mesne process who has recognized or given bail may, without a surrender by his surety or sureties, take the oath that he does not intend to leave the State, or the oath for the relief of poor debtors ; and the taking of either of said oaths by such person shall be a discharge of his surety or sureties.^ At any time when a defendant or debtor desires to take either of said oaths, and to have a time fixed therefor, the magistrate may appoint a time and place for his examination, and issue a notice thereof to the plaintiff or creditor, signed by him and designating his official capacity, substantially in the following form : — " To A B : C D , arrested on mesne pro- cess (or execution) in your favor, desires to take the oath for the relief of poor debtors, (or, the oath that he does not in- tend to leave the State,) at (naming the day and hour and place). E F , Magistrate." 1 Salmon v. Nation, 109 Mass. 216. ' Currier v. Poor, 5 Allen, 585 ; Bar- 2 May V. Foote, 7 Allen, 354. ber ». Floyd, 109 Mass. 61. 8 Lord V. Skinner, 9 Allen, 376. 8 Gilmore v. Edmunds, 7 Allen, 360. * Pub. St c. 162, § 28. ' Adam3 ». Brown, 14 Gray, 579. 8 Pub. St. c. 162, § 30. 136 AEEEST ON MESNE PROCESS AND EXECUTION. [CH. XVII. Notice may be given that the defendant arrested on mesne process as aforesaid desires to take both of said oaths, and the form of notice may be varied accordingly.^ § 15. The notice must be served by an officer qualified to serve civil process. The manner of the service is prescribed in the Public Statutes, c. 162, § 32. § 16. The Magistrate must be present. — The magistrate who issued the notice, or some other magistrate authorized to act in such case, must attend at the time and place therein speci- fied, and examine the defendant or debtor.^ § 17. Arrest on Execution. — An execution in the usual form, issued on a judgment for damages or costs, or both, runs against the goods, chattels, and lands of the judgment debtor, and also against his body. Restrictions upon service of executions, by arrest of the judgment debtor, are, however, laid by statute ; but such restrictions are not applicable to all executions. Such restrictions are not laid on an execution issued upon a scire facias, or other suit, upon a recognizance against bail or sureties in criminal cases, when the debtor neglects upon demand to deliver to the officer having such precept property not exempt from levy, sufficient to satisfy such execution or executions in favor of the state,^ or an execution to enforce a decree for alimony,* or an execution for possession of land and for costs, issued in anf action to foreclose a mortgage, or for costs only." With the exceptions here stated, and possibly some others not here mentioned, it is a general rule that no person can be arrested on execution in a civil action unless the judgment creditor, or some person in his behalf, make an affidavit, as hereafter stated, and as provided by statute.^ It may be here stated that special provision is made by statute as to the manner of enforcing an execution against a woman, which is more particularly noticed on a subsequent page.7 » Pnb. St. c. 162, § 31. 6 Hildreth v. Brigham, 12 Allen, 71. 2 Pub. St. c. 162, § 34. 6 Pub. St. u. 162, § 17, 25. 8 Pub. St. c. 162, § 5. 7 Pub. St. c. 162, § 6-15. See Chase v. Ingalls, 97 Mass. 524. p. 148. § 18.] ARREST ON MESNE PROCESS AND EXECUTION. 137 § 18. AfBdavit to arrest on Execution. — Except as stated on the preceding page, and as provided in the statutes there referred to, and except in actions of tort, no person shall be arrested on an execution in a civil action unless the Judgment creditor, or some person in his behalf, after exe- cution is issued amounting to twenty dollars, exclusive of all costs, which make part of said judgment, whether the same have accrued in the last action or in any former action on the same original cause of action, and while so much as that amount remains uncollected, makes afS&davit, and proves to the satisfaction of some magistrate named in section one, that he believes, and has good reason to believe, — " First. That the debtor has property not exempt from being taken on execution, which he does not intend to apply to the payment of the plaintiff's claim ; or, " Second. That since the debt was contracted, or the cause of action accrued, the debtor has fraudulently conveyed, con- cealed, or otherwise disposed of, some part of his estate, with a design to secure the same to his own use or defraud his creditors ; or, " Third. That since the debt was contracted, or the cause of action accrued, the debtor has hazarded and paid money or other property to the value of one hundred dollars or more in some kind of gaming prohibited by the laws of this Com- monwealth; or, " Fourth. That since the debt was contracted the debtor has wilfully expended and misused his goods or estate, or some part thereof, for the purpose of enabling himself to swear that he has not any estate to the amount of twenty dollars, except such as is exempt from being taken on execu- tion ; or, " Fifth. If the action was founded on contract, that the debtor contracted the debt with an intention not to pay the same ; or, " Sixth. That the debtor is an attorney-at-law ; that the debt upon which the judgment on which the execution issued w^as recovered was for money collected by the debtor for the 138 AEKEST ON MESNE PEOCESS AND EXECUTION. [CH. XVII. creditor, and that said attorney unreasonably neglects to pay the same." ^ If, in addition to the first charge specified above, the judg- ment creditor, or some one in his behalf, makes affidavit and proves, to the satisfaction of the magistrate, that there is good reason to believe that the debtor intends to leave the State, the magistrate may, without notice to the debtor, authorize his arrest.^ § 19. What certificate is required of the magistrate to authorize the officer to make an arrest on mesne process or execution. To authorize an arrest on mesne process, the statute pro- vides that one of the three conditions named shall be proved by affidavit to the satisfaction of the magistrate, " and that such affidavit, and the certificate of the magistrate that he is satisfied that the same is true, shall be annexed to the writ." 3 To authorize an arrest on execution, the statutes provide that one of six conditions shall be proved to the satisfaction of the magistrate by affidavit, and that " such affidavit, and the certificate of the magistrate that he is satisfied there is reasonable cause to believe the charges therein contained, or some one of them, are true, shaU be annexed to the execu- tion." 4 The statutes further provide that " no arrest shall be made after sunset, unless specially authorized by the magistrate making the certificate, upon satisfactory cause shown." ^ In another section of the statutes, the words " authorize his arrest" are used.^ In the cases provided for in the two sections of the stat- utes last quoted from, it is apparently the intent of the statutes that the magistrate, in case the affidavit is satis- factory, should expressly authorize an arrest. If he intend to authorize an arrest before sunset, the certificate should be, " I hereby authorize his arrest before sunset." If he intend 1 Pub. St. c. 162, § 17. * Fab. St. c. 162, § 17. 2 Pub. St. c. 162, § 25. 6 Pub. St. c. 162, § 26. 8 Pub. St. c. 162, § I. 6 Pub. St. c. 162, § 25. § 20.] ARREST ON MESNE PROCESS AND , EXECUTION. 139 to authorize an arrest after sunset, the certificate should so conclude. It seems to be a reasonable construction of the statute ; and in all the cases here referred to the certificate of the magistrate should conclude by expressly authorizing an arrest, and such has been the general practice. The affi- davit is not required to be sworn to before a magistrate within the county in which the arrest is made, or in which the debtor has a place of business.^ § 20. No Arrest after Sunset unless. — As before stated, the statutes provide that " no arrest shall be made after sunset unless specially authorized by the magistrate making the certificate, upon ' satisfactory cause shown.' " ^ They do not define what should be regarded as " satisfac- tory cause." Nor has it been the subject of judicial con- struction. It is a matter within the sound discretion of the magistrate to whom the petition for authority to make the arrest is presented. It is obviously the intent of the statute that arrests shall not be made after sunset, except in cases where it is reason- ably probable that an arrest cannot be made before sunset. Magistrates should be careful not to authorize an arrest except upon reasonable cause. Whatever the cause may be, it should be stated in the affidavit made by or in behalf of the judgment creditor, and the certificate of the magistrate authorizing an arrest should state that it was made upon " satisfactory cause shown." A form of certificate, found in the case of Manuel v. Bates and another,^ is used in some parts of the State, but is open to objection. That certificate authorized an arrest after sun- set, but no arrest was made after sunset. The debtor was arrested before sunset, and the court held that the certificate was sufficient to authorize an arrest before sunset ; that the certificate need not in terms authorize an arrest in daytime. The oath in behalf of the plaintiff in that case does not show any sufficient cause for an arrest after sunset. The certifi- cate, therefore, should only have authorized an arrest before 1 Francis v. Howard, 115 Mass, 236. = 104 Mass. 354. 2 Pub. St. .;. 162, § 26. 140 AEEEST ON MESNE PROCESS AND EXECUTION. [CH. XVII. sunset. The words in that certificate, " if his arrest is author- ized by law," should have been omitted. The authority to make the arrest was derived wholly from the certificate of the magistrate. Without the certificate, no arrest could legally be made. The words, " if his arrest is authorized by law," left to the arresting officer the responsibility of deciding whether the arrest was lawful or not. On the return-day of the notice to the judgment debtor, the creditor, or some person in his behalf, must make in writing the affidavit required by the public statutes, alleging the reasons for making the arrest. The magistrate who issues the notice should be present at the time and place when and where such notice is returnable. If the debtor appears and is examined and heard, and the magistrate decides to au- thorize his arrest before sunset, he should make a -certificate accordingly. The application to the magistrate for a certificate is made orally by the plaintiff or some person in his behalf. § 21. Forms of Affidavit and Certificates. — The following is a proper form of affidavit and certificate under the first clause of section seventeen of chapter one hundred and sixty-two of the Public Statutes: — " Commonwealth ov Massachusetts. " WOECESTER, BS. A. D. 188 . " I, the judgment creditor named in the annexed exe- cution, do on oath declare, that the judgment on which the said execution has been issued amounted to twenty dollars, exclusive of all costs, which make part of said judgment, whether the same have accrued in the last action, or any former action, on the same original cause of action, and that twenty dollars of that amount remains uncollected ; and that I believe, and have good reason to believe, that the debtor has property not exempt from being taken on execu- tion, which he does not intend to apply to the payment of the judgment creditor's claim." § 22.] aeeest on mesne process and execution. 141 "Commonwealth of Massachusetts. " WOECBSTEK, ss. A. D. 188 . " Personally appeared the above-named before me, and made oath that the above affidavit by him subscribed is true ; and I certify that, after due hearing, I am satisfied there is reasonable cause to believe that the charge made in the said affidavit is true. I hereby authorize the arrest of the the said debtor before sunset." If the judgment debtor do not appear before the magis- trate, the magistrate may hear the judgment creditor ex parte, and if he decides to authorize an arrest, his certificate should state the fact of the notice and default. The following is a proper form of certificate in such a case : — " Commonwealth op Massachxjsbtts. " ss. A. D. 188 . " Personally appeared the above-named before me, and made oath that the above affidavit by him subscribed is true ; and I certify that the judgment debtor named in the annexed execution, having been duly notified, by a notice in writing, to appear before me for examination, according to the provisions of chapter one hundred and sixty-two, at a time and place named in said notice, did not appear, but made default ; and after due hearing of the judgment cred- itor named in said execution, I am satisfied that there is reasonable cause to believe that the charge made in said affidavit is true. I hereby authorize the arrest of the said judgment debtor before sunset. [Signature.] " The affidavit and certificate must be annexed to the exe- cution.^ § 22. Notice on Application to arrest on Execution. — A magistrate to whom application is made for a certificate authorizing an arrest on execution upon the charge that the 1 Pub. St. c. 162, § 17 142 AKEEST ON MESNE PROCESS AND EXECUTION. [CH. XVIL debtor has property not exempt from being taken on execu- tion, which he does not intend to apply to the payment of the plaintiff's claim, must, unless it appears that the judg- ment debtor intends to leave the State, before granting the same, issue notice to the debtor to appear at a time and place therein fixed, and submit to an examination touching his estate.^ The notice must be served by an officer authorized to serve said execution, by delivering an attested copy of the notice to the debtor, or leaving the same at his last and usual place of abode, allowing not less than three days before the time fixed for the examination, and at the rate of one day additional for every twenty-four miles' travel. It must be signed by the magistrate designating his official capacity, and must be substantially in the following form, viz. : — "To A. B.: "C. D., the judgment creditor named in a certain execu- tion against you, dated , issued from [here designate the court], having applied for a certificate authorizing your arrest, you are hereby notified to appear before me [here designate the name or names of some magistrate or magis- trates named in section twenty-seven of chapter one hundred and sixty-two of the Public Statutes], at my office, at on the day of at o'clock in the noon, for examination, in accordance with the provisions of chapter one hundred and sixty-two of the Public Statutes. "E. F., Magistrate"^ § 23. When a magistrate fails to attend at the time and place to which any process under this chapter is returnable or continued before him, any justice of a court of record or police, district, or municipal court, or master in chancery, com- missioner of insolvency, or, except in the county of Suffolk, a trial justice or justice of the peace, may attend at such time and place, and may continue the proceeding for not more 1 Pub. St. c. 162, § 18. 2 Pub. St. c. 162, § 19. §27.] AREEST ON. MESNE" PROCESS AND EXECUTION. 143 than thirty days, without costs, saving the rights of all parties ; and he must make a certificate thereof, which must be by him delivered to the magistrate before whom such pro- cess is pending.! § 24. Appearance and Adjournment. — On the day first ap- pointed for the examination, one hour from the time of ap- pearance named in the notice is allowed to the magistrate and both parties to appear ; and when the hearing of a case is adjourned fiom one day to another, the same allowance is made. Both parties are legally entitled to one hour's delay .^ The examination, or the time fixed therefor, may be post- poned or continued from time to time at the discretion of the magistrate.^ § 25. The Examination. — The statutes provide that " if the judgment debtor appears before the magistrate at the time and place fixed, he shall be examined on oath touching his estate and effects and the disposal thereof. Such exami- nation may be in the presence of the magistrate or other- wise as he shall direct, and when completed, if in writing, shall be signed and sworn to by the debtor and preserved by the magistrate. The magistrate shall also hear any legal and pertinent evidence which either party may offer. The ex- amination and hearing shall be oral unless the parties, or one of them, requests that the same may be wholly or in part in writing." * § 26. When Arrest may be authorized. — If the time for the return of the execution expires while the examination is pending, or if the debtor fails to appear at the examination, or if appearing he fails to obey all lawful orders and require- ments of the magistrate, the arrest may be authorized, either upon the original execution, or upon an alias or other succes- sive execution, in like manner as upon the original execution.^ § 27. The Examination. — The magistrate must examine the debtor concerning his estate and effects, the disposal there- of, and his ability to pay the debt or satisfy the cause of 1 Put. St. c. 162, § 67. 4 Pub. St. K. 162, § 20. 2 Hills V. Jones, 122 Mass. 412. s Jb. » Pub. St. c. 162, § 18. 144 AEEEST ON MESNE PROCESS AND EXECUTION. [CH. XVII. action for which he is arrested ; and must hear any legal and pertinent evidence that may be introduced by either party. The plaintiff or creditor may upon such examination propose to the defendant or debtor any interrogatories pertinent to the inquiry, and the examination must, if required by either , party, be in writing, in which case it must be signed and sworn to by the defendant or debtor, and preserved by the magistrate.-' § 28. The magistrate may adjourn the case from time to time, and has the same powers with respect to all other incidents thereto as trial justices or other courts have in civil actions ; and witnesses duly summoned must attend as required in civil cases.^ Pending the examination, and at any time after the defendant or debtor is carried before a magistrate, the magistrate may accept his recognizance with surety or sure- ties in a sum not less than double the amount of the execu- tion, or of the ad damnum in the writ, if he is arrested on mesne process, that he will appear at the time fixed for his examination, and from time to time until the same is con- cluded, and not depart without leave of the magistrate, mak- ing no default at any time fixed for his examination, and abide the final order of the magistrate thereon.^ § 29. The Oath of the Debtor. — The magistrate, if satisfied upon the examination of the truth of the facts set forth in the oath to be taken by the defendant or debtor, and in the certificate provided for in the following section, and if it ap- pears to him that the defendant or debtor is entitled to his discharge under the provisions of the statutes, must adminis- ter to him the oath for the relief of poor debtors, which is as follows : — " I [here repeat the name] do solemnly swear that I have not any estate, real or personal, to the amount of twenty dol- lars, except the estate, goods, and chattels which are by law exempt from being taken on execution, but not excepting in- toxicating liquors ; and that I have not any other estate now I Pub. St. c. 162, § 38. « Pub. St. c. 162, § 36. " Pub. St. c. 162, § 35. § 31.] ARREST ON MESNE PROCESS AND EXECUTION. 145 conveyed, concealed, or in any way disposed of, with the design to secure the same to my own use or to defraud my creditors. So help me God." After administering the oath, the magistrate must make a certificate thereof under his hand as follows : to wit, — ss. I hereby certify that A B , a poor prisoner arrested upon execution [or on mesne process], has caused E F , the creditor [or plaintiff] at whose suit he is arrested, to be notified according to law of his desire to take the benefit of the law for the relief of poor debtors ; that in my opinion said A B has not any estate, real or personal, to the amount of twenty dollars, except the es- tate, goods, and chattels which are by law exempt from being taken on execution, but not excepting intoxicating liquors ; and has not any other estate now conveyed, concealed, or in any way disposed of, with design to secure the same to his own use or defraud his creditors. And I have, after due ex- amination of said A B , administered to him the oath for the relief of poor debtors. Witness my hand, this day of , in the year . X Y , Magistrate." i Upon taking the oath, the defendant or debtor will be dis- charged from arrest or imprisonment, and will be forever exempt from arrest on the same execution, or on any process founded on the judgment, or on the same cause of action, unless convicted of having wilfully sworn falsely on his examination.^ § 30. Charges of Fraud. — When, in any of the proceedings treated of in this chapter, charges of fraud are made against a defendant or debtor, he may plead guilty or not guilty, and the magistrate must hear and determine the same as provided by statute.^ § 31. Either party may appeal from the decision of the magistrate to the Superior Court, in which court the ques- 1 Pub. St. c, 162, § 40. s Pub St. c. 162, § 49. Mb. 10 146 ARREST ON MESNE PROCESS AND EXECUTION. [CH. XVII. tion will be tried by a jury, unless submitted to the court by agreement of parties.^ The appellant must recognize with sureties to enter and prosecute his appeal.^ § 32. Sentence. — If the defendant or debtor is found guilty he may be sentenced by the magistrate to confinement at hard labor in the House of Correction for a term not ex- ceeding one year, or to confinement in jail not exceeding six months.^ § 33. The charges will be sufficient if stated with such ful- ness, clearness, and precision as to inform the debtor of the nature and particulars of the transaction intended to be proved against him, without being in form appropriate to an indictment or criminal complaint. They may be amended by leave of the magistrate. § 34. The oath to the charges is sufficient if the creditor swears that " he believes, and has good reason to believe," that the charges are true.* The charges are in the nature of a civil proceeding, and need not be proved beyond a reasonable doubt.* § 35. Charges only carried up by Appeal. — An appeal from the decision of the magistrate on charges of fraud does not carry up the whole case, but only the charges of fraud.® § 36. When Debtor must assign Property. — If it appears that the debtor has estate or property of any kind above the amount of twenty dollars, not exempt from being taken on execution, he will be required, if possible, to produce the excess and allow it to be taken on the execution, or other- wise applied to the payment of the judgment debt and of the costs of the proceedings. If said estate or property cannot be taken on the execution, the debtor will be required to execute and deliver to the judgment creditor, or to some person in his behalf, a transfer, assignment, or conveyance of the same, in such form as the magistrate may direct.' 1 Pub. St. c. 162, § 50 ; Stockwell v. » Anderson v. Edwards, 123 Mass. Silloway, 100 Mass. 287, 296. 273, 276. 2 Pub. St. c. 162, § 51. 8 Fletcher v. Bartlett, 10 Gray, 491. " Pub. St. c. 162, § 52. ' Pub. St. t. 162, § 21. * Stockwell V. Silloway, 100 Mass. 287. § 39.] AKEEST ON MESNE PROCESS AND EXECUTION. 147 § 37. The debtor may redeem the real estate SO transferred in the time and manner provided by statute,^ and the creditor may refuse to accept such transfer, and his acceptance thereof will not destroy or impair his right to have his execution satisfied in whole or in part by a levy on other property .^ § 38. Effect of Appeal. — When the debtor is found guilty of some of the charges, and not guilty of others, an appeal vacates the whole judgment, and opens the case for trial upon all the charges.^ If the magistrates find the charges unsup- ported, and the creditor appeals, it is their duty to administer the oath to the debtor, notwithstanding the appeal.* § 39. When Defendant may be committed to Jail. — If the defendant, when arrested on mesne process and carried before the magistrate, does not desire to take an oath, or fails to recognize to the satisfaction of the magistrate as before pro- vided, and does not give bail, or if, on his examination, he does not swear, to the satisfaction of the magistrate, that he does not intend to leave the State, and the oath for the relief of poor debtors is refused him, and he does not give bail, the magistrate must make a certificate thereof, and the defendant must be conveyed to jail, and there kept until final judgment in the suit in which he was arrested.^ The defendant has no right of appeal from such decision of the magistrate.^ If the debtor is arrested on execution, and the oath or oaths are refused him, he may be conveyed to jail, and there kept as provided by statute.' The commitment of a judgment debtor on execution, and his discharge, are, at common law, a satisfaction of the judg- ment. It is not so when the debtor is discharged by giving a recognizance under the statutes ; but by the provision of the statute, upon taking the oath for the relief of poor debt- ors, he is forever discharged from arrest for the same debt, unless convicted of having sworn falsely on his examina- 1 Pub. St. c. 162, § 22. 4 Collamore v. Fernald, 3 Gray, 318. 2 Pub. St. c. 162, § 23. 6 Pub. St. c. 162, § 43. 8 Morse v. Dayton, 125 Mass. 47 ; ' Russell v. Goodrich, 8 Allen, 150. Qater v. Donegan, 128 Mass. 28. '' Pub. St. c. 162, § 44. 148 ARREST ON MESNE PROCESS AND EXECUTION. [CH. XVII. tion.i The debt and cost, however, remain a legal claim against his goods and estate. This rule applies also to an execution issued upon a decree for alimony.''^ § 40. Discharge on Mesne Process. — When a person is arrested, or has given bail, or is imprisoned on mesne process, or is arrested or imprisoned on any execution, he may be dis- charged in the same manner, and subject to the same provi- sions of law, as a person arrested on an execution mentioned in section seventeen of chapter one hundred and sixty-two of the Public Statutes.* § 41. Proceedings on Ezecution against a Woman. — On an execution issued against a woman upon a judgment for the sum of twenty dollars and upwards, exclusive of all costs, which make a part of said judgment, and while so much as that amount remains uncollected, the judgment creditor may cause payment of the same to be demanded of her ; and if she fails to pay the same, the judgment creditor may apply to the court of insolvency for a citation to be issued requiring her to submit to an examination touching her estate, which citation must be served upon her. If she fails to appear at said court, she may be brought in on a capias, and examined by said creditor upon written interrogatories, and either party may introduce evidence in relation to the subject of such examination.* § 42, Examination of a Woman. — If it appears upon said examination and proof that the judgment debtor has property of any kind of the value of twenty dollars not exempt from attachment, or from being taken on execution, or which cannot be got at to be taken on execution, judgment to that effect may be entered by the court, and she may be required to produce the same, or so much thereof as may be needed to satisfy such execution, with the costs of the pro- ceedings upon such citation ; or if the said property is not within the county in which the proceedings are had, or not capable of being taken on execution, she may be required to 1 Tracy i>. PreMe, 117 Mass. 4,5; ^ Chase «. Chase, 105 Mass. 385, 388. Nowell V. Waitt, 121 Mass. 554; Pub. ' Pub. gt. c. 162, § 41. St. c. 162, § 40. 4 Pub. St. c. 162, § 6-9. § 44.] AEEEST ON MESNE PEOCESS AND EXECUTION. 149 execute and deliver to the judgment creditor, or to some person on his behalf, a transfer, assignment, or conveyance of the same, or of so much thereof as may be sufficient to satisfy said execution and said costs, or to secure the pay- ment of the same ; and if, upon being ordered so to do, she neglects or refuses to obey such order, she may be committed by said court as for a contempt, and stand committed until she obeys such order, or is otherwise discharged according to law.^ § 43. Subsequent proceedings may be had to enforce a transfer of property fraudulently conveyed, as provided in the statutes.^ At any time after the expiration of three years from the termination of any such proceedings, and while the judgment remains in force, the judgment creditor may cause a new demand to be made ; and if the execution in such case is not thereupon satisfied, he may cause the like proceedings to be had as if no previous demand and proceedings had been made or had.^ § 44. "When an Arrest may be made. — On criminal process, a party may be arrested at any time before the return-day, and that too by night as well as by day.* Upon civil process generally, an arrest may be made on any day except Sunday. An arrest on that day is void;^ and not only so, but if a party be detained from Sunday until Monday, and then arrested, either at the suit of the party detaining him, or of any other who was connected with or conusant of the detention, the service in either case is void. The court in such a case will discharge from arrest upon motion ; ^ set aside all subsequent proceedings ; "^ and the party arrested may also maintain an action for false im- prisonment against the officer, as if the arrest had been made without any such civil process.^ But if after such detention from Sunday until Monday the defendant were arrested at 1 Pub. St. c. 162, § 10. Abr. Sheriff, N. 4; Lyford v. Tyrrel, ' Pub. St. u. 162, § 12, 13. 1 Anstr. 85; Atkinson v. Jameson, ° Pub. St. c. 162, § 15. 5 T. R. 25 ; Hall v. Roche, 8 T. R. ' 9 Co. 66. 187. ' Pub. St. c. 98, § 6. ' Robb v. Moffat, 3 Johns. 257. 6 Ex parte "Wilson, 1 Atk. 152; Bac. 8 Genner v. Sparks, 1 Salk. 79. 150 ARREST ON MESNE PROCESS AND EXECUTION. [CH. XVn. the suit of a person wholly ignorant of and disconnected with the previous detention, the arrest would be valid.^ A defendant, however, who has escaped may be retaken on Sunday.^ And bail may take their principal on Sunday, and keep him till Monday, and then surrender him.^ An arrest cannot be made upon a writ after its return-day. If it be, the court will discharge upon motion.* But it may be made on the return-day.^ And it has been decided that an execution returnable to a court holden on a certain day may be executed at any time on that day, before the court adjourns ; and that if the officer have begun to execute it before the return-day, it is sufficient, and he may complete it afterwards.® § 45. When an Officer may break a Door, &o. — It is a gen- eral rule that upon civil process an officer cannot break the outer door or a window of a dwelling-house, every individual being by law protected from arrest in his own house, if he choose to shelter himself therein. In execution of an habere facias, however, an officer may break an outer door, as an entry is necessary to the delivery of possession. So, also, he may justify the breaking of doors to arrest or seize the goods of any person' therein other than the owner, the owner's children, domestics, permanent boarders, or inmates, who have made the house their home ; because it is to these alone, and to goods lawfully in the house, without fraud or covin, that the privilege of the house as a castle is confined.' But an officer cannot justify the breaking of a door of a house in such a case, upon the suspicion that the person or goods of one not entitled to its protection are concealed there. He must act at his peril, and be justified or condemned by the event.^ 1 Barclay v. Faber, 2 B. & Aid. 743 ; » Prescott v. Wright, 6 Mass. 20. 1 Arch. Pr. 80. 7 Lee v. Gansel, 1 Cowp. 1 ; Semagne 2 Anonymous, 6 Mod. 231 ; Atkin- v. Gresham, Yelv. 29 a, and n. 1 ; 5 Co. Bon V. Jameson, 5 T. R. 25. 81 ; Oystead v. Shed, 13 Mass. 520 ; ° lb. Swain v. Mizner, 8 Gray, 182. * Loveridge v. Plaistow, 2 H. Bl. 29. 8 Ratcliffe v. Burton, 3 B. & P. 223, 5 Adams v. Freeman, 9 Johns. 117. and cases cited in argument. § 46.] AEEEST ON MESNE PROCESS AND EXECUTION. 151 If au arrest, however, have once been legally made, and the person escape to his house, the officer may break the house to retake him.^ And in criminal process, the officer may always break the outer door or window after demand and refusal of entrance.^ When lawfully in the house, the officer may break the inner doors, trunks, closets, &c., to execute civil process ; and no previous demand of admittance, in such a case, is necessary.^ With the foregoing exception, an individual may be arrested anywhere. And the exception is confined exclusively to the dwelling-house, and does not extend to the defendant's store, barn, out-house, or any public building.* If an officer break open an outer door to execute civil pro- cess, except in the before-named cases, he is a trespasser, and the owner may defend himself as against any trespasser. It is said that though by such an illegal act the officer become himself a trespasser, yet that the service by him, after such breach and entry, is legal and valid.^ But this is questionable ; at least, it has not been settled by any direct authority, and the authorities appear to be against it.^ And it has been decided that where thei'e has been an irregular arrest, and advantage been taken of it to charge the person in custody at the suit of another, the court wiU discharge from both arrests.' § 46. Duty of an Officer in making an Arrest. — The officer, having received a legal precept, and having received also special directions from the plaintiff or his attorney, either in writing or by parol, to serve the same as a capias, and the affidavit of the plaintiff, or some person in his behalf, and the certificate of a magistrate that the same is true, being made as required by law and annexed to the writ, is bound to arrest the defendant, if to be found within his precinct. For 1 Foster's Crown Law, 320 ; White 5 5 Co. 9.3 ; "Widgery v. Haskell, 5 V. Wiltshire, Palm. 53 ; s. c. 2 Rol. 138. Mass. 155, 2 5 Co. 93. ^ Metcalf s edition of Yelv. 29 o, n. 1 ; 8 Hutchinson v. Birch, 4 Taunt. 620 ; Howe's Pr. 150. Williams v. Spencer, 5 Johns. 352. ' Yelv. 29 a, n. 1 ; Ex parte Wilson, 1 Keb. 698; 1 Sid. 186. 1 Atk. 152. 152 ARREST ON MESNE PROCESS AND EXECUTION. [CH. XVII. a return that the defendant cannot be arrested, or that the precept cannot be served, for resistance, can never be justi- fied, inasmuch as the officer, in the execution of such process, may command the posse comitatus?- For the same reason, an officer, when he has once ar- rested, must, at his peril, retain the defendant. It is pre- sumed, however, that, in both cases, were the officer overcome by actual force, he would be liable to nominal damages only. If the defendant be known, or can be easily ascertained, the officer must arrest him upon the mere direction of the plaintiff. If otherwise, and there be a question as to the identity of the defendant, the plaintiff is bound, as in the attachment of property, upon demand, to point him out, and to indemnify the officer against the consequences of a mistake .2 Should there be several persons of precisely the same name and occupation in his precinct, and the officer be unable, by any means, to ascertain which is the defendant named in the writ, the safest return for him to make would be, that he did not know upon whom to serve it, for a return of non est would be false.^ An officer, generally known as such, is not bound to show his writ before he serves it ; but after service, or when the defendant has submitted to the arrest, if the defendant de- mand it, and not otherwise, he is bound to make known the cause of the arrest.'' A special deputy, however, and perhaps a newly appointed officer also, ought to show the writ before executing it.® The refusal of the officer to show his writ, when bound so to do, will not make him a trespasser ah initio. But the ser- vice, in such a case, may be set aside for irregularity.^ The affidavit and certificate required by the statutes to 1 2 Inst. 193, 453 ; Bac. Abr. Sheriff, Bac. Abr. Sheriff, N. 1 ; 9 Co. 66 ; Com- N. 2 ; Howe's Pr. 151 . monwealth v. Field, 13 Mass. 321 ; Coun- 2 Marsh v. Gold, 2 Pick. 285. tess of Rutland's Case, 6 Co. 53. 3 Dalt. Sheriff, 112, 113. 6 Bac. Abr. Sheriff, N. 1. * Blatch V. Archer, 1 Cowp. B.S; » Thomas w. Pearce, 2 B. & C. 761. Crowther v. Ramsbottom, 7 T. R. 654 ; § 47.] AEEEST ON MESNE PEOOESS AND EXECUTION. 153 authorize an arrest on mesne process must conform in all respects to the requirements of the statutes.^ If the date and return-day of a writ in an action of con- tract are altered after making the affidavit for arrest, but before service of the writ, the defendant cannot be arrested on that writ and affidavit.^ The attorney of the plaintiff is disqualified to act as a magistrate, to authorize the arrest of the defendant on mesne process or execution.^ § 47. How an Arrest may be made. — An arrest is made by taking the person into actual custody. This is usually done by putting the hand upon the individual,* though this is not necessary, if the officer have the party in his power, or if the party have submitted himself to the officer ; ^ so that after such a submission, without an actual touch, an escape or a rescue would be the same in their consequences as if the officer had put his hand upon the party. And any touch, however slight, will be sufficient to constitute a valid arrest, even though it be through a door or window. If the officer making the arrest have several processes against the party arrested, the latter is considered as arrested on them all ; and if while the partj^ is in custody other writs against him be delivered to the officer, the party will be con- sidered as arrested on them, though nothing further be done. It is not necessary, to constitute a valid arrest, that it should be made personally by the officer who has the precept. Having a right to employ assistants in the execution of any process, and that too by parol, an arrest made by one of such assistants, provided the officer be near, and acting in the arrest, though not in sight, is equally valid as if made by the officer himself.^ The officer may make use of such force as 1 "Wood V. Melius, 8 Allen, 434 ; Genner v. Sparks, 1 Salk. 79 ; 1 Went. Stone V. Carter, 13 Gray, 575; Abbott 306. V. Tucker, 4 Allen, 72 ; Bramhall k. « Homer v. Battyn, Bull. N. P. 62 ; Seavy, 28 Me. 45. Mowry v. Chase, 100 Mass. 79. 2 Amadon i>. Mann, 3 Gray, 467. e Blatch v. Archer, 1 Cowp. 63; 8 McGregor v. Crane, 98 Mass. 530. Commonwealth v. Keld, 13 Mass. 321 ; * Huntington o. Blaisdell, 2 N. H. Howe's Pr. 147. 318 ; Whithead v. Keyes, 3 Allen, 495 ; 154 AEBEST ON MESNE PROCESS AND EXECUTION. [CH. XVII. is necessary to accomplish the object.^ He may break open an inner door in order to arrest a party .^ An officer effects an arrest by laying his hand upon a per- son whom he has authority to arrest, for the purpose of arrest- ing him, although he may not succeed in stopping or holding him.^ It is not necessary for the officer to touch the person of the defendant, but it is enough if the defendant is within the power of the officer and submits to the arrest.* § 48. Consequences of Mistakes in an Arrest. — If the de- fendant be rightly named in the writ, but the sheriff execute his process upon the wrong person, though of the same name with the right one, he will be a trespasser ; and it would be the same though the person arrested declared that he was the individual named in the writ.^ If the writ describe the defendant by a wrong name, unless he be known as well by that given him as by his true one, the officer cannot arrest him. If he do, the defendant may not only plead in abatement, but may also maintain an ac- tion of trespass against the officer for false -imprisonment.® In one such case, the court discharged the defendant upon motion.^ The difference between the names, however, must be a material one ; for when there is only an inaccuracy in the spelling, so that the name is still idem sonans, the rule does not apply .^ But an appearance by the defendant in the suit, either by his wrong name or his right, without pleading in abatement, will render him liable to be taken on the execution by the wrong name.^ A person who causes another to be arrested on mesne pro- cess without first making the required affidavit, is liable to an action by the person arrested.^" 1 Wright V. Keith, 25 Me. 158. ^ Cole d. Hindson, 6 T. R. 234 ; 2 Fitch V. Loveland, Kirby (Conn,), Shadgett v. Clipson, 8 Bast, 328 ; Coffall 386 ; Hubbard v. Mack, 17 Johns. (N.Y.) u. Hentley, 1 Marsh. 75. 127. 7 Wilks V. Lorck, 2 Taunt. 400. Whithead v. Keyes, 3 Allen, 495. 8 Ahitbol v. Beniditto, 2 Taunt. 401. " Mowry v. Chase, 100 Mass. 79. « Crawford w. Satchwell, 2 Stra. 1218. 6 Burr. 210 ; Moore, 457. m Cody v. Adams, 7 Gray, 59. § 50.] AEREST ON MESNE PROCESS AND EXECUTION. 155 The fees of magistrates for services in the proceeding, con- sidered in this chapter, are specified in the statutes.^ § 49. Rights and Remedies of Sureties on Recognizance. — The statutes provide that whoever recognizes as surety as provided in tlae Public Statutes, c. 162, may at any time be- fore breach of the recognizance surrender his principal and exonerate himself from all further liability, in the manner provided for the surrender by bail, and all the proceedings on such surrender shall be the same as provided in the case of bail.2 The rights, powers, and remedies of bail are treated of in the next chapter. § 50. Discharge of a Debtor claiming Support as a Pauper. — It is provided by statute that when a person confined in close prison on mesne process or execution in a civil action claims support as a pauper, the jailer shall furnish his support at the rate of one dollar and seventy-five cents a week, to be paid by the creditor. The plaintiff or creditor in such case shall, if required by the jailer, either from time to time advance the money necessairy for the support of the prisoner, or give the jailer satisfactory security therefor. If the plaintiff or cred- itor neglects so to do for twenty-four hours after demand, the jailer shall discharge the prisoner. Such demand may be made of the officer who made the commitment, or of the plaintiff or creditor or his attorney, at any time after the prisoner has claimed such support. If a debtor committed on execution claims support as a pauper, the creditor may at any time thereafter order him to be discharged. If the creditor fails to provide the means of support of the debtor, legally required, it is the duty of the jailer forthwith to release the debtor from custody.* 1 Pub. St. c. 162, § 68. ' County of ■Worcestem.Schlesinger, 2 Pub. St. c. 162, § 63. 16 Gray, 166, 168. 156 BAIL IN CIVIL ACTIONS. [CH. XVIII. CHAPTER XVIII. BAIL IN CIVIL ACTIONS, § 1. Object and Nature of Bail. — Connected with the sub- ject of the service of a writ as a capias is that of bail ; for after the command in the writ to take the body of the de- fendant follows the further direction to the officer, " and him safely keep." The officer, therefore, is bound to keep as well as to arrest the defendant. And one method of doing this is by com- mitting him to the county jail ; which method the officer may, and for his own safety and convenience will, adopt, unless the defendant avail himself of the privilege of giving bail. The term " bail " is derived from the French bailler, to deliver, the defendant being delivered to his bail by the sheriff. Bail, therefore, arises out of the duty of an officer to keep the person whom he has arrested, and is a substitute, created by law, for actual imprisonment. The bond is taken for the sheriff's indemnity, and is given for the defendant's conve- nience. Its object is to insure the defendant's appearance in the suit and performance of the judgment, without subject- ing him to actual custody ; and in its nature it is a certain form of security established by law to effect those purposes, of which, by complying with its conditions, the defendant may avail himself as a matter of right. So that the com- mand to the officer in the writ, in connection with the right of bail, is "to arrest the defendant, and him safely keep, either by detaining him in actual custody, or by taking from him a legally established bail-bond, as the defendant himself § 3.] BAIL IN Civil actions. 157 may elect. If he offer you such a bond, you must accept it, and discharge him from custody ; and if you take such a bond, legal in all respects, you are no further responsible." ^ § 2. Origin of Bail. — At common law, the sheriff was not obliged to let the defendant to bail on mesne process, but might keep him until he procured his release by a writ of mainprise.^ But he might let him to bail, though if he did so he was himself responsible. This right of the defendant in civil actions to be admitted to bail on mesne process, and the consequent obligation of the officer to discharge him from arrest, when proper security is offered, are founded upon the English Stat. 23 Hen. VI. c. 10, which, though never re-enacted, has been virtually adopted in Massachusetts as part of the common law, modi- fied, however, in some degree, as to the mode of taking and the effect of bail, by the statutes.^ § 3. Process of BaiL — The practice in Massachusetts in taking bail is different from that in England. There, upon an arrest, the defendant, in the first place, gives bail to the sheriff by bond, conditioned simply that he shall appear, according to the exigency of the writ, upon its return-day, or within four days afterwards. This is called "bail below." He then appears accordingly, by putting in bail to the action, which must be done by way of recognizance, before the court or some judge, or a commissioner, conditioned that the prin- cipal shall pay the debt, or surrender his body to be taken in execution, or that the debt shall be paid by the bail. This latter process of bail by recognizance is entirely distinct, though the persons becoming sureties may be the same, from that at first given to the sheriff by bond, and is termed " bail to the action," or "bail above." If the plaintiff be dissatis- fied with the bail above thus offered, he may compel them to justify; that is, to show that they have sufficient within the county to respond to the judgment. If they do this, and are accepted, then, as also when they are at once admitted by the 1 Howe's Pr. 186. » Sparhawk v. Bartlett, 2 Mass. 188, 2 Vent. 85 ; 3 Bl. Com. 128 ; 6 Bac. 194 ; St. 1784, c. 10. Abr. 179. 158 BAIL IN CIVIL ACTIONS. [CH. XVin. plaintiff without being required to justify, the defendant is said to have put in and perfected bail above.^ § 4. In the English practice, therefore, there are two pro- cesses of bail, — the first, or the bail below, given by bond to the sheriff simply as security that the defendant shall appear ; the second, or the bail above, put in after the return- day of the writ, by recognizance before the court, and con- ditioned that the defendant shall abide the judgment and not avoid, and the putting in of which constitutes the appearance, and is thereby a compliance with the condition of the first bond. And the remedies of the plaintiff are conformed to this practice of giving bail in England. If the defendant, after giving bail below, do not appear, by putting in and per- fecting bail above, the plaintiff may either take an assignment of the first bail-bond from the sheriff, — which assignment the sheriff is bound to make, and for refusing which he is liable to an action upon the case, and may maintain an action of debt thereupon, against the sheriff's bail, in his own name;^ by doing which, however, he discharges the sheriff, provided the bond be valid,^ — or, if he be dissatisfied with the sheriff's bail, he may proceed against the sheriff himself, by calling upon him to return the writ, and afterwards to bring in the body of the defendant. And if the sheriff do not then cause sufficient bail to be put in and perfected above, he will him- self be responsible to the plaintiff for the whole amount of the debt.* But he will have his remedy over against the bail he took, upon their bond. If, however, the defendant do appear, and put in and per- fect bail above by recognizance, the recognizance becomes a matter of record, and the bail below and the sheriff are entirely discharged ; and the duties and liabilities of the bail above, thus taken, are similar to those of bail in Massachu- setts, for nothing is a breach of the bail-bond, taken in that State, which is not also a breach of the condition of the recog^ nizance of bail in England. Etherick v. > Arch. Pr. 81, 101 ; Howe's Pr. » Arch. Pr. 93, 94 ; 184. Cooper, 1 Salk. 99. » Arch. Pr. 81, 101. 4 Arch. Pr. 87, 101. § 6.] BAIL IN CIVIL ACTIONS. 159 The statutes provide that "a defendant arrested on mesne process shall be released on giving bail ; but if he has been sentenced to imprisonment on a charge of fraud, under the provisions of chapter one hundred and sixty-two, the giving of bail shall not discharge him from such imprisonment."^ § 5. How Bail may be taken. — When a person is arrested on mesne process in a civil action, bail is taken by a bond to the sheriff, if the writ is served by him, otherwise to the officer by whom the writ is served, with condition that the defendant shall appear and answer to the plaintiff, abide the final judgment of the court, and not avoid.^ The bond must be approved, returned, and filed, as required by statute.^ Two sureties to the bond should be required ; but the bond will bind the persons who execute it, though taken with only one surety.* In the proceedings after an arrest against the defendant as a poor debtor, the bail is taken by recognizance with sureties.* In criminal cases, also, bail is taken by recognizance. § 6. Form and Condition of the Bond. — The obligatory part of the bond is like that of a common bond. The conditional part of the bond generally contains, in the first place, a recital of the name and arrest of the defendant, the name of the plaintiff at whose suit the arrest is made, the amount of the debt or damage demanded, the nature of the suit, the date of the writ, and when and where it is return- able. All these circumstances are essential to be stated, though strict accuracy in setting them forth is not required.^ Yet, as they must appear substantially somewhere in the bond, to give it validity,^ they are usually set forth in this way of recital in the condition. After this recital, the condition of the bond must be solely that the defendant shall appear at the time and place named 1 Pub. St. q. 163, § 1. B Pub. St. c. 162, § 28-36. " Pub. St. c. 163, § 2. » Colbnrn v. Downes, 10 Mass. 20. » Pub. St. c. 163, § 4-6. ' Churchill v. Perkins, 5 Mass. 541. * Pub. St. c. 163, § 5. 160 BAIL IN CIVIL ACTIONS. [CH. XVIII. in the writ, to answer the plaintiff's suit, and shall abide the order and judgment of court thereon, and not avoid. If the bond contain any other or further condition it is void.^ § 7. Penalty of Bond. — As far as the officer is concerned, he must hold the defendant to bail in that sum to the amount of which he is commanded in the writ to attach property, and therefore this amount always governs that of the penalty in the bond. If, however, the plaintiff, in his writ, should direct an attachment to an unreasonable amount, and the officer be thereby obliged to commit the defendant for inability to pro- cure bail in such a sum, the court will relieve upon habeas corpus, and reduce the sum ; for the Constitution of Massa- chusetts provides that excessive bail shall not be demanded. But the officer may, and for his own security must, fix the penalty of the bond at the sum named in the writ for attach- ment.^ § 8. Sureties on a Bail-Bond. — The statutes provide that " an officer shall not be required to accept a bail-bond unless with two sureties at least, eaph of them having sufficient property within the commonwealth ; and he may examine, on oath to be administered by him, the persons offered as sure- ties, as to their sufficiency. If he takes a bail-bond with one surety only, he shall be liable to the plaintiff for any loss sus- tained by the insufficiency of the bail, although the surety was actually sufficient when taken." ^ Bail for a person arrested in a civil suit must not only have property to a sufficient amount, but must be of good credit for that sum.* The statute requires two sureties at least, and the sheriff is liable if he takes only one surety ; ^ but the bond is not for that cause void,^ nor for the reason that such sole surety resided out of the Commonwealth, but having personal prop- erty in the county to the amount of his liability on the bond.^ 1 Rogers v. Keeves, 1 T. E. 418. * Brown v. Allen, 3 Dane Abr. 90. ■' Part i. art. 26; Jones v. Kelly, 17 ' Long v. Billings, 9 Mass. 479. Mass. 116 ; Whiting u. Putnam, 17 Mass. « Lane v. Smith, 2 Pick. 284. 175. ' Glezen K. Eood, 2 Met. 490. 8 Pub. St. c. 163, § 3. § 10.] BAIL IN CIVIL ACTIONS. 161 The surety is liable in scire facias, if the writ on which the principal was arrested is identified by a date, the full name of the plaintiff, and the surname of the defendant.' § 9. Sureties on a Recognizance. — In proceedings in a civil action in which a defendant is arrested on mesne pro- cess or on execution, and in the subsequent proceedings against him as provided in Public Statutes, c. 162, the debtor gives bail when bail is required by recognizance.^ So in criminal proceeding bail is taken by recognizance. Whether bail is taken by bail-bond or by recognizance, the rights and powers in relation to their principals are the same. Their liabilities also are the same. § 10. When Bail may be taken. — Bail may be taken by recognizance in all cases where expressly required by statute, and at times specified by statute, or by order of a court or magistrate.^ When a defendant is arrested on mesne process, bail may be taken by bail-bond at any time after the arrest and before the return-day of the writ by the oflScer who serves the writ, or by the jailer. He must be allowed reasonable time to pro- cure bail.* If bail be not furnished by the defendant, the officer may commit him to jail, and leave him to give bail to the jailer, who is also a deputy of the sheriff, after commit- ment, if he intend giving bail ; for as the officer, after he has arrested, must, at his peril, keep the defendant, he is not obliged to incur the risk of an escape or a rescue by wait- ing for or going with the defendant to obtain the requisite sureties. For the same reason, even if the requisite sureties are at hand, the officer is not obliged to wait until the bond is filled up and executed, but may commit the defendant, and leave him to give them as bail to the jailer afterwards. But if the defendant, as soon as he is arrested, should tender to the officer a legal bail-bond, properly executed, in that case, as he could incur no danger, the officer could not commit him, but would be bound to accept the bond, and to dis- charge him at once from custody. 1 Danker v. Atwood, 119 Mass. 146. ^ gee ante, c. I. 2 See ante, c. 17, p. 133. * Pub. St. o. 162, § 27. U 162 BAIL IN CIVIL ACTIONS. [CH. XVIII. § 11. The law as to bail must be complied with in all cases, whether the bail be taken by bond or by recognizance. When the defendant is arrested on mesne process, whether the bail be given to the officer who serves the writ before commitment, or to the jailer afterwards, both for the sheriff's indemnity and for the discharge of the defendant, all the requisites of law in relation to the bail-bond must be com- plied with.^ The security taken must always be in the manner required by statute. If given even to the proper person, by any other instrument or in any other form, the proceedings would be absolutely void;^ the sureties would not be held, and the sheriff would be liable as for taking no bail. This, however, applies exclusively to security given to the sheriff, and does not extend to such as may be given to the party ; for though the sheriff is by the statute confined to a particular form, the party himself is not.^ But giving secur- ity to the party is not giving bail. § 12. Duties and Liabilities of Officer in taking BaiL — An officer, in taking bail, should do it strictly in conformity with all the provisions of the statutes of the State where it is taken. If he do this in good faith, neither he nor the sheriff can in any event be liable. When he takes two sureties, who are reputed to be of sufficient ability, he is not liable, though they afterwards become insolvent.* A sheriff who knowingly takes insufficient bail is liable for the amount of the plain- tiff's judgment against such bail, after deducting the prob- able value of that judgment, and the judgment against the principal.^ If the insufficiency be in the number or the reasonableness of the sureties, then, in addition to the former remedy, the plaintiff, instead of treating the proceedings as a nullity, may bring scire facias against such bail as were taken, and at the same time an action on the case against the sheriff for the default of the officer in taking insufficient bail, and 1 Howe's Pr. 188. 4 Rice v. Hosmer, 12 Mass. 127. 2 Rogers i>. Reeves, 1 T. R. 418. » Gerrish v. Edsou, 1 N. H. 82. « lb. ; Hall v. Carter, 2 Mod. 304. § 13.] BAIL IN CIVIL ACTIONS. 163 for a false return. In Massachusetts, the action should be tort.i A sheriff is liable for taking insufficient bail on mesne pro- cess, and can only justify by showing that the bail was amply sufficient, when taken. An apparent sufficiency will not jus- tify him .2 When an action is brought for not delivering the bail-bond, ' it has been held that the amount of the sheriff's liability is that of the original judgment, in all cases, and that no evi- dence in mitigation of damages will be received.^ When the action is for taking insufficient bail, and for false return, evidence in mitigation of damages has been received, and ver- dicts giving nominal damages have been sustained. The bet- ter way, therefore, in all cases when there is a defect in the officer's taking bail, seems to be to treat the proceedings as a nullity, and proceed for not returning or not delivering the bail-bond.* The sheriff, like the bail, is not liable at all until after a return of non est inventus.^ An officer must not refuse sufficient bail. If a defendant who is arrested on mesne process furnishes to the officer such a bail-bond as is required by the statutes of the State, and complies with all the requisitions of law relative thereto, the officer is bound to admit him to bail; and for refusing, is liable to the defendant in an action on the case. If they be complied with, and the defendant be admitted to bail, the officer is no further responsible. But if the officer admit the defendant to bail, without enforcing all these requisitions, he becomes liable to the plaintiff.^ An officer must not demand excessive bail. If excessive bail is taken, the Supreme Court will grant relief upon habeas corpusJ § 13. Jailers must receive Persons surrendered. — Every 1 Sparhawk v. Bartlet, 2 Mass. 188; < "Weld v. Bartlett, 10 Mass. 470; Eice V. Hosmer, 12 Mass. 127 ; Mather Young v. Hosmer, 11 Mass. 89 ; Nye v. V. Green, 17 Mass. 60; Young v. Hos- Smith, 11 Mass. 188; Eice v. Hosmer, mer, 11 Mass. 89 ; Eayner c;. Bell, 15 12 Mass. 127. Mass. 377. ^ Mather v. Green, 17 Mass. 60. 2 Harrington v. Bogue, 15 Vt. 26. ^ Howe's Pr. 192. ' Simmons v. Bradford, 15 Mass. 82. " Jones v. Kelley, 17 Mass. 116. 164 BAIL IN CIVIL ACTIONS. [CH. XVIII. person surrendered and committed must be received by the jailer, and held in custody. He may be forthwith bailed, whether notice of the surrender has or has not been given to the plaintifP, and shall in all respects have the same rights and priYileges as if committed upon the original arrest.^ § 14. The liabilities of bail vary with the nature of the cases in which bail is given. They involve questions of general law, and not of practice. They depend in part upon provisions of statute and in part upon principles of the common law. § 15. Rights of Bail. — By the common law, the bail has the custody of the principal, and may take him at any time and in any place. The taking is not by virtue of any process or warrant, but is a continuation of the custody, which has been, at the request of the principal, committed to the bail. The right of bail to arrest the principal arises from the rela- tion of the parties, which is not changed by the principal being out of the county or State where he was arrested. The bail, therefore, may take the principal in any State of the Union, and on any day, even Sundaj', and at all times of the day or the night, and in his dwelling-house. ' If the door should not be opened on demand, the bail may break it down, and take the principal, not, however, using any more force than is necessary in making the arrest. The bail may take the principal himself, or depute an agent to take him.^ And bail may depute another to surrender their principal ; for the right to surrender results from the relation between bail and principal, and is to be effected as circumstances shall require, and is not a personal power to be executed by bail only .2 The bail may surrender their principal to the officer hold- ing the execution before its return, and this will save the bond at law. The bond is also saved if the principal die before the return of the execution; for it has become impossible, by inevitable accident, to make the surrender ; but if the prin- 1 Pub. St. c. 163, § 20. 8 1 Johns. Cas. 304; 7 Johns. 145. 2 Commonwealth v. Brickett, 8 Pick. 138 ; Bean v. Parker, 17 Mass. 591. § 17.] BAIL IN CIVIL ACTIONS. 165 cipal die after the return of the execution, this will not exonerate the bail.^ § 16. Surrender of BaiL — The bail may Surrender the prin- cipal in the court where the scire facias is pending at any time before final judgment therein against him, and on paying the costs of the scire facias up to that time he shall be dis- charged. And he may at anj' time before final judgment against him, on a writ of scire facias, exonerate himself from further responsibility by surrendering his principal, as pro- vided by statute.'' As to when it may be done after final judgment, see Staf- ford V. Knight, IIT Mass. 281-285. Such surrender may be made to the keeper of the jail, either in the county in which the principal was arrested, or in that to which the original writ against the principal was returnable ; and the jailer must receive the prisoner, and hold him in custody in like manner as if he had been committed by the officer who arrested him on the original writ.^ The surrender may be by the principal himself, or by the attorney of the bail,* or by the executor or administrator of the bail.^ But the surrender must be matter of record, and cannot be proved by parol.® If the debtor is confiued in the State prison for crime, he may be brought up by habeas corpus, for the purpose of being surrendered, in discharge of his bail, even though the creditor cannot take him.' § 17. How Bail may be discharged. — Bail will be dis- charged by amendments, whereby new causes of action are introduced, and generally by any acts which will dissolve an attachment.^ Where all demands between the parties to an action were referred to referees, it appearing that the referees did not admit any new demand, it was held that the bail were not discharged.^ 1 Mott w. Hazen, 27 Vt. 208. « VThitton v. Harding, 15 Mass. 2 Pab. St. c. 163, § 12-17. 535. s Pnb. St. c. 163, § 15. ' Bigelow v. Johnson, 16 Mass. 218. * Coolidge V. Gary, U Mass. 115. » Willis v. Crooker, 1 Pick. 204. 5 Wheeler v. Wheeler, 7 Mass. 169. » Seeley v. Brown, 14 Pick. 177. 166 BAIL IN CIVIL ACTIONS. [CH. XVIII. Bail are discharged when the principal becomes bankrupt, and obtains a discharge from his debts in a court of bank- ruptcy or insolvency ; ' also, when the principal is convicted of a crime, and imprisoned. In such case the bail will be discharged on motion.^ Fraudulent conduct by plaintiff, with a view to charge the bail, maj' be shown by them in defence against him.^ Bail are discharged if a scire facias be not served on them within one year after the rendition of judgment against the principal.* Sureties on a bail-bond are discharged b}'' a commitment of the principal on an alias execution, although a scire facias, commenced after a return of non est inventus upon the first execution, be pending at the time of such commitment.^ Where, by the act of God or the act of the government, or by sentence of the law, the principal is removed or taken from the custody or control of the bail, before they are fixed, so that they cannot surrender him to enable the creditor to charge him in execution, and that without any fault on their part, then the bail are entitled to their discharge.^ Wherever, by the act of the law, a total impossibility or temporary impracticabilit)'' to surrender a defendant has been occasioned, the court will relieve the bail from the unforeseen consequences of having become bound for a party whose con- dition has been so changed, by operation of law, as to put it out of their power to perform the alternative of their obli- gation, without any default, laches, or possible collusion on their part.'^ Thus, it is held in England that, where the principal has been impressed into the naval service, the bail will be exon- erated, for this is the act of the government ; but where he voluntarily enlists into the service of the United States, the bail will not be exonerated, for this is the voluntary act of 1 Champion u. Noyes, 2 Mass. 481 ; * Rice v. Games, 8 Mass. 490. 1 Tidd'sPr. 290. 6 Warren v. Gilmore, 11 Cnsh. 15. 2 Way V. Wright, 5 Met. 380. « Way i'. Wright, 5 Met. 385, over- 8 Van Ness v. Fairchild, 1 D. Chip, ruling Parker v. Chandler, 8 Mass. 264. ( Vt ) 153 ; Stevens v. Bigelow, 12 Mass. ' 1 Tidd's Pr. 290. 437. § 18] BAIL IN CIVIL ACTIONS. 167 the party, and the bail have taken the risk of his acts upon themselves.-' When a bail-bond is given by one of two joint defendants, a discontinuance by the plaintiff, as to the other defendant, will not operate to release the sureties.^ If the debtor is confined in the State prison for crime, he may be brought up by habeas corpus, for the purpose of being surrendered, in discharge' of his bail, even though the creditor cannot take him.^ So if he be in custody on a charge of felony, it is said to be almost a matter of course, and what the bail are entitled to ask ex dehito justitix^ § 18. Return on Execution to charge Bail. — The execution against the principal should be directed to the sheriff of the county where the writ was served ; and a return of non est by him will lay the foundation for a scire facias against the bail, although the principal may be in another county.^ A return by the sheriff that the judgment debtor has en- listed in the service of the United States is not sufficient to charge the bail ; ^ but such an enlistment will not constitute a defence for the bail in a suit against them.'' It is not actually necessary that the principal should be arrested before he makes a bail-bond ; and in the action against the bail, the arrest need not be stated, for it is not traversable.^ The arrest could not be proved but by the return of the officer, and such return cannot be contradicted b}' parol.^ If the return be false, the remedy is against the officer making it. The bail-bond also admits as a fact the arrest of the principal, and this fact cannot afterwards be denied by the parties to the bond.i" The bond, however, must be actually executed by the prin- cipal as well as the sureties; except as provided by the stat- 1 Herrick v. Richardson, II Mass. ^ Herrick v. Richardson, 11 Mass. 234; Sayward v. Conant, 11 Mass. 146. 234. 2 Sanderson v. Stevens, 116 Mass. ' Sayward v. Conant, 11 Mass. 146; 133. Harrington v. Dennie, 13 Mass. 93. 3 Bigelow V. Johnson, 16 Mass. 218. » Stra. 643. 4 Sharp V. Sheriff, 7 T. R. 227. 9 Howe's Pr. 539. s Brown c. Wallace, 7 Mass. 208; i" Bean v. Parker, 17 Mass. 591. Turner v, Lowry, 2 Aik. (Vt.) 72. 168 BAIL IN CIVIL ACTIONS. [CH. XVIII. ute, where a good reason is given why the bond is not signed by the party. The certificate required by the statutes to authorize the arrest must be annexed to the execution.^ § 19. Remedy against Bail. — In the case of Gale v. Boyle,^ Shaw, C. J., said : " A bail-bond by the Statutes of Massa- chusetts is an instrument sui generis. It contains the prop- erties of bail below and bail above 'at common law. It is in form a bond to the sheriff, but has the force and effect of bail above by recognizance. It is so far regarded as a recogni- zance to the creditor that scire facias will lie upon it by him against the bail. It is therefore treated as a recognizance of record of the court in which judgment is rendered. Debt by the sheriff will not lie upon it." For similar reasons an ac- tion of contract will not lie upon it ; sdre facias is the proper remedy.* The scire facias must be issued from the court in which the judgment against the principal is rendered, and may be taken out of the clerk's office in va,cation as well as in term time.* When a recognizance or bond taken under chapter 162 of the Public Statutes is broken, the creditor may have a remedy thereon by action of contract, to be commenced with- in one year after such breach ; and judgment shall be entered for the amount of the penalty, but execution shall issue for so much thereof only as may be justly and equitably due ; but if the recognizance was taken on an execution, the exe- cution shall not issue for less than the amount due on the original judgment, with all the lawful costs and charges arising after the issuing of the original execution. § 20. Defendant's Answer to Scire Facias. — In scire facias against bail the defendant may appear and answer either jointly or severally to the plaintiff's allegations. ^ He may plead non est factum to the bond, or nul tiel record to the recovery against the principal. He may plead in bar also that an alias execution issued, on which the principal 1 Rhodes v. Brooks, 16 Gray, 170. < Pub. St. c. 163, § 9. 2 6Cush. 138. 8 Pub. St. c. 163, § 11. 8 Pub. St. c. 163, § 8; c. 167, § 1. § 22.] BAIL IN CIVIL ACTIONS. 169 had been arrested, or that the judgment against the princi- pal has been satisfied, released, or diseharged.i And although the return of non est by the officer is, in general, conclusive in the scire facias against bail, yet where the return has been procured by the fraud of the plaintiff, this may be pleaded in bar of the scire facias? The bail may also show, in answer to the scire facias, what- ever will render the arrest unlawful or ineffectual by opera- tion of law.^ No such action can be maintained against a person as bail, unless the writ of scire facias is served pn him within one year after the rendition of final judgment against the princi- pal,^ although the defendant has been absent from the State during the whole time.^ § 21. Bail before Trial Justice, Police Court, &c. — When bail is taken in an action before a trial justice, or police, dis- trict, or municipal court, the justice or court may issue a scire facias against the bail, although the amount of the debt and costs on the original judgment exceeds the amount to which his jurisdiction is otherwise limited ; and the rights and obli- gations of the bail, and all proceedings as to the surrender of the principal and the action against the bail, will be substan- tially the same as are provided with regard to bail when taken in suits in other courts.^ The bail may surrender the principal in court as provided in the statutes.'^ § 22. When a Principal claims Support as a Pauper. — When a principal, surrendered by his bail and committed to jail, claims support as a pauper, the jailer may require the plain- tiff, or his attorney in the suit, to give security or to advance the money for the support of the defendant in like manner as if the commitment had been made by an officer. If the plaintiff neglects so to do for twenty-four hours after being so required, the jailer may discharge the defendant.^ 1 Harrington w. Dennie, 13 Mass. 93. ^ Henstis v. Rivers, 103 Mass. 398. '' Stevens v. Bigelow, 12 Mass. 434; « Pub. St. c. 163, § 22. Winchell v. Styles, 15 Mass. 230. ' Pub. St. c. 163, § 23, 26. 3 Harrington v. Dennie, 13 Mass. 93. ' Pub. St. c. 163, § 28. * Pub. St. c. 163, § 10. 170 ATTORNEYS. [CH. XIX. CHAPTER XIX. ATTOENEYS. § 1. At common law, the plaintiff and defendant could gen- erally appear in court for themselves, and no one was allowed to appear for another, except by the king's special, permis- sion, by writ or letters-patent.^ But a corporation aggregate, not being capable of a personal appearance, could only ap- pear by an attorney, who must have been appointed under the common seal.^ By Statute 13 Anne, c. 1, re-enacted by Statute 1785, c. 23, it is provided that parties may manage their causes for them- selves, or by the assistance of such counsel as they shall see fit to engage, each party, however, being restricted to two, so " that the adverse party may retain others of them." This statute having perhaps been construed to restrict parties to an appearance by those who were known as attorneys, the Statute of 1789, o. 58, was passed, empowering every citizen to appear by any person of a decent and good moral character, whom he shall specially appoint by letter of attorney. The only exceptions to the general rule allowing all parties to appear by attorney are the cases of infants, femes covert, and persous non compotes mentis. Infants must sue by pro- chein ami or guardian ; and defend by guardian, and not by prochein ami? Married women must appear in person, for the purpose of pleading coverture.* In the English practice, it is said that idiots must appear, either to sue or to defend, in person ; but that lunatics must appear by guardian if 1 Co. Litt. 128 a; 1 Mod. 244; Jack- » 2 Saund. 117/ n. 1; "2 Saund. son V. Stewart, 6 Johns. 34. 212 a, n. 4; Miles v. Boyden, 3 Pick. 2 Com. Dig. t. Pleader, 2 B. 2 ; 2 Co. 213. Litt. 66 6. 4 Onlds v. Sansom, 3 Taunt. 261. § 4.] ATTORNEYS. 171 within age, and by attorney if of full age.^ In Mitchell et al. V. Kingman,^ it was held that a defendant who was non compos had no right to appear and plead by attorney, — that a plea so made would be treated as a nullity ; and if the fact ap- peared at the time of trial, a guardian would be appointed, who might plead de novo. § 2. Who may manage a Suit by Special Power. — Any per- son of good moral character, unless he has been removed from practice as an attorney, may manage, prosecute, or defend a suit if he is specially authorized by the party for whom he appears, in writing, or by personal nomination in open court.^ § 3. Who may be admitted to the Bar. — The statutes pro- vide that "a citizen of the State, or an alien who has made the primary declaration of his intention to become a citizen of the United States, and who is an inhabitant of the State, of the age of twenty-one years, and of good moral character, may, on the recommendation of an attorney, petition the Supreme Judicial Court or Superior Court to be examined for admission as an attorney; whereupon the court shall assign a time and place for the examination, and if satisfied with his acquirements and qualifications, he shall be ad- mitted." * By Statute of 1882, c. 13, the above provision is made to apply to women. § 4. Further requisites for admission to the bar are pre- scribed by rules of court.^ Whoever is admitted as an attorney must, in open court, take and subscribe the oaths to support the Constitution of the United States, and of this Commonwealth, and the oath of oiSce ; and the form of the oath is prescribed by statute.^ A person admitted an attorney or counsellor of the highest judicial court of any other State of which he was an inhabi- tant, and who afterwards becomes an inhabitant of this State, 1 BeTerly'sCase,4 Co. 124; 2 Saund. * Pub. St. c. 159, §34. 333, n. 4. ^ Eules of S. J. Court, adopted Nov. 1! 5 Pick. 431. 14, 1876 ; 121 Mass. 600. 8 Pub. St. c. 159, § 41. 6 Pub. St. c. 159, § 35. 172 ATTORNEYS. [CH. XIX. may be admitted to practice here upon satisfactory evi- dence of his good moral character and his professional quali- fications.^ § 5. Authority of an Attorney. — A parol retainer is suffi- cient to commence a suit, and to act in its prosecution. The declaration by an attorney that he is employed by the party to a suit is ordinarily deemed sufficient. An attorney has power, under his general authority, to do everything that is necessary to the regular and proper con- ducting of the suit in v^hich he acts. He may become non- suit, or confess judgment upon such terms as he thinks proper. Subject, however, to the interference of the court in case of collusion or fraud.^ An attorney of record has power to refer the suits; for he is authorized to prosecute or defend, and this is one of the legal modes of prosecuting and defending. But he has not power to compromise the suit.^ He may appeal from a judgment of an inferior court, or a justice of the peace, to a higher court, and enter into the recognizance to prosecute the appeal in his client's name, and may himself be a surety in the recognizance.* An attorney who receives a note from his client to collect, is warranted by his general retainer to bring a second suit upon the note, after being nonsuited in the first for want of due proof of its execution.^ The attorney of record for the plaintiff in a suit where bail was taken has power, of course, to sue out a scire facias against the bail, if non est inventus be returned on the execution.^ And he may bring a writ of error to reverse an erroneous judgment against his principal.^ But it seems he cannot sue out a scire facias on the judgment, for that requires a new retainer. Where a right of action has been assigned for a valuable consideration, the assignment includes a power to prosecute the suit in the name of the assignor, although no express power be given ; and the suit 1 Pub. St. c. 159, § 38. 6 Scott V. Elmendorf, 12 Johns. 315. 2 Crary v. Turner, 6 Johns. 51. " Dearborn v. Dearborn, 15 Mass. " Buckland v. Conway, 16 Mass. 396 ; 316. Holker r. Parker, 7 Cranoh, 436; Bac. ' Grosyenor v. Danforth, 16 Mass. Abr. Attorney, D. 74. * Adams v. Kobinson, 1 Pick. 461. § 5.] ATTORNEYS. 173 may be prosecuted without the consent or even against the express dissent of the nominal plaintiff.^ A person admitted in any court may practise in every other court in the State ; and there is no distinction of counsellors and attorneys.^ Whatever a party can do, and is necessary to be done, in order to the proper commencement of an action and its prose- cution in due course of law, an attorney employed to conduct the action may do. Beyond this, no authority can be implied from the employment alone.^ The rules of the Superior Court of Massachusetts provide that the right of an attorney of that court to appear for any party shall not be questioned by the opposite partj', unless the exception be taken at the first term of his appearance. And when the authority of such attorney to appear for any party shall be demanded, if the attorney shall declare that he has been duly authorized to appear, by an application made directly to him by such party, or bj' some person whom he believes to have been authorized to employ him, such declara- tion shall be deemed and taken to be evidence of an authority to appear and prosecute, or defend, in any action or other proceeding.* No similar rule has been adopted by the Supreme Judicial Court. The authority of an attorney continues until judgment, and for a j'ear and a day after, to sue out execution, and for a longer time if he continues the execution alive and in force.^ After judgment has been recovered, the attorney of record has authority to receive the amount, either upon the execu- tion or without it, and to discharge the judgment and execu- tion. But he has no authority to discharge the debt upon receiving a less sum than the amount recovered, nor upon receiving collateral security to an amount larger than the 1 Salk. 86; Say. 218; Boylston ■/. 40; Wieland b. White, 109 Mass. 392, Greene, 8 Mass. 465; Jones v. Witter, 394; Coolidge o. Cary, 14 Mass. 115; 13 Mass. 304; Eastman u. Wright, 6 Everett i/. Charlestown, 12 Allen, 93, Pick. 316. 96. 2 Pub. St. u. 159, § 37. * Kule 2. 8 Moulton V. Bowker, 115 Mass. 36, « Bac. Abr. Attorney, D. ; 5 Pet. 99. 174 ATTORNEYS. [CH. XIX. debt.^ Nor can he discharge the debtor from imprisonment without satisfaction.^ And if the jailer permit him to depart on such an order, he will be liable for an escape.^ The authority of the attorney after judgment will cease if the client himself assumes the management of the debt ; as, if he take the execution into his own hands, paying the attorney his costs, or in any way revoke the power and satisfy the lien.* The authority of an attorney employed in a suit terminates on the death of his client.^ § 6. Duties of Attorneys. — Attorneys are officers of the court, and as such are subject to its control and superin- tendence. They imj be compelled to perform their duties, and punished for misdemeanors and malpractice committed in their official capacity. The court may either suspend an attorney from practice for a limited time, or expel him entirely.* The principal duties of an attorney are care, skill, and integrity. If he be not deficient in these requisites, he is not responsible for any error or mistake arising in the exer- cise of his profession.''' But for a deficiency in skill or care, by which a loss arises to his client, an attorney is liable.^ So if he disobey the lawful instructions of his chent, and a loss ensue, he is responsible for it.® And the duty of an attorney to his client is not confined merely to the original suit in which he is at first retained, but may extend to subsequent proceedings. Thus, if bail have been taken in an action, it is the duty of the attorney who has been employed therein, though not specially instructed upon the subject, seasonably to sue the bail ; and if by his neglecting to do it, his client loses the benefit of the judg- 1 Parker v. Downing, 13 Mass. 46.5. 6 Randall, Petr., 11 Allen, 472, 473. 2 Langdon v. Potter, 13 Mass. 319 ; 7 pjtt v. Yalden, 4 Burr. 2060 ; 3 Lewis V. Gamage, 1 Pick. 347. Black. Com. 26, note. 3 Jackson d. McCrea v. Bartlett, » Russell v. Palmer, 2 Wils. 32.5 ; 8 Johns. 361 ; Kellogg v. Gilbert, 10 Swannell v. Ellis, 1 Bing. 347 ; Vamnm Johns. 220. „. Martin, 15 Pick. 440. * Parker v. Downing, 13 Mass. 465. » Gilbert v. Williams, 8 Mass. 51. 5 Gleason v. Dodd, 4 Met. 333 ; Kel- ley V. Riley, 106 Mass. 339, 341. § 7.] ATTORKETS. 175 ment recovered, he is liable to pay its amount.^ So it is the duty of an attorney, who has been retained in an action in which an erroneous judgment has been rendered against his client, to institute process for the reversal of such judgment, although he have received no special instructions from his client to do so.^ An attorney is not bound to produce any paper intrusted to him by his client.^ An attorney is bound to follow the instructions of his client, and if he disobey them, and loss follows to his client, he will be responsible.* The acts of an attorney within the scope of his authority are binding on his client, and his authority is determined by the death of his client.^ § 7. Appearance, Effect of. — The mere appearance of an attorney for the defendant is always deemed sufficient for the opposite party, and for the court, who will look no further, and will proceed as if he had sufficient authority, and leave any party who may be injured to his action, unless there appears to be fraud or collusion in the case.^ The public office which he bears, the oath under which he acts, and, it may be added, the experience of the general integrity and fidelity of the profession, have operated to establish a usage, and make that usage law, that, except in extreme cases, the appearance of an attorney for a party, although in fact with- out authority, shall bind him. The case is strongly analogous to that of sheriffs and other returning officers. Their returns are taken to be true, and not permitted to be contradicted, and, if false, the remedy is by an action against them.' Chief Justice Marshall says, in Osborn et als. v. Bank of United States,^ " The practice has existed, we believe, since the first 1 Dearborn u. Dearborn, 15 Mass. « Smith v. Stewart, 6 Johns. 34; 1 316,- bat see Burr i>. Atwood, 1 Salk.89; Salk. 86; Osborn v. Bank of U. S., 9 Crocker r. Hutchinson, 2 D. Chip. ( Vt.) Wheat. 738 ; Denton v. Noyes, 6 Johns. 117. 296. 2 Grosvenor v. Danforth, 16 Mass. 74. ' Howe's Pr. 37. 8 Anon. 8 Mass. 370 ; Jackson v. 89 Wheat. 738. See also Denton v. Burtis, 14 Johns. 391. Noyes, 6 Johns. 302; Smith v. Bow- 4 Gilbert v. Williams, 8 Mass. .'Jl. ditch, 7 Pick. 137. «- Gleason v. Dodd, 4 Met. 333. 176 ATTORNEYS. [CH. XIX. establishment of our courts, and no departure from it has been made in any State of the Union." The rule that the authority of an attorney shall be pre- sumed, and his acts be binding on the person for whom he appears, though he was never authorized, has not been applied to acts and transactions out of court.^ No person is allowed to be employed, or to appear as counsel or attorney before a court, in a suit previously determined before himself as a judge or trial justice.^ § 8. All agreements made by an attorney with the opposite party, and entered on the record, are binding on. his client, if made in writing and filed in the case. As to iagreements not in writing, there may be doubts how far the courts will enforce them, or whether the performance must not be left to the honor of the attorney. In case of the death or change of the attorney who made them, his successor and the client would be without means of knowing them. If clearly proved, care would be taken that the other party should not suffer, and perhaps performance would be compelled ; but there is so much danger of mistake and disagreement, and attorneys so frequently differ with respect to them, that it should be adopted as an invariable rule, to put in writing all important agreements, and it would be a high degree of negligence to omit it.^ § 9. Liabilities of an Attorney. — An attorney is liable to his client only for want of care, skill, or integrity. Attorneys are liable to the ofBcers of court for the fees accruing on the performance of their official duties, and an attachment is the appropriate remedy to compel payment of them.* They are likewise responsible to sheriffs, coroners, &c., for their fees on the service of such writs and executions as they give them to execute." An attorney is presumed to engage only for ordinary skill, 1 See Hart v. Waterhouse, 1 Mass. * Caldwell v. Jackson, 7 Cranch, 276 ; 433; Herring v. PoUey, 8 Mass. 113. Anon., 2 Gall. 101. 2 Pub. St. c. 159, § 44. 5 Adams v. Hopkins, 5 Johns. 252 ; ^ Howe's Pr. 39 ; Union Bank of Ousterhout v. Day, 9 Johns. 114. Georgetown v. Geary, 5 Pet. 99 ; Gris- ' wold V. Lawrence, 1 Johns. 507. § 12.] ATTORNEYS. 177 care, and prudence, but by special contract he may become responsible for results.^ He is liable to his client for an abuse of his authority.^ If an attorney assumes to act for a person without his authority or consent, he is answerable for any damage there- by caused to such person.^ If an attorney unreasonably neglects to pay money col- lected by him for and in behalf of a client, when demanded by the client, he will forfeit to such client five times the law- ful interest of the money, from the time of the demand.* § 10. Change of Attorney. — " If either party shall change his attorney pending the suit, the name of the new attorney shall be substituted on the docket for that of the former at- torney, and notice thereof given to the adverse party; and until such notice of the change of an attorney, all notices given to or by the attorney first appointed shall be considered in all respects as notice to or from his client, except in cases in which hj law the notice is required to be given to the party personally." ^ § 11. Infants do not appear by Attorney. — There are Cer- tain classes of persons who are not permitted to sue or to de- fend personally or by attorney. Infants must sue by guardian or prochein ami, and any person may bring an action in the name of an infant as his next friend.^ They sue bj'- guardian when they are under guardianship, and by prochein ami when not. If the court neglect to appoint a guardian ad litem for an infant respondent in a petition for partition, the judgment for partition is not absolutely void. It is voidable by him and his privies in blood, but by no other persons.'^ Where a previous demand is necessary, as in case of a legacy, the action must necessarily be by guardian, and infants must always defend by guardian. § 12. Lien of Attorneys. — At common law, an attorney has a lien for his costs upon any papers of his client which ^ Leighton v. Sargent, 27 N. H. ^ Rules of S. J. Court of Mass., 468. No. 3 ; Rules of Superior Court, No. .'i. 2 Alton V. Gilmanton, 2 N. H. 521. « Miles w. Boyden,3 Pick. 213 ; Smith « Smith V. Bowditeh, 7 Pick. 138. v. Floyd, 1 Pick. 275. * Pub. St. c. 159, § 43. ' Austia v. Trustees, &c., 8 Met. 196. 12 178 ATTOENEYS. [CH. XIX. may come into his hands. ^ And this is not confined to any particular case, but extends to his whole account.^ An attorney has, also, a lien for his costs upon the judg- ment recovered by his client,^ or on an award in favor of his client,* in a cause in which the attorney was employed, even although the client had previously become a bankrupt.^ This lien, however, is not a general one. So, also, if money belonging to his client come to the attor- ney's hands, he may retain so much of it as will satisfy his costs ; ^ or he may stop it in transitu, by giving notice to the opposite party not to pay it until his claim for costs be satis- fied, and then moving the court to have the amount of his costs paid to him in the first instance.'^ And if the opposite party, after notice of the attorney's lien, pay over the money to the client, he is still liable to the attorney for the amount of his lien.^ If, however, the opposite party make a bona fide compromise of the suit, without notice of the lien, he cannot be compelled to pay the attorney his costs.^ But the attor- ney, in such a case, shall not be prejudiced by any collusive release given by his client.^" If the defendant, after action brought, pay the debt to the plaintiff, without the knowledge of the attorney, and without discharging the costs, it seems that the attorney has a right to proceed in the action for the recovery of them.^^ And if a plaintiff collude with the defendant's bail and attorney, to de- prive the plaintiff's attorney of his costs, by settling the debt and accepting a part payment, without his intervention, it seems that he may proceed against the bail, in order to re- cover such costs.^2 But if the plaintiff and defendant collu- > Hughes V. Mayre, 3 T. R. 275 ; 1 Wilkins v. Carmichael, Doug. 104. Mitchell V. Oldfield, 4 T. R. 123. ' Read v. Dapper, 6 T. R. 361 ; 2 Steyenson i;. Blakelock, 1 Man. & Welsh v. Hole, Doug. 238. Sel. 535 ; Lambert v. Buckmaster, 2 ' Chapman v. Haw, 1 Tannt. 341 ; Barn. & Cress. 616. Pinder v. Morris, 3 Caines, 165. 8 Tnrwin i;. Gibson, 3 Atk. 720 ; w Ormerod v. Tate, 1 East, 464. Middleton v. Hill, 1 Man. & Sel. 240 ; " Toms «. Powell, 6 Esp. 40 ; s. c. Randle v. Fuller, 6 T. R. 456 ; Glaister 7 East, 536 ; but see Charlwood v. Ber- V. Hewer, 8 T. R. 69. ridge, 1 Esp. 345 ; Martin v. Francis, * Ormerod v. Tate, 1 East, 464. 1 Chitty, 241 ; B. c. 2 Barn. & Aid. 402. s Griffin v. Eyles, 1 H. Bl. 122. " Swain v. Senate, 5 Bos. & Pull. • Welsh II. Hole, Doug. 238. 99. § 12.] ATTORNEYS. 179 sively settle the debt and costs upon an execution, in order to defraud the plaintiffs attorney of his costs, the latter can- not sue out another execution upon the same judgment, to levy his costs, but must apply to the court.^ The lien of an attorney upon the judgment does not attach until judgment is rendered,^ and only in favor of one who is attorney when judgment is rendered.^ The lien applies to an award of arbitrators.* The attorney's lien extends only to the net balance due, after the charges of the opposite party in that suit are de- ducted, and does not affect the equitable right of set-off be- tween the parties, and, therefore, if in the same action in which the plaintiff recovers damages the defendant recovers costs, the court will allow one to be set off against the other, without regard to the attorney's lien.^ Have these principles of the common law been adopted in this State ? In the case of Getchell v. Clark ^ it is held that at common law an attorney has no lien in this State on a cause for his fees or disbursements either before or after judgment. The correctness of this decision is questioned in White v. Harlow.^ The court say : " How far the law giving an attorney a lien upon the papers in his hands for fees and disbursements has been adopted in this Commonwealth is doubtless an open question." The court did not decide the question. In Simmons v. Almy,^ Colt, J., says: "At common law the attorney has no lien upon the cause for his fees either before or after judgment," and cites as authority the case of Getchell V. Clark. In the same opinion he says : " The law which gives an attorney a lien, in some cases, upon the papers of his client in his hand for fees and disbursements, if recog- nized as prevailing in this commonwealth, has no application 1 Graves v. Eades, 5 Taunt. 429; see Howell ti. Harding, 8 East, 362; 8. c. 1 Marsh. 113. 1 Arch. Pr. 39, and cases there cited. 2 Hobson V. Watson, 34 Me. 20; 65 Mass. 309. See Baker v. Cook, Yontig V. Dearborn, 27 N. H. 331. 11 Mass. 236. 8 Wells V. Hatch, 43 N. H. 246. ' 5 Gray, 463, 465. * Hutchins v. Howard, 15 Vt. 544. « 103 Mass. 35. « Schoole V. Noble, 1 H. Bl. 23 ; and 180 ATTOBNEYS. [CH. XIX. here." He cites the case of White v. Harlow, here cited. The question does not appear to have since come before the court for consideration. The statutes provide that " an attorney lawfully possessed of an execution, or who has prosecuted a suit to final judg- ment in favor of his client, shall have a lien thereon for the amount of his fees and disbursements in the cause ; but this shall not prevent the payment of the execution or judgment to the judgment creditor without notice of the lien." ^ This statute is a re-enactment of Revised Statutes, c. 88, § 28, and of General Statutes, c. 121, § 3, under which it is held that an attorney, lawfully possessed of an execution in favor of his client, may enforce the hen thereon given by this statute for his fees and disbursements in the cause, by action on the judgment, in the name of his client. § 13. In case of the death or dismissal of an attorney prose- cuting or defending a suit, another may enter his appearance upon the docket, without any formal motion to the court. By the practice in Massachusetts, any party may dismiss his attorney at pleasure, without application to the court. The name of the new attorney should be entered on the dockbt.2 If the attorney so dismissed should persist in appear- ing, and keep his name upon the docket, the court, on appli- cation, would order him to withdraw. The attorney newly appointed must take notice, at his peril, of the rules to which the former attorney was liable, and is bound by his lawful agreements.^ § 14. Removal of Attorneys. — It is provided by statute that an attorney may be removed by the Supreme Judicial Court or Superior Court, for any deceit, malpractice, or other gross misconduct, and shall also be liable in damages to the party injured thereby, and to such other punishment as may be provided by law; and the expenses and costs of the inquiry and proceedings in any court for the removal of an attorney shall be paid as in criminal prosecutions in the same courts.* In a regular complaint against an attorney, the charges 1 Pub. St. c. 159, § 42. s Howe's Pr. 48. 2 Rule 3 of S. J. Court. 4 Pub. St. c. 159, § 39. § 15.] ATTOENEYS. 181 made must be sworn to, unless the attorney waive this requi- sition, which he may do. This is not the practice, however, when the complaint comes from the bar. But the testimony, in all cases, ought to be given under oath.i When an attor- ney is charged by affidavit with any fraud or malpractice, or with any conduct rendering him unfit for the profession, the court, on motion, will order him to answer the matters con- tained in the affidavit ; and, in general, if he deny the facts contained in the affidavit, the court will dismiss the com- plaint.^ But in a case where an attorney who had been required to answer to an affidavit swore to an incredible story in his exculpation, the court granted an attachment against him, notwithstanding his positive denial of the mal- practice charged.^ It is not usual for the court to interfere in a summary way, for a mere breach of promise, where there is nothing crim- inal ; * nor on account of mere negligence or unskilfulness on the part of an attorney,^ except it be very gross, nor where his misconduct is not connected with his profession.^ But if his misconduct has been very aggravated, as if he has been convicted of felony, or has committed any offence which renders him unfit to be continued as an attorney, the court will order his name to be stricken from the roll.'^ The doings of the Superior Court removing an attorney from practice cannot be revised or corrected, after judgment, by the Supreme Judicial Court, on a writ of certiorari.^ § 15. Parties may manage, prosecute, or defend their O'vrn suits personally, and by such counsel or attorneys as they may engage ; but no more than two persons for each party shall, without permission of the court, be allowed to manage any case therein.* 1 Ex parte Burr, 9 Wheat. 529 ; » Say, 50, 169. Howe's Pr. 43. ' Ex parte Brounsall, Cowp. 829 ; 2 Bae. Abr. Attorney, H. 2 ; 1 Arch. 2 Black. 991 ; The King v. Southerton, Pr. 30, 32. 6 East, 143. 3 Crossley, Attorney, 6 T. R. 701. ^ Randall, Pet'r, 11 Allen, 472. * Beal V. Langstaff,"2 Wils. 371. » Pub. St. c. 159, § 40. 6 Pitt V. Yalden,4 Burr. 2060; Loffl, 188. 182 JUDICIAL WEITS. [CH. XX. CHAPTER XX. JUDICIAL WEITS. § 1. A judicial writ is grounded on what has passed in the court, and is issued to enforce its orders and judgments. It may be issued after final judgment, or during the proceedings of a cause. There are various kinds of such writs in use in this State, namely : — 1. Writ of execution. 2. Writ of possession. 3. Writ of return. 4. Writ of reprisal, or writ of withernam. 5. Writ of restitution. 6. Writ of supersedeas. 7. Writ of injunction. 8. Writ of prohibition. 9. Writ of mandamus. 10. Writ of certiorari. 11. Writ of quo warranto. 12. Writ of ne exeat regno. 13. Writ of protection. The forms and requisites of these writs are yarious, adapted to the variety of uses for which they are designed. It is in- tended in this chapter to describe them, and to state, to some extent, the use of each, and by what means each can be obtained. § 2. Executions. — An execution is a judicial writ. The most common form of execution is that which is issued in personal actions, in which money only is demanded, and which are commenced by the writ of original summons. § 6.] JUDICIAL WEITS. 183 capias, capias and attachment, or summons and attachment. It was provided for by Statute of 1784, c. 28, and the form of it has not been changed. The Public Statutes provide that " the forms of execution shall be the same as heretofore established by law, and the usage and practice of the courts," and " that alterations in the forms may from time to time be made, or allowed by the courts, when necessary to adapt them to changes in the law, or for other sufficient reasons," subject to the final control of the Supreme Judicial Court, which may, by general rules, regulate such changes in all the courts.^ § 3. Form of Execution. — An execution for a certain sum as damages, and a certain sum as costs, is issued under the seal of the court, and the test of the Chief Justice thereof, and signed by its clerk. It is directed to the sheriff of the county or his deputies, or to some other officer competent to serve it, and commands them that, of the goods, chattels, or lands of the debtor within their precinct, they cause to be paid and satisfied to the creditor the sums named in the exe- cution, and make return of the doings on the execution to the court. The forms of other executions are adapted to the judgments on which they are issued. § 4. An execution must strictly pursue the judgment on which it issues as to the parties, the thing recovered, and, if that be a debt or damages, the amount thereof. Therefore, if there be two or more judgment creditors, and one of them die after judgment, and before execution issues, the execution may still be issued in the name of all, without regarding the death of any one.^ But the court may direct it to issue in the name of the survivors alone.^ § 5. In trustee process, when judgment is rendered against the principal defendant, and the trustee is charged, the exe- cution must run against the debtor, and against his goods, effects, and credits in the hands of the trustee. § 6. lixecutions against persons privileged from arrest should be altered so as not to run against their bodies. In actions 1 Pub. St. c. 171, § 20, 21. " Bowdoin v. Jordan, 9 Mass. 160. ^ Hamilton v. Lyman, 9 Mass. 15. 184 J JUDICUL WRITS. [CH. XX. of replevin, when judgment is rendered for the defendant for a return of the property replevied, and for damages and costs, or for costs, a writ of return is issued, which is in the nature of an execution.^ When judgment is recovered against an executor or admin- istrator for costs only, the execution shall be awarded against his body, goods, and estate, as if it were for his own debt. When the judgment is for debt or damages, and costs, an execution for the debt or damages will be awarded against the goods and estate of the deceased in the hands of the executor or administrator, and another execution for the costs against the goods, estate, and body of the executor or administrator, as if it were for his own debt.^ § 7. Execution against Absent Defendant. — When judg- ment in a personal action is rendered, upon the default of a defendant who is out of the State, or whose residence is unknown, the plaintiff cannot ;take out execution thereon within one year thereafter, unless he first gives bond to the defendant, with one or more sufficient sureties, in a sum equal to double the amount recovered, with condition to repay the amount so recovered if the judgment is reversed, or so much of the amount as shall be recovered back upon a review to be brought by the original defendant at any time within one year after the original judgment. The bond must be deposited with the clerk of the court for the use of the defendant, and the clerk is required to decide on the sufficiency of the sureties, saving a right of appeal from his decision to any justice of the court in which the judgment is rendered.^ § 8. Execution in Case of Death of either Party. — If a per- son against whom judgment is recovered should die before execution issues, no execution should be issued.* But if a judgment creditor should die after judgment, his representa- tives may take out execution in his name.^ § 9. When Returnable. — All executions must be made re- I Pub. St. o. 184, § 24, 25. * Hildreth v. Thompson, 16 Mass. " Pub. St. c. 166, § 7, 8. 191. « Pub. St. c. 164, § 8, 9. 6 Howe's Pr. 277. § 12.] JUDICIAL WRITS. 185 turnable in sixty days from their date,^ and may be returned at any reasonable and convenient time on the sixtieth day.^ § 10. Mode of obtaining Execution. — If the party entitled to an execution be the plaintiff, then, having previously caused his damages to be assessed, and his costs to be taxed, he simply applies to the clerk within the time allowed for issuing an execution, and, upon furnishing him with the amount of damages and filing the necessary papers, he will be entitled to his execution as a matter of course. If the prevailing party be the defendant, he has only to tax his costs, unless, upon set-off pleaded, he has obtained judgment for any excess, in which case he furnishes the amount of his damages and files the necessary papers in the same manner as if he were the plaintiff.^ § 11. AUas or Pluries Execution. — If either party, who has taken out an original execution, desire an aliuB or pluries, he must produce to the clerk the previous execution, with a return upon it, either by the party or his attorney, " that it has never been in the hands of an officer, and is therefore returned," either " wholly unsatisfied," or "satisfied in part only," according to the fact ; or with the officer's return thereon "that it is wholly unsatisfied" or "satisfied in part only," according to the fact. Upon producing this, an alias or pluries execution will be issued for the whole amount, or for what remains unpaid. The previous execution must be thus returned to the clerk before a new one can be taken out, because a party can have but one execution at a time against the same party in the same case, though this is different in the English practice.* § 12. 'When Execution may issue. — No original execution can lawfully be issued, unless within one year after the party is entitled to sue out the same ; and no alias or other succes- sive execution can be issued afterwards, unless sued out within five years after the return-day of that which preceded it. If a judgment remains unsatisfied after the expiration of 1 Pub. St. c. 171, § 22. 8 2 Tidd's Pr.994, 996; Howe's Pr. a Bull V. Clarke, 2 Met. 587, 590. 275, 276. * lb. 186 JUDICIAL WEITS. [CH. XX. the time for taking out execution thereon, the creditor may have a scire facias to obtain a new execution, or he may at any time after the judgment have an action of contract there- on,i although the execution is not returned.^ § 13. When Taxation of Costs is appealed from. — If a party against whom judgment is rendered be present at the taxa- tion of the costs by the clerk, as he may be, and appeal there- from, the clerk cannot issue execution until the question has been settled by a judge according to usage.^ No execution can lawfully be issued within twenty-four hours after the entry of judgment.* In computing the time, Sunday should be excluded.^ § 14. Direction of Executions. — The same rules which have been stated as to the direction of original writs to officers apply to the direction of executions. See ante, p. 20. And though executions are generally directed to the same officers who served the writ in the case, yet they need not be ; but, without reference to the officer who served the writ, they may be directed to officers qualified to serve them, in any or all the counties or towns of the State where service is required to be made. So an alias or pluries execution may be directed without any reference to the preceding execution.^ § 15. Writ of Possession. — In Jackson on Real Actions, p. 193, the author says : " The Statute of 1874, c. 28, gives the form of a writ of habere facias possessionem, in which it is re- cited that ' A. B. has recovered judgment for his title and possession of and in a certain messuage,' &c. ; and there is no other form of execution prescribed in the statute for the ease of recovery of land. ... As the statute does not expressly prohibit any other form of execution, there seems to be no objection to awarding the judgment and execution in writs of entry in the forms prescribed by the common law." No other form of execution is given by the Public Statutes for the recovery of lands. It may issue in all actions com- 1 Pub. St. c. 171, § 16, 17. 4 Pub. St. c. 171, § 15. 2 Linton v. Hurley, 114 Mass. 76. ^ Penniman v. Cole, 8 Met. 496. 3 Winslow V. Hathaway, I Pick. 211. « Howe's Pr. 278. § 20.] JUDICIAL WEITS. 187 menced by a writ of entry, in whioh the plaintiff recovers judgment against the defendant, for the possession of the lands demanded. § 16. A writ of return is issued in favor of a defendant in replevin for a return of the property replevied.^ See chapter 43 on Replevin. § 17. A writ of reprisal or writ of withernam is a writ issued in favor of a defendant in replevin, after a writ of return has been issued and returned.^ See chapter 43 on Replevin. § 18. A writ of restitution is issued on a judgment in favor of the plaintiff in the summary process to obtain possession of land.^ See chapter 26, on that subject. § 19. Writ of Supersedeas. — This is a common-law writ. Its use is authorized by statute to supersede an execution which has been issued on a judgment, which the defendant seeks to review, and has filed his petition therefor.* The writ should be directed to the officer having the exe- cution, if it has been delivered to one, and should contain an order that all proceedings on the execution be stayed. See ante, chapter on Review, p. 41. § 20. Writ of Injunction. — The nature and purpose of this writ is to command a person to do or refrain from doing some act. It may be temporary or perpetual, as the case may re- quire. The command in the writ should be clearly and fully stated. The writ may be issued by the Superior Court to restrain a person from moving a building in a public street, or way in a town without written permission from the select- men or road commissioners,^ to stay or prevent a nuisance affecting the public health in cases named in the statutes,^ and to restrain the further use of a steam-engine when used con- trary to the provisions of law.'^ It may be issued by the court having jurisdiction of the matter to stay waste during the pendency of a real action,^ and for such purpose as the case requires, while a writ of audita querela is pending,^ and 1 Pub. St. c. 184, § 26. 6 Pub. St. c. 80, § 26 ; c. 180, § 5. 2 Pub. St. c. 184, § 25. ' Pub. St. c. 102, § 40-44. 8 Pub. St. c. 175, § 5. 8 Pub. St. u. 179, § 12. * Pub. St. u. 187, § 39. 9 Pub. St. o. 186, § 6. s Pub. St. u. 53, § 17. 188 _ JtODIOIAL WEITS. [CH. XX. also pending an application for a writ of certiorari, or while the writ is pending.^ The Supreme Judicial Court and also the Superior Court, each sitting as a 'court of equity, have power to issue writs of injunction in a great variety of cases. § 21. Writ of Prohibition. — The Writ of prohibition is a common-law writ, and of very ancient origin. It is issued by a court of competent jurisdiction to an inferior court, to prohibit the latter from taking judicial cognizance of cases not within its jurisdiction. It may be issued by the Supreme Judicial Court ^ on petition therefor. The first reported case in Massachusetts is Washburn V. Phillips,^ decided in 1841. This is a petition for a writ of prohibition against the president of a court-martial. In giving the opinion of the court, dismissing the petition. Chief Justice Shaw said : " The application to this court for a writ of prohibition is certainly one of rather new impression, and seems to have been rarely resort'ed to either in this Common- wealth or in the United States. . . . Though the power of issuing the writ is conferred by statute, yet the statute does not define the cases or the modes in which this power is to be exercised. For this, as in many other cases of powers given by statute, we are referred to that great repository of rules and precedents, the common law." § 22. Where may be issued and heard. — The petition for the writ may be heard and the writ may be issued in any county, and questions of law may be reserved for the full court.* § 23. Writ of Mandamus. — The Supreme Judicial Court of Massachusetts is authorized by statute to issue writs of man- damus. The powers thus conferred are not defined by stat- ute, but the court is empowered to issue writs of mandamus in cases warranted by the principles and usages of the com- mon law, except so far as that power may be modified, re- stricted, or enlarged by the statutes of the Commonwealth.^ 1 Pnb. St. c. 186, § 12. 4 Day v. Aldermen of Springfield, 2 Pab. St. c. 150, § 3. 102 Mass. 310; Pub. St. c 186, § 13. 8 2 Met. 297. 5 Pub. St c. 150, § 3. § 25.] JUDICIAL WEITS. 189 The Supreme Court of the United States is empowered, by act of Congress, to issue writs of mandamus, in cases war- ranted by the principles and usages of law, to any courts appointed under the authority of the United States, or to persons holding office under the authority of the United States, when a State, or an ambassador or other public minis- ter, or a consul or vice-consul, is a party .^ And the Circuit Courts of the United States, for the purposes specified in an act of the Forty-third Congress, c. 95 (1875), have power by that act " to award the writ of mandamus according to the course of the common law, upon motion of the Attorney- General or the District Attorney of the United States, to any officer, to compel him to make the returns and perform the duties " required by that act. Blackstone terms it " a high prerogative writ, of most extensive remedial nature."^ It was originally, in England, a prerogative of the king, and proceeded from him. In the United States it does not retain its prerogative character. § 24. Mandamus an Action at Law. — It is well settled that a mandamus in modern practice is nothing more than an action at law between the parties, and is not now regarded as a pre- rogative writ.^ It is, however, the highest judicial writ known to our constitutions and laws. It is supposed to be founded on necessity, and issuable only when no other remedy is provided.* § 25. A writ of mandamus is defined to be a command is- sued by a court, directed to any person, corporation, or in- ferior court, requiring them to do some particular thing therein specified, which appertains to their office or duty, and which the court has previously determined.^ It is not a writ of right, and is only to be granted at the discretion of the court. The question must always be, not merely whether it is within the power of the court to grant it, but whether, as a matter of sound judicial discretion, upon the special circum- stances of the case under consideration, it ought to be granted.^ 1 U. S. Kev. St. § 688. * 3 Bac. Abr. 536. 2 3 Bl. Com. 110. 6 3 Bl. Com. 110. 8 Kentucky v. Dennison, 24 How. 66. 6 Murray v. Stevens, 110 Mass. 95. 190 JUDICIAL WEITS. [CH. XX. § 26. Alternative ana Peremptory Mandamus. — Writs of man- damus are divided into two general classes or subdivisions, the alternative writ and the peremptory writ. The first is a command of the court that the person to whom the writ is directed shall perform some particular act therein specified, or show cause to the contrary ; the second is the final order of the court, commanding peremptorily the performance of the specified act.^ Forms of each of these writs will be given in the chapter on Forms. § 27. What the Petition should state. — The petition should set forth fully all the facts necessary to show the power of the court to issue the mandamus prayed for, and the allega- tions should be sworn to by the petitioner or complainant, or supported by affidavits of others.^ § 28. Rule or Notice. — On such petition, a rule may issue to the party respondent to show cause why a mandamus should not issue.^ This rule is merely a notice to the re- spondent, and is not required to be under the seal of the court.* It must describe the character of the petition, and name a time for the respondent to appear. It must be served on the respondent. § 29. Service of Notice. — No statute prescribes in what manner the service shall be made. It must therefore, be' served in such manner as the court shall direct, or, in the absence of such direction, it must be reasonable and proper, and such as shall be deemed sufficient by the court. The same rule applies to a service of an alternative mandamus. As the issuing of the writ is discretionary, the court will not issue it unless satisfied that the notice or alternative writ has been properly served on the respondent. § 30. Notice to new parties. — The court may mate rules, on a petition for the writ, or upon and after the issuing of the first writ, calling upon any person having or claiming a right or interest in the subject-matter, other than the party to whom 1 3 Bl. Com. 111. « Strong, Pet'r, 20 Pick. 498; Kim- 2 The King v. Bishop of Oxford, 7 ball v. Morris, Judge, 2 Met. .573. East, 345. 4 Taylor, Pet'r, v. Henry, 2 Pick. 397. § 33.] JtTDICIAL -WRITS. 191 the writ is prayed to be or has been directed, to show cause against the issuing of the writ. If such person appears, he may be heard in such manner as the court may direct, and in proper cases may be allowed to frame and sign the return to the first writ, and to stand as the real party in the pro- ceedings.^ § 31. Appearance of Respondent. — He has a right to ap- pear or not. If he does not appear, a writ of mandamus will issue.^ If he does appear, he may file his answer to the petition, and the parties may be heard on the petition and answer, and the mandamus granted or refused as the court may determine. By agreement between the parties, the respondent may ap- pear and answer to the petition for a mandamus without the issue of any rule or notice, and proceeding had as if notice had been duly issued and served on him.^ § 82. When alternative writ may issue. — If, upon service of notice on him, the respondent does not appear, the court may issue an alternative or peremptory mandamus.^ In such case an alternative mandamus is usually issued.® The court may also issue an alternative writ upon the original petition, with- out other notice.^ In either case, when an alternative writ is issued and served, the respondent must make a return or answer to it, or, in de- fault thereof, a peremptory writ may issue. § 33. Respondent's return and pleadings. — The alternative writ is in the nature of a declaration. The return of the respondent is his plea or answer to the writ, and must con- tain a full and certain answer to all the averments made in the petition. This may be pleaded to, or traversed by the complainant, and the respondent may reply, take issue, or demur, and the same proceedings may be had as if an action had been brought for making a false return. The general 1 Pnb. St. c. 186, § 15. * People v. Throop, 12 Wend. 183. 2 Taylor v. Henry, 2 Pick. 398. " Strong, Pet'r, 20 Pick. 498. s Life & Tire Ins. Co. of New York » Springfield «. County Com'rs, 10 V. Adams, 9 Pet. 571-573. Pick. 59. 192 JUDICIAL -WRITS. [CH. XX. rules and principles of pleading at common law are applicable in sucli cases.^ The pleadings may proceed till an issue either of law or fact is made up, and the issue thus found is tried lite other similar issues at common law. In these proceedings, amendments may be allowed to either party, ^ and exceptions taken, and questions of law reserved, as in other proceedings at common law.^ If, on final hearing, the court shall be of opinion that it is within its power to issue the peremptory mandamus, and that, as a matter of sound judicial discretion, it ought to be granted, the order will be that the writ issue. If otherwise, the order will be that the mandamus is refused. § 34. "When Mandamus will be granted. — The writ of man- damus is an extraordinary remedy, and is only to be issued where the party has no other specific remedy ; for that reason, the court refused a mandamus to a bank to transfer stock, be- cause the party might recover the value in an action of assumpsit.* In the case of a clear public right, if it be im- portant to prevent great and immediate public damage or in- convenience to many persons, as in case of a public bridge or other work being in a very dangerous state, and requiring repair or support, if there be no doubt respecting the obliga- tion to repair, a mandamus may be issued, although there be another remedy by indictment. Yet, if the obligation be doubtful, the court will refuse the writ, and leave the prose- cutor to proceed by indictment. It is a general rule that there must be not only a legal right, but also the absence of any other specific legal remedy, to induce the court to issue a mandamus.^ § 35. For Form of the Writ, see chapter on Forms. — It must conform to the facts of the case in which it is issued. § 36. Judgment. — If the party suing the writ maintains the issue on his part, his damages may be assessed, and a 1 Pub. St. c. 186, § 14; Lunt v. Da- ^ American Railwaj Frog Co. v. vidson, 104 Mass. 501. Haven, 101 Mass. 398. 2 Kimball v. Morris, Judge, 2 Met. * 1 Chitty's Gen. Pr. 790 ; Murray v. 573; Springfield v. County Com'rs, 10 Stevens, 110 Mass. 95. Pick. 59. 6 1 Chitty's Gen. Pr. 791. § 39.] JUDICIAL WRITS. 193 judgment rendered that he recover the same with costs, and that a peremptory writ of mandamus be granted ; otherwise the party making the return will recover his costs.^ A violation of a peremptory mandamus is punished as a contempt of court.^ § 37. Writ of Certiorari. — Certiorari is a common-law pro- cess. It is not a writ of right, but is granted or refused at the discretion of the court, on application and hearing of the parties.^ It is a judicial writ issued by a superior to an inferior court, commanding that a record of a cause in such inferior court be certified and brought before such superior court. A form of the writ is given in the chapter on Forms. § 38. When it lies. — It lies only to correct the errors and restrain the excesses of jurisdiction of inferior courts or officers acting judicially.* It does not lie to the probate court.^ It does not lie to revise a decision of a question of fact upon the evidence introduced at the hearing of the inferior court.® It lies to quash erroneous proceedings of county commissioners in laying out or altering highways ; ^ to correct their proceed- ings in matters of law in applications to abate a tax ; ^ to revise the proceedings of the mayor and aldermen of Boston, as to laying out or altering streets, or granting licenses for a ferry ; ^ and the proceedings of a city council in laying out streets, where the charter vests the power of laying out streets in such council.^" § 39. Proceedings on Petition. — "A petition for a writ of certiorari may be presented to a justice of the Supreme Judi- cial Court in any county, in term time or vacation, and such justice may, upon due notice to all parties, hear and determine 1 Pnb. St. c. 186, § 14. ' Marblehead v. County Commis- 2 The King v. Edyrean, 3 T. R. 352 ; sioners of Essex, 5 Gray, 451 ; New The King v. Mayor of Fowey, 5 Dow. & Marlborough v. Berkshire, 9 Met. 423. E. 614; Commonwealth v. Taylor, 36 See 2 Allen, 463 ; 5 Gray, 451. Pa. St. 263. ^ Gibbs v. County Commissioners, 8 Dowd V. Stimpson, 2 Mass. 445. 19 Pick. 298. 1 Locke V. Lexington, 122 Mass. 290. ^ Parks v. Boston, 8 Pick. 218 ; Fay's 6 Peters «. Peters, 8 Cush. 529. Case, 15 Pick. 243. 6 Parmington River Water Power Co. 1" Dwight v. Springfield, 4 Gray, V. County Commissioners, 112 Mass. 212. 107. 13 194 JODICIAl WRITS. [CH. XX. the same, or may reserve questions of law arising thereon, upon exceptions or otherwise, for the determination of the full court, which may hear and determine the same at any time in any county as justice shall seem to it to require. If on such hearing it is ordered that the writ issue, it may be issued from the clerk's office in any county, and be made returnable as the court shall direct.^ § 40. Decree. — " When the proceedings of any tribunal are brought up by a writ of certiorari, the court may quash or affirm such proceedings, or enter such judgment as the court below should have rendered, or may make such order, judg- ment, or decree in the premises as law and justice may require. " Upon a petition for a writ of certiorari, and also on the final adjudication when such writ is granted, the court may, in its discretion, award costs against any party who appears to maintain or to object to the proceeding in question." ^ § 41. Injunction may be issued. — "At any time after the issuing of a writ of certiorari, or pending an application there- for, the court or a justice thereof may, in term time or vaca- tion, issue any writ of injunction which the nature of the case and justice and equity may require." ^ § 42. Power to grant a 'Writ of Certiorari is Discretionary. — A petition for a writ of certiorari is addressed to the judi- cial discretion of the court, and is not granted for, formal and technical errors only, when no real injustice has been done.* § 43. Limitation of Action. — No writ of certiorari can law- fully be issued unless application is made therefor within six years next after the proceeding complained of.^ § 44. The whole Record is required. — If a certiorari issue requiring only a part of the record of the cause to be certified, the court will quash the writ as having issued improvidently.® If an incomplete return be made by the inferior court, the petitioner may suggest a diminution of the record, and a new 1 Pub. St. c. 186, § 8. * Ex parte Miller, 4 Mass. 565. 2 Pub. St. c. 186, § 9, 10. 6 Pub. St. c. 186, § 11. » Pub. St. c. 186, § 12. » Thatcher v. Miller, 11 Mass. 413. § 46.] JUDICIAL WKITS. 195 certiorari will issue.^ Where the several parts of the pro- ceedings in the case are so connected together as to make the validity and force of one part to depend on the other, the whole must be quashed or affirmed. But the court may quash the proceedings in part, and affirm the residue, where the part quashed is independent and unconnected with the part affirmed .2 § 45. Writ of Quo Warranto. — The ancient writ of quo warranto was " a writ of right for the king against him who claimed or usurped an office, franchise, or liberty, to inquire by what authority {quo warranto') he supported his claim, in order to determine the tight;" ^ This writ is the origin of the modern process of information in the nature of a quo war- ranto. Mr. Dane says, that " for some time the writ of quo warranto has been but little in use in England, and never much in this country, having given place to the information in the nature of a quo warranto." ^ The Massachusetts re- ports contain no case in which it appears that the writ was ever issued in this State. § 46. Information in the nature of a quo warranto is the process now in use. The cases in which it may be used, and the pleadings and proceedings in such cases, are determined by the principles and usages of the common law, except when otherwise provided by statute. The earliest reported case in Massachusetts is that of the Commonwealth v. Athern,^ in 1807, in which a motion was filed for a rule of court against the respondent, to show cause why an information in the nature of a quo warranto should not be awarded against him for claiming to hold, the office of town clerk of Tisbury in Dukes County. In case of the Attorney-General v. Salem, Morton, J., said : "An information in the nature of quo warranto has, in modem practice, taken the place of the ancient writ of quo war- ranto, which was in the nature of a writ of right for the king 1 Commonwealth v. New Milford, 4 » 3 Bl. Com. 262. Mass. 446. * 6 Dane's Abr. c. 186, art. 12. 2 Commonwealth v. Blue Hill Turn- ^ 3 Mass. 285. pike Corp., 5 Mass. 420. 196 JUDICIAL WEITS. [CH. XX. against him who claims or usurps any office, franchise, or liberty, to inquire by what authority he supports his claim, in order to determine the right." ^ " Such information lies when the party proceeded against has usurped some office, franchise, or liberty to which he has no right ; or when, having an office or franchise, he has, by non-user or abuse, forfeited it, and the information is brought for the purpose of enforcing such forfeiture. But it is not the appropriate remedy when the object is to enforce the performance of duties imposed by law." ^ § 47. Who may apply for the Writ. — Any person whose private right or interest has been injuted or is put in hazard by the exercise by a private corporation, or by persons claim- ing to be a private corporation, of a franchise or privilege not conferred by law, whether such person is a member of such corporation or not, may apply to the Supreme Judicial Court for leave to file an information in the nature of a quo war- ranto J^ § 48. The application may be made and heard at a law or jury term in any county where the court is in session, or before a justice of the court in vacation.* § 49. Proceedings on such Application. — The court will take order for a summary hearing of the parties; and if there appears probable cause to believe that the party com- plained of has exercised a franchise or privilege not conferred by law, and that thereby the private right or interest of the complainant has been injured or is put in hazard, leave will be granted to file the information. The information must be filed in the county where the defendant has its principal place of business. A copy of the information, with an order of notice returnable and to be served when and as the court may direct, shall be served on the defendant and on the attorney-general.^ § 50. Injunction may issue. — The court, when leave is given to file such information, or at any time before final 1 103 Mass. 139. * Pub. St. c. 186, § 18. = 103 Mass. 138, 139. 6 Pnb. St. t. 186, § 19, 20. 3 Pub. St. t. 186, § 17. § 51.] JUDICIAL WHITS. 197 judgment, may issue a writ of injunction restraining the defendant and its managers, servants, and agents from exer- cising the franchise or privilege in question until the further order of the court.^ § 51. Powers of the Attorney-General. — It is provided by statute that the attorney-general, when he has good reason to believe there has been a usurpation of a franchise or privilege not conferred by law, may intervene, and demand a judgment of fine and forfeiture. In such case he shall have the control of all future proceedings, and the court shall enter such judg- ment as the principles of the common law may require, but the complainant shall no longer be responsible for costs. These provisions of the statutes are in substance the same as the common law in relation to that subject, except the pro- vision allowing private persons to apply for leave to file an information against a corporation, for the causes there named. They do not, however, take away the common-law jurisdic- tion of the courts of the State, or the powers of the attorney- general. On the contrary, the statutes expressly declare that nothing therein contained " shall affect the duty of the at- torney-general to proceed ex officio in all cases in which he might before so proceed by law."^ Neither do these statutes deprive any person of the right to file an information respecting the election or admission of an officer or member of a corporation.^ The last section of the statutes above referred to is the same as the provision of General Statutes, c. 145, sect. 24. In case of Goddard v. Smithett,* G. J. Shaw, referring to this provision of the statute, said : " We are not aware that it was ever in the power of an individual at common law, on his own authority and of his own will, without the interven- tion of any prosecuting officer, or without the order of court, to file an information in the nature of a quo warranto re- specting the admission or election of an officer or member of a corporation. We suppose, therefore, that the section should read 'to deprive any individual of the right to 1 Pub. St. c. 186, § 21. » Pub. St. c. 186, § 25. ' Pub. St. t. 186, § 22. * 3 Gray, 124. 198 JUDICIAL WBITS. [CH. XX. apply to a competent jurisdiction to grant him an informa- tion.'"! § 62. Pleadings in Quo Warranto. — At common law an in- formation must be filed by the attorney-general or State's at- torney. It must set forth, with all the exactness required by the rules of pleading in civil actions, all the facts relied on, and which will warrant the court in issuing the process prayed for.2 Notice of the information must be given to the defend- ant, who may appear and answer to the information, to which answer the plaintiff may reply. The general rules of plead- ing and of amendments in civil actions are as applicable to these proceedings as on petition for a mandamus, as stated on page 191.^ The case is tried as an ordinary action at law. § 53. The judgment must be framed to conform to the na- ture of the case. On an information in the nature of quo warranto against a person for usurping the office of judge of probate, the fol- lowing form of judgment was given, viz. : " It is considered by the court here, that the said Samuel Fowler, Esq., do not in any manner intermeddle or concern himself in and about the holding of, or exercising, the said office of judge of pro- bate of wiUs, and granting administration on the estates of persons deceased, in the said county of Hampden, in the said information specified, in virtue of the supposed commission by him mentioned in his plea in bar aforesaid ; but that the said Samuel Fowler, Esq., be absolutely forejudged and ex- cluded from holding or exercising the same office, and that the said Commonwealth recover costs taxed at." * § 54. Neglect or Refusal to obey. — If any person, without good reason, neglects or refuses to obey the order of the court in these proceedings, he wiU be deemed guilty of a contempt, and dealt with accordingly. § 65.' The forms of an information in the nature of quo war- ranto, and of the pleas therein, are not given by statutes or 1 3 Gray, 124. s People v. Clark, 4 Cow. 95. = People V. Middlesex Turnpike Co., « Commonwealth v. Fowler, 1 1 Mass. 23 Wend. 193. 339 ; Pub. St. u. 186, § 23, 24. § 57.] JtlDICIAL WEITS. 199 rules of court in Massachusetts. Such forms having been adopted by the Superior Court of Connecticut ^ are given in the chapter on Forms. § 56. ■Writ of Ne exeat Regno. — This, says Blackstone, is a prerogative writ, which is issued, as its name imports, to pre- vent a person from leaving the realm.^ The history and uses of the writ are quite fully stated in 2 Story's Eq. Jur. §§ 1465-1475. Mr. Justice Story says : " The writ of ne exeat regno is in use in America, where it is treated, not as a prerogative writ, but as a writ of right in the cases in which it is properly grantable. But, generally, the same limitations which are imposed as to the remedy in England exist in our present practice. In short, the writ and its attributes are almost entu-ely derived firom the English authorities and prac- tice." 3 § 57. statute Provisions as to it. — The Revised Statutes of the United States, § 717, provide that " writs of ne exeat may be granted by any justice of the Supreme Court in cases where they might be granted by the Supreme Court, and by any circuit justice or circuit judge in cases where they might be granted by the Circuit Court of which he is a judge. But no writ of ne exeat shall be granted unless a suit in equity is commenced, and satisfactory proof is made to the court or judge granting the same that the defendant designs quickly to depart from the United States." It is held in Massachusetts that the Supreme Judicial Court of the State has power to grant a writ of ne exeat in a proper case, according to the course of practice in Chancery.* No provision is made for this writ in the Statutes of Massa- chusetts. The power of our courts to issue it is wholly derived from the common law.® It can be issued only by a court having jurisdiction in matters in equity, and can in general be issued only when the claim upon the party going 1 Eules 249, 422. » 2 Story's Eq. Jur. § 1469. 2 1 Bl. Com. 137, 266 ; 2 Story's Eq. '■ Rice v. Hale, 5 Cush. 238. Jur. § 1465. ' ' 2 Story's Eq. Jur. § 1469. 200 JUDICIAL WEITS. [CH. XX. abroad is equitable.^ The exceptions to this rule stated by Mr. Justice Story are cases of alimony and actions of account. In cases of alimony, the writ will not be granted unless alimony has already been decreed, and then only to the extent of what is due.^ The equitable demand for which a writ of ne exeat will be issued must be certain, and actually payable, and not contingent.^ In Connecticut, in the case of Lyon v. Lyon,* a decree was made divorcing the plaintiff from the defendant, and granting to the plaintiff five thousand dollars as alimony. The plain- tiff, fearing that the defendant would leave the State, and thus evade process, presented to the court a petition for a writ of ne exeat, alleging that the defendant had refused to pay the alimony, and had spoken with contempt of the court and its order, and expressed a determination to disobey it, and had used language importing a purpose to go beyond its jurisdiction, to which statement the plaintiff made affidavit. Upon this petition, a 'Writ was issued, signed by the clerk, and directed to the sheriff, setting forth the substance of the petition. The writ directed the officer to cause the defendant to give a bond, with surety, in the sum of seven thousand dollars, conditioned that the defendant would not leave the State without permission of the court ; and that, if he should refuse to give such bond, to commit him to the common jail of the county until he should give such bond, or be discharged according to law. The bond was given, and afterward the alimony was paid. The cases in which a writ of ne exeat will be issued are given in 3 Daniell's Chancery Practice, §§ 1925 to 1935 ; and notes to Perkins's edition ; and in 2 Story's Eq. Jur., §§ 1465- 1475 ; and in Beames on Ne Exeat Regno. § 58. The application for a writ of ne exeat may be made by petition or motion, and supported by affidavit. No no- tice to the defendant is required before' issuing the writ.^ 1 3 Daniell's Ch. Pr. § 1925. s 2 Story's Eq. Jur. § 1474, and 2 2 Story's Eq. Jur. § 1471, and note 4. notes 3, 4. * 21 Conn. 199, 200, note a. 5 3 Daniell's Ch. Pr. § 1937. § 61. JUDICIAL WEITS. 201 The form of the writ will be found in the chapter on Forms.^ In modern practice the writ of ne exeat has become merely a process to hold the defendant to bail in cases where it may be issued.2 § 69. Jurisdiction. — "The doctrine of the early cases was, that if the demand were not exclusively of eqiiitable juris- diction, it could not have the protection of a ne exeat. But the rule at present is otherwise. It is now deemed sufBcient that equity have a concurrent jurisdiction of the subject with the courts of law. And the circumstance that bail may be had in those courts is no obstacle to the allowance of the writ." 3 § 60. Scire facias was orginally a judicial writ, and is so still in its general characteristics, but practically is used as an original writ. See ante, p. 44. § 61. Writ of Protection. — This writ is issued by a court to protect a person from arrest while attending court, or going to or returning from the court. It is a common-law writ. No provision for it is made by statute in Massachu- setts. By a rule of the Supreme Judicial Court and the ^ Superior Court,* provision is made as to its use. Such writ, however, is not necessary, and is no further useful than as it serves to give notice to the officer of the defendant's privilege, of which he is not otherwise bound to take notice ; ^ for if the defendant be entitled to, though he do not actually have, a writ of protection, upon being arrested, the court will discharge him from the arrest on motion, and order the bail-bond, if one has been given, to be cancelled.^ In the case of McNeil, it is held that if a person obtain a writ of protection who is not entitled to it, it would not avail 1 A form of a writ of ne exeat will also Porter v. Spencer, 2 Johns. Ch. K. 169, be found in 3 Daniell's Ch. Pr. § 1941 ; and cases there cited. in Beames on Ne Exeat ; and in Hind's * Rules of S. J. C, 15 ; Eules of S. Pr. 613 ; Rice v. Hale, 5 Gush. 242. C, 29. 2 Daniell's Ch. Pr. § 192.5, note 3. ^ VV. Bl. 1194. 8 Note to Beames on Ne Exeat Regno, « Ex parte McNeil, 3 Mass. 288. 33 ; Howden v. Rogers, 1 "Ves. & B. 129 ; 202 JUDICIAL WKITS. [CH. XX, him. It would seem, however, not to be prudent for an officer to arrest the person holding the writ of protection until the protection given by it should be in some manner withdrawn by the court, as an arrest in such case would probably subject the officer to punishment for a contempt of court. This privilege from arrest is a personal one, of which the party entitled may avail himself for his protection; but if he waive it, and submit to the arrest,' he cannot afterwards object to the arrest as unlawful.^ ^ Brown v. Getchell, 11 Mass. 11. § 3.] COUETS 01 MASSACHUSETTS. 203 CHAPTER XXI. COUETS OP MASSACHUSETTS. PART FIRST. § 1. Enumeration of the Courts. — The Subject of this chapter is the courts of Massachusetts, in which the prac- tice and proceedings are according to the course of the common law. These are the Supreme Judicial Court and the Superior Court, having jurisdiction throughout the State, and several municipal, police, and district courts for their respective dis- tricts, and trial justices. § 2. The Supreme Judicial Court consists of one chief justice and six associate justices, four of whom constitute a quorum, to decide all questions of law,^ and two of whom have the powers of a full court in the trial of indictments for murder.^ § 3. Jurisdiction of this Court. — It has general superin- tendence of all courts of inferior jurisdiction, to prevent and correct errors and abuses therein, and may issue all writs to courts of inferior jurisdiction that they may deem necessary for the furtherance of justice and the regular execution of the laws.^ It has original and exclusive jurisdiction of the trials of indictments for capital crimes, of petitions for divorce and nullity of marriage, and original and concurrent jurisdiction with the Superior Court of petitions for partition, and writs of entry for foreclosure of mortgages, and of civil actions, except actions of tort, in which the damages demanded or property claimed exceed in amount or value four thousand J. Pub. St. o. 150, § 1, 2. » Pub. St. C. 150, § 3. 2 Pub. St. t. 150, § 19. 204 COUKTS OF MASSACHUSETTS. [CS. XXI. dollars if brought in the county of Suffolk, and one thousand dollars if brought in any other county, if the plaintiff, or some one in his behalf, before service of the writ, makes oath or affirmation before some justice of the peace that he verily believes the matter sought to be recovered actually equals in amount or value said sums respectively; a certificate of which oath or affirmation must be indorsed on or annexed to the writ.^ § 4. Questions of law on exceptions, on appeals from the Superior Court, on cases stated by the parties,, and on special verdicts, and all issues in law, are heard and determined by the full court.2 § 5. Actions removed. — This court has jurisdiction also of cases removed to it from the Superior Court. See post, p. 206. §6. Equity Jurisdiction. — This court also has "jurisdic- tion in equity to reach and apply in payment of a debt any property, right, title, or interest, real or personal, of a debtor, liable to be attached or taken on execution in a suit at law against him, and fraudulently conveyed by him with intent to defeat, delay, or defraud his creditors, or purchased, or directly or indirectly paid for by him, the record or other title to which is retained in the vendor, or is conveyed to a third person with intent to defeat, delay, or defraud the creditors of the debtor ; " also of " all cases and matters of equity cognizable under the general principles of equity jurisprud- ence, and, in respect of all such cases and matters, shall be a court of general equity jurisdiction." ^ See Equity Jurisdic- tion of Superior Court. § 7. The Supreme Judicial Court is the supreme court of probate, and has appellate jurisdiction of all matters deter- minable by the probate courts and the judges thereof, except in cases in which other provisions are specially made.* It may revise or affirm, in whole or in part, the sentence or act appealed from, and may pass such decree thereon as the probate court or judge ought to have passed, and remit the 1 Pub. St. c. 150, § 5. 8 Pub. St. c. 151, § 3, 4. « Pub. St. c. 150, § 7. * Pub. St. c. 156, § 5. § 11.] COURTS OF MASSACHUSETTS. 205 case for further proceedings, or take any other order therein, as law and justice shall require. It has also jurisdiction of all suits on probate bonds.^ It has general superintendence and jurisdiction of all cases arising under the Public Statutes, c. 157, providing for courts of insolvency. The times for holding the terms of this court are fixed by statute.^ § 8. A law term of the court for the Commonwealth is held at Boston on the first Wednesday of January of each year, which may be adjourned from time to time to places and times most conducive to the despatch of business and the interests of the public ; and there shall be entered and deter- mined therein questions of law arising in the counties of Barnstable, Middlesex, Norfolk, and Suffolk, and also all questions of law arising in other counties where special pro- visions are not made therefor.^ § 9. The Superior Court consists of one chief justice and ten associate justices, any one of vfhom may hold a court in any county. * § 10. Original Jurisdiction. — It has exclusive original juris- diction of complaints for flowing lands, of claims against the Commonwealth, of actions of tort, except those of which the police, district, or municipal courts, or trial justices, have concurrent original jurisdiction, and original jurisdiction of all civil actions, except those of which the Supreme Judicial Court, police, district, or municipal courts, or trial justices, have exclusive original jurisdiction.^ § 11. Original and Concurrent Jurisdiction. — It has original and concurrent jurisdiction with the Supreme Judicial Court of petitions for partition, and writs of entry for the fore- closure of mortgages, and of all civil actions, except actions of tort, in which the sum demanded, or property claimed, exceeds in amount or value four thousand dollars if brought in the county of Suffolk, and one thousand dollars if brought in any 1 Pub. St. c. 143, § 19. * Pub. St. c. 152, § 1, 2. 2 Pub. St. c. 150, § 30. 5 Pub. St. c. 152, § 3, » lb. 206 COUKTS OF MASSACHUSETTS. [CH. XXI. other county ; and original and concurrent jurisdiction with police, district, and municipal courts, and trial justices, where the sum demanded, or the value of the property claimed, ex- ceeds one hundred dollars, in cases where such courts and justices have jurisdiction, except actions of replevin of heasts distrained for the recovery of any penalty or forfeiture, or to obtain satisfaction for damages.^ It has 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 proceedings in equity to courts of inferior jurisdiction, corporations and persons, when necessary to secure justice and equity .^ § 12. Appellate Jurisdiction. — It has jurisdiction of all civil actions and proceedings legally brought before it by appeal or otherwise from trial justices, poHce, district, or municipal courts, or courts of insolvency, and from the decisions of com- missioners on insolvent estates of deceased person's.^ § 13. Removal of Actions. — ActionsT^xcept of tort, and petitions for partition, in which the dartliages demanded, or property claimed, or estate in controvejfsyj-exceed in amount or value four thousand dollars if brought in the county of Suffolk, and one thousand dollars if brought in any other county, may, before thgtrial is commenced, be carried, by consent of parties, ■^^ti^A. 'Supreme Judicial Court ; the plain- tiff shall enter^^jikeviime at the next term of that court, and the cause shall proceed as if the action or petition was origin- ally brougiit -therein.* Unde^ this provision, complaints for flowing land cannot be removed to the Supreme Judicial Court.^ § 14. Trial Justices. — The statutes provide that the gov- ernor may appoint a suitable number of trial justices to be distributed as the convenience of the several counties requires; and the number in commission shall not exceed, — 1 Pub. St. c. 152, § 4. * Pub. St. c. 152, § 7. 2 St. of 1883, c. 223. 6 Humphrey v. Berkshire Woollen » Pub. St. c. 152, § 5. Co., 10 Allen, 420. § 16.] COURTS OF MASSACHUSETTS. 207 in Barnstable, nine; Berkshire, twelve; Bristol, thirteen; Dukes County, two ; Essex, nineteen ; Franklin, ten ; Hamp- den, ten; Hampshire, ten; Middlesex, thirty; Nantucket, two; Norfolk, seventeen; Plymouth, fifteen; Suffolk, one; Worcester, twenty-six.^ Under the authority thus given, a large number of trial justices have been appointed in different parts of the State, and their several judicial districts defined. § 15. Jurisdiction of Trial Justices. — They have power to hold courts within the counties for which they are appointed,^ except when their jurisdiction is excluded by the jurisdiction of police, district, or municipal courts.* § 16. They have original jurisdiotion, exclusive of the Supe- rior Court, of all actions of replevin for beasts distrained or impounded in order to recover a penalty or forfeiture sup- posed to have been incurred by their going at large, or to obtain satisfaction for damages alleged to have been done by them ; summary processes to recover land ; and of aU actions of coijtract, tort, or replevin, when the debt or damages de- manded, or the value of the property alleged to be detained, does not exceed one hundred dollars.* They have original and concurrent jurisdiction with the Superior Court of actions of contract, tort, or replevin, where the debt or damages demanded, or value of property alleged to be detained, is more than one hundred, and does not exceed three hundred dollars.^ They have jurisdiction in cases of bastardy,® forcible entry and detainer, or summary process for recovery of land,'' me- chanics' liens, when the amount of debt does not exceed three hundred dollarfi,^ liens in general,^ proceedings against poor debtors,^" commitment of idiots to the State almshouse," and various other matters. They may issue all writs, warrants, and processes necessary 1 Pub. St. c. 155, § 7-10. ' Pub. St. c. 175, § 2. 2 Pub. St. c. 155, § 12. 8 Pub. St. c. 191, § 11. 8 Pub. St. c. 1 54, § 13. 9 Pub. St. c. 192, § 24. < Pub. St. c. 155, § 12. l» Pub. St, c. 162, § 1-26. 6 Pub. St. c. 155, § 13. " Pub. St. c. 86, § 28. « Pub. St, c, 85, § 1. 208 COURTS OF MASSACHUSETTS. [CH. XXI. or proper to carry into effect the powers granted to them ; and when no form is prescribed therefor by statute, they shall frame one in conformity with the principles of law and the usual course of proceedings in the courts of this State.-' They have the same authority to issue commissions to take depositions in cases pending before them that the Superior Court has in cases pending in that court.^ They have power also to issue writs of scire facias against executors and administrators, upon a suggestion of waste, after judgment against them, and also against the bail taken in a civil action before themselves, and proceed therein to judgment and execution in the same manner as the Superior Court might do in like cases.^ § 17. The rules of practice before a trial justice are a part of the unwritten law, and probably are varied in some respects in the different districts assigned to the several trial justices. Previous to 1852, justices of the peace had jurisdiction of civil actions in which the debt or damages demanded did not exceed twenty dollars. The Statute of 1852, c. 314, § 1, extended the jurisdiction to all civil actions wherein the debt or damages demanded did not exceed one hundred dollars. By legislation in 1858 and 1859, it was provided that the governor should designate and commission in the several counties " a suitable number of justices of the peace as trial justices" for criminal cases, — justices of the peace retaining their jurisdiction in civil actions. By Statute of 1877, c. 211, § 1, it was provided that " no justice of the peace not designated and commissioned as a trial justice shall hereafter have Or exercise any power, authority, or jurisdiction to try civil cases, or receive com- plaints or issue warrants; provided, however, that any jus- tice of the peace who shall also be a clerk or assistant clerk of any municipal, district, or police court, may receive com- plaints and issue warrants, returnable before some trial jus- tice, police, district, or municipal court, having jurisdiction of the examination of the person charged with the offence." 1 Pub. St. c. 155, § 67. 2 Pub. St. c. 155, § 70. » Pub. St. c. 155, § 14. § 22.] COUETS OF MASSACHUSETTS. 209 The jurisdiction of all justices of the peace in civil actions, by this statute, became restricted to justices of the peace designated and commissioned as trial justices. No uniform rules of practice before trial justices have been adopted by them or established by statute. Practice before them is regulated by the common usage in proceedings before them, and before justices of the peace, before the enactment of the statute taking from the latter jurisdiction in civil cases, and by statute provisions and decisions of the Supreme Judi- cial Court. Practice before some of the trial justices is substantially in conformity -with the practice in district courts. See at the end of this chapter as to rules of those courts, and some rules of the Municipal Court of the city of Boston. § 18. The original writ in all civil actions commenced before a trial justice must be a summons or a capias and attachment. It cannot run into any other county than that in v^hich it is returnable, except for the purpose of causing an attachment of property therein.^ § 19. Trials before trial justices may be had at their dwell- ing-houses, or any other convenient and suitable places ; and writs and processes may be made returnable accordingly, but not earlier than nine o'clock in the forenoon, nor later than live o'clock in the afternoon.^ § 20. If a trial justice fails to attend at the time and place to which a civil process is returnable or continued before him, any justice of the peace for the same county may attend and continue the process not exceeding thirty days without costs and saving the rights of all parties ; and he must make a certificate thereof, which must be filed with the papers in the case, and entered upon the record by the trial justice before whom the process was returnable.^ § 21. If a plaintiff fails to enter his action and prosecute it, or if upon trial he does not maintain the same, the defendant will be entitled to judgment for his costs.* § 22. If a person duly served with process fails to ap- 1 Pub. St. c. 155, § 17, 18. 8 Pub. St. c. 155, § 21. ' Pub. St. c. 155, § 20. « Pub. St. c. 155, § 23. 14 : 210 COUETS OF MASSACHUSETTS. [OH. XXI. pear, his default will be recorded, add judgment entered thereon.^ § 23. Removal of Cases to the Superior Court. — When it appears by the pleadings or otherwise, in an action pending before a trial justice, that the title to real estate is concerued or brought in question, the fact, if it does not appear by the pleadings, may be stated on the record, and the case will, at the request of either party, be removed to the Superior Court, to be there tried and determined in like manner as if it had been originally commenced, or, if it is a writ of scire facias, in like manner as if the original judgment had been obtained in that court. This provision of the statute does not apply to a petition to enforce a mechanic's lien. Such petition cannot be re- moved to the Superior Court.^ If the fact that the title to real estate is concerned or brought in question does not appear by the pleadings, it should be stated on the record.^ The title to real estate is not to be deemed to be concerned when it is admitted ; * nor can it be brought in question in an action of tort for breaking and entering the plaintiff's close, when the only question is whether a lease under which the plaintiff claimed to be entitled to possession had been determined.^ The case need not be removed without' request of a party ; and as to what is a request, see case cited.® The party requiring the case to be removed must recog- nize, with sufficient sureties, to enter the case in the Superior Court.7 § 24. Defendant may plead orally. — In all civil actions be- fore trial justices, the defendant may file his plea or answer in writing, or may orally deny the plaintiffs right to main- tain his action ; and upon an issue so joined, a trial may be had, and any matter be given in evidence by either party 1 Pub. St. c. 155, § 22. 6 MartiU v. Tobin, 123 Mass. 85, 87. ■•' Dion V. Powers, 128 Mass. 192. 6 Leary v. Beagan, 115 Mass. 558. « Pub. St. c. 155, § 24. 7 Pub. St. c. 155, § 25, 26. * SburtlefE v. Eutchins, 10 Met. 248, 250. § 28.] COURTS OF MASSACHUSETTS. 211 which would have been admissible if the defence had been made under a plea in bar.^ § 25. An appeal lies from any judgment of a trial justice, or police or municipal court, to the Superior Court.^ See post, chapter on Appeals. § 26. Record and Docket. — The statutes require that trial justices shall keep a record of all their judicial proceedings both in civil and criminal cases ;^ that they may adjourn their courts ; * and that they may punish such disorderly con- duct as interrupts any judicial proceedings before them.^ They must keep a docket of cases entered, but the , calling of the general docket is dispensed with. On days assigned for trials, the trial list is called, at which times parties having cases on it, or their attorneys, are expected to be present, and prepared for trial. § 27. Police, Municipal, and District Courts. — A large num- ber of such courts have been established in the State, and their several judicial districts assigned by statute.^ ■ In their respective counties they exercise the same powers, have the same jurisdiction civil and criminal, perform the same duties, and are subject to the same liabilities, as trial jus- tices. They have all powers necessary for the performance of their duties. The proceedings in the hearing, trial, and determination of cases, and all matters relating thereto, are the same as in like cases provided by statute before trial jus- tices, unless otherwise expressly provided.' The civil jurisdiction of a police or district court, when the plaintiff and defendant both reside in the same district, ex- clude the jurisdiction of other police and district courts, and of trial justices.^ § 28. Terms of such Courts. — The statutes provide that each police, municipal, and district court "shall be held daily, except on Sundays and legal holidays, for criminal 1 Pub. St. c. 155, § 27. « Pub. St. c. 154, § 1, 2; St. of 1882, 2 Pub. St. c. 155, § 28. c 154. ' Pub. St. c. 155, § 69. ' Pub. St. c. 154, § 11, 12. ♦ Pub. St. 0. 155, § 71. 8 Pub. St. c. 154, § 13. 6 Pub. St. c. 155, § 68. 212 COURTS OF MASSACHUSETTS. [CH. XXI. business, and for civil business as often as required by law, and as may be necessary. It shall be held in the court-house, or in any other suitable place within the dis- trict which the district or county may provide, and may be adjourned from time to time, as occasion requires, to the same or any other place in the district provided by the district or county as aforesaid. The times of holding terms for civil business, when not established by special law, shall be fixed by the justice by general rule." ^ § 29. Entry of Actions in such Courts. — All writs in civil actions issued from these courts should be made returnable at one of the times established by the court or by law for Jiolding a term, and should be entered within the hour named in the writ. If not so entered, the defendant need not appear, or may appear merely for the purpose of moving to dismiss the action. § 30. Appearance of Defendant. — If the action is duly entered,' the appearance of the defendant should be entered within the hour following the time named in the writ.^ § 31. Municipal Court of the City of Boston. — This COUrt consists of one chief justice and three associate justices.^ § 82. Its judicial district includes wards six, seven, eight, nine, ten, eleven, twelve, sixteen, seventeen, and eighteen.* § 33. Civil Jurisdiction. — The Statute provides that it shall have "original concurrent jurisdiction with the Superior Court of all civil actions and proceedings (except when the title to real estate is put in issue) wherein the sum demanded, or the value of the property alleged to be detained, exceeds one hundred and does not exceed one thousand dollars, and one or more of the defendants, or, in trustee process, one or more of the trustees, live, or have their usual place of business, in the city of Boston ; " that " the civil jurisdiction of said court, when the plaintiff resides, or has his usual place of business, within the county of Suffolk, or resides out of the Common- wealth, shall include personal actions wherein the defendant 1 Pub. St. c. 154, § 23. 8 Pub. St. c. 154, § 55 ; St. of 1882, " Blanchard ... Walker, 4 Gush. 455. u. 41, § 1. « Pub. St. c. 154, § 42. § 37.] COUETS OF MASSACHUSETTS. 213 is not ail inhabitant of the State, if personal service of the writ, or an effectual attachment of property, is made within the county of Suffolk." i § 84. Terms of Court. — The statutes require that " the court shall be held for criminal business daily, except on Sundays and legal holidays, at nine o'clock in the forenoon, and, if it appears expedient to any of the justices, at three o'clock in the afternoon, or some hour thereafter; and it shall be held weekly for civil business. Each term shall com- mence on Saturday, and actions therein may be continued to any future day fixed for the sitting of the court; and dif- ferent justices may hold different sessions at the same time for the trial of civil or criminal cases." ^ § 35. Some of the rules of this court are given at the end of this chapter. § 36. other Municipal Courts. — In addition to the muni- cipal. court of the city of Boston, there are other municipal courts, each having its judicial district as follows : — The municipal court Of the Bast Boston district ; wards one and two, and Win- throp : Of the Charlestown district ; wards three, four, and five : Of the South Boston district; wards thirteen, fourteen, and fifteen : Of the Roxbury district ; wards nineteen, twenty, twenty- one, and twenty-two : Of the Brighton district ; ward twenty-five : Of the West Roxbury district ; ward twenty-three : Of the Dorchester district ; ward twenty-four.^ The powers and jurisdiction of these municipal courts are the same as the powers and jurisdiction of police and dis- trict courts and trial justices, except as otherwise provided in the one hundred and fifty-fourth chapter of the Public Statutes.* § 37. Territorial Jurisdiction. — The statutes provide that 1 Pub. St. c. 1.54, § 59, 60. « Pub. St. c. 154, § 42; St. of 1882, 2 Pub. St. C. 154, § 62. »;. 146. 4 Pub. St. c. 154, § 43. 214 COURTS OF MASSACHUSETTS. [CH. XXI. the municipal courts within the city of Boston shall have concurrent jurisdiction over all waters, islands, and places not included in the district of any one of said courts or of the police court of Chelsea, and within the jurisdiction of the superior court for the county of Suffolk, except as provided in the following section. The municipal courts of the city of Boston, of the East Boston district, of the Charlestown district, and of the South Boston district, shall have and exercise, concurrently with each other, the same criminal jurisdiction that said courts have within their respective districts over all islands and waters within the criminal jurisdiction of the Superior Court for the county of Suffolk. East Boston is not included in that jurisdiction.! § 38. Powers of all these Local Courts similar. — The powers and jurisdiction of trial justices of police and district courts, and all municipal courts except the municipal court of the city of Boston, are essentially the same ; each has original and concurrent jurisdiction with the Superior Court of all actions of contract, tort, or replevin, when the debt or dam- ages demanded, or value of the property alleged to be de- tained, does not exceed one hundred dollars.^ The municipal court of the city of Boston has similar powers and jurisdiction concurrent with the superior court, of all civil actions and proceedings (except when the title to real estate is put in issue) wherein the sum de- manded or the value of the property alleged to be detained exceeds one hundred, and does not exceed one thousand dollars.^ § 39. Rules for the civil business, municipal court, of the city of Boston were adopted in 1879, and are now in force. The substance of a portion of them is given below. Rule 1. "The time allowed for entries shall be from nine o'clock A. M. until twelve o'clock M., on the first day of the term," unless on motion and notice as provided in the rule. 1 Pub. St. c. 154, § 44, 45. 8 Pub. St. c. 154, § 59. 2 Pub. St. c. 155, § 13 ; c. 154, § 11, § 39.] COUETS OF MASSACHUSETTS. 215 Rule 3. " The defendant's appearance may be entered be- fore the opening of the court on the third day of the first term." Mule 5. "Lists of actions for trial may be handed to the clerk before one o'clock p. M. on Friday of each week," and the trial must be ready for examination by the first day of the term. Actions may be put on the list for cause on mo- tion, and by leave after that time. Mule 6. " Motions will be beard on the second day of each term at nine o'clock A. M.," and at other times by appointment. Mule 8. " Trials shall commence on the second day of the term unless the court otherwise order." Actions will be heard in their order. Mule 10, " as to answers, provides that any defence which might have been made by plea in abatement, demurrer, or motion to dismiss, may be made by an ans-wer in compliance with the 129th chapter of the General Statutes, filed on or before Tuesday next after the return day, unless the Court otherwise order. An answer to the declaration shall be filed in actions of contract, tort, and replevin on or before the Wednesday next succeeding the entry day. When a party files a declaration in set-off, he shall, on the day of filing the same, or within such further time as the Court may allow, give written notice thereof to the adverse party or his attorney. An answer to the declaration in set-off shall be filed within forty-eight hours after notice of the filing of the same. But the court may, on motion, allow an answer required by this rule to be filed at any other time. And if an answer be not filed as herein provided, a default may be entered on motion of the plaintiff, by order of Court." The 129th chapter of the General Statutes corresponds substantially with c. 167 of the Public Statutes. Rule 11. " When damages are to be assessed, the plaintiff shall file a statement of his claim unless the same appears on papers filed in the case." 216 COURTS OF MASSACHUSETTS. [CH. XXI. Rule 16. " All motions to amend shall have annexed to them the proposed amendment." Rule 17. " Interrogatories to parties may be filed by either party in court or in clerk's office, at any time after the com- mencement of the action. Answers to be filed within four days after notice." Rule 29. "When an officer claims extra compensation for ex- penses in serving a precept, or removing or keeping property, the same shall not be allowed, unless he return with his pre- cept a bill of particulars of the expenses, together with his affidavit, that they were actually incurred, and that the charges are reasonable." Rule 30. "If a person summoned as trustee shall not, during the first term, appear and file his declaration that he has no goods, effects, or credits, and his submission to examination on oath, nor his admission that he has the same, and his declara- tion upon oath of such facts as are material, he may be de- faulted and adjudged trustee, unless further time is, for reasons, allowed by the court." If such supposed trustee shall not file in the Clerk's office, answers under oath, to the plaintiff's interrogatories, within seven days after notice of the filing of the same, nor as the court may otherwise order, he shall upon motion be de- faulted and adjudged trustee, unless further time is, for rea- sons, allowed by the court. Any person claiming, in court, funds in the hands of a trus- tee, shall file a statement of the particulars of his claim when he enters his appearance, and shall have the opening and close. Rule 34. " Copies of every account, schedule, or statement containing more than three items of any matter of action or defence, in each case on the trial list, shall be handed to the clerk before the reading of the writ ; otherwise the action may be postponed or continued, or such other terms imposed as the court may order." Rule 36. " Upon an appeal from a judgment in proceedings under chapter one hundred and thirty-seven of the General Statutes, the amount of the bond, and, in all cases of appeal. § 40.] COURTS OF MASSACHUSETTS. 217 the sufficiency of the surety or sureties, may be determined by the clerk, with right of appeal from his decision by either party to any justice of the court." The other rules are substantially like rules of the Superior Court. § 40. Rules of Police and Municipal Courts. — Several of the police and district courts have adopted rules of practice for civil cases in their respective courts. So far as known to the writer there is a general uniformity between them, and all are substantially like the rules of the municipal court of the City of Boston, some of which are referred to in this chapter. 218 COUETS OF MASSACHUSETTS. [OH. XXU. CHAPTER XXII. COTJETS OP MASSACHXrSETTS. PART SECOND. § 1. Enumeration of the Courts. — Courts in Massachusetts in which the practice and proceedings are not according to the course of the common law are the subject of this chapter. In this list are included the probate courts, the courts of insolvency, and the board of county commissioners. The jurisdiction of each of these courts is limited to the county for which it is established. Although the judges of probate are also judges of insol- vency, yet the courts of probate and the courts of insolvency are separate courts, having different and independent juris- dictions. § 2. Jurisdiction of Probate Courts. — The probate court for each county has jurisdiction of matters and proceedings as follows : — It has jurisdiction of the probate of wills, of granting ad- ministration of the estates of persons who at the time of their decease were inhabitants of or resident in the county, and of persons who die out of the Commonwealth leaving estate to be administered within the county ; of the appointment of guardians to minors and others ; of all matters relating to the estates of such deceased persons and wards ; ^ and of ques- tions arising under wills.^ When a widow is entitled by the provisions of law, by deed of jointure, or under the will of her husband, to an undivided interest in his real estate either for life or during 1 Pub. St. c. 156, § 2. » Pub. St. c. 127, § 34. § 3.] COUETS 0¥ MASSACHUSETTS. 219 ■widowhood, if her right is not disputed by his heirs or de- visees, such interest may be assigned to her, in whatever counties the lands lie, by the probate court for the county in wliich the estate of her husband is settled.^ The Probate Court has power concurrent with the Supreme Judicial Court to authorize executors, administrators, guar- dians and trustees, to make sales and mortgages of real estate, to adjust by arbitration or compromise any demands in favor of or against the estates by them represented, to ratify and con- firm their doubtful acts, and to enforce specific performance of written agreements for the conveyance of real estate when the party to make such conveyance dies^ or is put under guardianship before making such conveyance, in all cases specified in chapter one hundred and forty-two of the Public Statutes. ' The probate court in whi. Kendall, 21 Pick. 36. ^ Pub. St. o. 137,. § 9. " Boynton v. Dyer, 18 Pick. 1. ° Pub. St. c. 137, § 3. § 36.] COURTS OF MASSACHUSETTS. 229 The Public Statutes, c. 137, § 1, designate what debts are preferred and the order of their preference, and also prescribe the proceedings to be had on an appeal from the decision of such commissioners on the judgment thereon.^ § 34. Appeal from Becision of Commissioners. — There is no form prescribed in which the claim of an appeal from the decision of the commissioners shall be made, or the notice given. It is only requisite that it shall be made known at the probate office, so that it may then be properly matter of record, and the proceedings directed accordingly. Copies of the record, showing the doings of the. commissioners and the appeal, must be produced and entered in the court ap- pealed to. § 35. Statement of Claim on Appeal. — The creditor must file a statement of his claim in the court appealed to in sub- stance like a declaration. After that the ordinary rules of pleading are applicable to the proceedings. Appeals from the allowance of several claims of different creditors may all be embraced in one written notice to the Probate Court. The papers need not show any legal cause for taking the appeal.^ § 36. . Claims secured in part. — If a creditor of an insolvent estate have a mortgage as security for his debt, of less value than the amount of the debt, he can prove his claim only for the difference between his debt and the value of the mort- gaged property.^ So also when other security is held for a debt. The value of the security must first be ascertained and deducted from the claims, and the balance only proved.* The value of the security may be ascertained by a sale, or it may be determined by a jury, or fixed by agreement of parties. The creditor may waive his security and prove his whole claim. A claim payable absolutely may be proved before its maturity.^ § 37. Accounts of Xizecutors, Administrators, Gueirdiaiis and 1 Pub. St, c. 137, § 11-13. * Middlesex Bank v. Minot, 4 Met. 2 Jacobs B.Jacobs, 110 Mass. 229- 325. 231. ' Haverhill Loan and Fund Associa- ' Amory V. Francis, 16 Mass. 308. tion v. Cronin, 4 Allen, 144. 230 coxJETS OF ma'ssachusetts. [ch. xxn. Trustees. — The form and substance of the accounts of every executor, administrator, guardian and trustee is given by statute, and these, when properly rendered and proved to the satisfaction of the court, are allowed, and ordered to be recorded.^ § 38. Costs. — The statutes provide that in cases contested either before a Probate Court or before the Supreme Court of Probate, costs in the discretion of the court may be awarded to either party to be paid by the other, or to either or both parties to be paid out of the estate which is the subject of the controversy, as justice and equity may require. When costs are awarded to be paid by one party to the other, said courts may issue execution therefor in like man- ner as is practised in the courts of common law.^ Costs in cases of appeal are not, however, generally allowed, but only when for special reasons it appears just and proper that they should be.^ § 39. Forms. — In 1862 the judges of probate, pursuant to authority given them by statute, adopted forms for proceed- ings in the several Probate Courts, which forms were ap- proved by the Supreme Judicial Court, and were adopted and filed in that court as standard forms to be used in all the Probate Courts of the Commonwealth. These forms are kept by the registers of probate in all the counties, and are fur- nished without charge to those who want them. These forms thus established have the authority of a rule of court, and are binding upon parties and the court. The use of them cannot be dispensed with to suit the circumstances of any particular case.* § 40. The courts of insolvency in the several counties are courts of record, and have original jurisdiction, in their re- spective counties, of all cases of insolvency arising under the provisions of the statutes. The judges and registers of probate are also judges and registers of insolvencj'.^ 1 Pub. St. c. 144, § 1-12 ; o. 130, Woodbary v. Obear, 7 Gray, 467, 472 ; § 11- Edwards v. Ela, 5 Allen, 87, 89. 2 Pub. St. c. 156, § 35-37. * Baker v. Blood, 128 Mass. 543-545. ' Chenery v. Davis, 16 Gray, 89, 91 ; ' Pab. St. c. 157, § I, 2. § 43.] COUETS OF MASSACHUSETTS. 231 In view of the probability that the enactment of a United States bankrupt law at an early day may supersede the oper- ation of the insolvent laws of the State, entirely or in part, it may seem unnecessary to incumber this work with a chap- ter on the subject of practice under the latter law. It is not improbable, however, that any national bankrupt law that may be adopted may fail to apply to all cases of insolvency to which our State laws apply, and that, as to such cases the State insolvent laws will remain in force, after such bankrupt law takes effect. § 41. Practice in the courts of insolvency is in general ac- cording to the course of procedure in the Probate Courts. This seems to be a natural result of the statute which pro- vides that the judges and registers of probate should be judges and registers of insolvency. The judges of insolvency or a majority of them are authorized " to make rules for regu- lating the practice and conducting the business of the courts in cases not expressly provided for by law," to be approved by the Supreme Judicial Court ; ^ and the last-named court is also authorized to make such general rules and forms as it deems necessary to establish and maintain a regular and uni- form course of proceedings in all the counties.^ A few rules were early adopted. The provisions of the insolvent laws have since been considerably altered, and no other rules have been adopted. § 42. The Supreme Judicial Court has a general superin- tendence and jurisdiction of all eases in insolvency, and except where special provision is otherwise made, may upon the bill, petition, or other proper process of any party ag- grieved, hear and determine the case as a court of equity. These powers may be exercised by the court or by any justice thereof in term time or vacation.* § 43. Terms of Court. — Each court of insolvency must be held at the shire towns of the county at such times as the judge appoints, and may be held at such other places as will best promote the convenience of the public. The judge may 1 Pub. St. c. 157, § 14. 2 Pub. St. c. 157, § 15. » lb. 232 COUETS OF MASSACHUSETTS. [CH. XXII. adjourn any court or meeting from time to time as occasion requires, and all things lawfully done at an adjourned meet- ing will have like force and effect as if done at the original meeting.^ § 44. The judge may in vacation as well as in court approve compositions and assignee's bonds, approve or order sales, receive petitions, issue orders of notice and warrants, and do such other official acts as are done as matters of course and do not require notice to an adverse party .^ § 45. Who is entitled to Proceedings in Insolvency. — Any .inhabitant of this State owing debts contracted while such inhabitant is entitled to institute proceedings for the benefit of the laws for the relief of insolvent debtors.^ § 46. Petition. — Such person may apply by petition to the judge of the county within which he has last resided for three consecutive months before the application, if he has resided for that time in any county, otherwise to the judge for the county within which he resides, setting forth his inability to pay all his debts, and his willingness to assign all his es- tate and effects for the benefit of his creditors, and praying that such proceedings may be had in the premises as are pro- vided in the statutes.* § 47. Deposit of Money to secure Payment of Fees. — Before a warrant can be issued in the case, the petitioner, or some person in his behalf, must deposit with the register of the court forty dollars as security for the payment of the fees and disbursements in the case. Such deposit must in all cases be applied as far as necessary to the payment of such fees, and the surplus, if any, paid to the assignee as assets of the estate. In cases where the deposit is made by parties other than the debtor, the amount of the same shall be repaid to the depositor out of the assets remaining in the hands of the assignee upon settlement of his account before a dividend is ordered, or so much of said amount as said assets shall be sufficient to pay.^ 1 Pub. St. c. 1.57, §3. < lb. = Pub. St. c. 157, § 4. 6 Pub. St. c. 157, § 137. "Pub. St. c. 157, § 16. § 51.] COURTS OF MASSACHUSETTS. 233 § 48. 'Warrant and Notice. — It is provided by statute that " if it appears to the satisfaction of the judge that the debts due from the applicant amount to not less than two hundred dollars, he shall forthwith issue a warrant under his hand to the sheriff of the county or either of his deputies, directing him forthwith as messenger to tafcte possession of all the es- tate real and personal of the debtor, except such as may be by law exempt from attachment, and of aU his deeds, books of account, and papers, and keep the same safely until the appointment of an assignee ; to publish notice in such news- paper or newspapers as the warrant specifies, send written notice by mail or otherwise to all creditors upon the schedule furnished him by the debtor, and to give such personal or other notice to any persons concerned as the warrant prescribes ; which notice shall state, " First, That a warrant has issued against the estate of the debtor. " Second, That the payment of any debts, and the delivery of any property belonging to such debtor, to him or for his use, and the transfer of any property by him, are forbidden by law. " Third, That a meeting of the creditors of the debtor to prove their debts and choose one or more assignees of his estate will be held at a court of insolvency to be holden at a time and place designated in the warrant, not less than ten nor more than sixty days aifter the issuing of the same." ^ § 49. Duty of Messenger. — The messenger must, as soon as may be, demand and receive from the debtor and other per- sons all the estate in his or their possession respectively, which is ordered to be assigned, with all deeds and books of account and papers of the debtor relating thereto.^ § 50. The duties of the judge and register are defined in the statutes.^ § 51. All property of the debtor must be delivered by him to the messenger, also a schedule of the creditors of the debtor, sworn to by him as required by statute.* 1 Pub. St. c 157, § 17. 8 Pub. St. e. 157, § 5-II. 2 Pub. St. c. 157, § 18. 4 Pub. St. e. 157, § 19-23. 234 COURTS OF MASSACHUSETTS. [CH. XXII. § 52. At the first meeting of the creditors the messenger must make return of his warrant and his doings thereon, and deliver to the register the schedule of creditors received from the debtor. If the notice is insufficient, further notice may be ordered, and the meeting adjourned .1 If the notice is sufficient, the creditors will be allowed to proceed to prove their claims. § 53. The claims which are provable are designated in the statute, referred to in note, and the form and manner of their proof prescribed.2 A proof may be altered or expunged on the application of the assignee or any creditor for fraud, illegality, or mistake.' § 54. The election of an assignee is made by the creditors, subject to the approval of the judge, at the first meeting of the creditors, the choice to be made by the greater part in value of the creditors who have proved their debts ; but when the number of creditors present amounts to five and less than ten, the votes of two at least, and, when the number of credi- tors amounts to ten or more, the votes of three at least are necessary for a choice, and no party or person having a pre- ferred claim can vote thereon, except on so much of said claim as exceeds the amount preferred by law. If no choice is made by the creditors at said meeting, the judge must ap- point one or more assignees. If an assignee so chosen or appointed fails within four days to express in writing his ac- ceptance of the trust, the judge may fill the vacancy.* So also if he fails to give the required bond the judge will re- move him and appoint another in his place.® § 55. It is the duty of the assignee to receive from the messenger the property of the debtor and administer on it, and account therefor, as required by law.® § 56. Meetings of Creditors. — There must be a second meeting of the creditors not more than three months after the date of the warrant,^ and a third meeting of the credi- 1 Pub. St. c. 157, § 24. 5 Pub. St. c. 157, § 43. " Pub. St. c. 157, § 26-31. 8 Pub. St. c. 157, § 48-50, 102. » Pub. St. c. 157, § 35. I Pub. St. c. 157, § 76. * Pub. St. c. 157, § 40, 41. § 61.] COURTS OF MASSACHUSETTS. 235 tors within six months from the time of the appointment of the assignee.^ § 57. Dividend. — The statutes provide that " the judge shall at said third meeting order a dividend of the estate and effects, or of such part thereof as he deems fit, among the creditors vi^ho have proved their claims, in proportion to their respective debts ; but, at any time after the assignment, on the request of the assignee or a creditor, and upon such notice to the creditors and assignee as he shall think proper, the judge may in his discretion order the payment, in whole or in part, of claims entitled to priority or preference under the provisions of this chapter." ^ § 68. Reservation of funds may be made for absent credi- tors, or for other reasons, until the final dividend is declared, or until the judge orders its distribution.^ § 69. The second dividend is final unless a suit relating to the estate is then depending, or part of the estate is outstand- ing, or unless some other estate or effects of the debtor after- wards come to the hands of the assignee ; in which cases another dividend will be made by order of the judge. Fur- ther dividends will be made in like manner as often as oc- casion requires.* It is, however, provided that " no creditor whose debt is proved at the time of the second or any subsequent dividend shall disturb a prior dividend, but he shall be paid so far only as the funds remaining unappropriated in the hands of the assignee are sufficient therefor." ^ § 60. The assignee or a creditor may appeal from the deci- sion of a judge of insolvency in allowing or rejecting in whole or in part the claim of a creditor. Such appeal must be entered in the Superior Court at the term first held within fourteen days from the time of claiming the same.^ § 61. Examination of Debtor. — The statutes .provide that " the debtor shall, when required by the court at any time before the granting of his certificate, upon reasonable notice, 1 Pub. St. c. 157, § 80. * Pub. St. t. 157, § 110. 2 Pub. St. c. 157, § 103. 6 Pub. St. u. 157, § 111. 8 Pub. St. u. 157, § 106. « Pub. St. u. 157, § 36. 236 COURTS OF MASSACHUSETTS. [CH. XXH. attend and submit to an examination on oath before the judge, by the assignee or by any creditor, touching his trade and dealings, his property and debts, and all matters which may affect the settlement of his estate in insolvency ; and upon cause shown by affidavit of any person interested in the estate, the court may summon any person suspected of having fraudulently received, concealed, embezzled, or conveyed away any money, goods, effects, or other estate of the debtor, or of having any assets of the debtor in his possession, or having knowledge of anything material relating to the assets or dealings of the debtor, to appear and submit to an exami- nation in like manner." ^ § 62. If the person summoned fails after due notice to appear and submit to such examination, or to answer such interro- gatories as are lawfully propounded to him, the judge may commit him to the jail of the county, there to remain in close custody until he submits to the order of the court. Such examinations, when required by the judge, must be in writ- ing signed by the party examined and filed in the case.^ § 63. A Person charged with receiving Property may be ex- amined. — A person who is duly charged with having fraudu- lently received, concealed, or embezzled and conveyed away property belonging to the estate of an insolvent debtor, may be examined in the court of insolvency, on oath, touching the same, and required to disclose all such matters as may not tend to criminate him.^ § 64. Issues for Trial. — The court to which the appeal is made will, on a demand in writing filed with the clerk by the debtor, the assignee, or a creditor, frame issues of fact for trial by jury, and the same will be so tried, as nearly as may be after the manner of conducting suits at law ; otherwise the appeal will be heard and determined by the court. The assignee or any creditor may appear and ob- ject to the allowance of the certificate.* § 65. Discharge.— If after a full hearing of the parties it appears to the satisfaction of the court, or if the jury find 1 Pub. St. c. 157, § 70. 8 Sawin v. Martin, 11 Allen, 439. 'lb. * Pub. St. c. 1.^7, § 92. § 70.] COURTS OF MASSACHUSETTS. 237 that tbe debtor has made a full disclosure aud delivery of all his estate a8"^4uired by law, and that he has in all things conformed himself to the directions of the statutes, the court will administer to him the oath required and award him a certificate of discharge. ^ § 66. Appeal. — Either the debtor or the assignee may within but not after, ten days from the decision of the judge upon the question of granting the certificate of discharge to a debtor, upon giving notice to the register to be entered with the record of proceedings, appeal from such, decision to the term of the Superior Court which shall be first held within and for the county next after the expiration of fourteen days from the time of claiming the appeal. But if the appellant in writing waives his appeal before the entry thereof in the Superior Court, proceedings may be had in the court of in- solvency as if no appeal had been taken.^ § 67. Proceedings in insolvency may be vacated by the court on petition of a creditor for cause shown.^ § 68. Costs in Proceedings in Insolvency. -^ The statute specifies what costs and fees shall be allowed in each case, and further provides that, for cause shown, further allowance may be made by the court.* In all matters contested in the Superior Court or Supreme Judicial Court, costs may be awarded to either party, to be paid by the other or out of the estate which is the subject in controversy, as justice and equity may require.^ § 69. This brief outline of the practice and procedure in the courts of insolvency of the State, is all that the limits of this work will allow to that subject. § 70. County commissioners, in addition to their numerous executive duties, have judicial powers, and are authorized, in their several counties, to hold established terms or meetings for the transaction of business which may come before them. They may adjourn such terms from one shire town to another in the same county, may issue processes requiring persons to 1 Pub. St. ^. 157, § 92. * Pub. St. u. 157, § 137. 2 Pub. St. u. 157, § 91. « Pub. St. c. 157, § 140. 3 Pub. St. c. 157, § 142. 238 COURTS OF MASSACHUSETTS. [CH. XXII. appear before them at established terms, and may hear parties who appear before them and answer to suchh^rocesses and decide on the subject thereof. They may atoiinister oaths to witness, punish disorderly conduct causing an interruption to the business, or amounting to an open and direct contempt of their authority or persons. § 71. Three required for a Quorum. — No business in which opposing parties appear can legally be finally determined by them, except by consent of parties interested, unless there are three disinterested commissioners present and acting thereon.^ They have a clerk and assistant clerk.^ They can only act together and by a majority of one.^ § 72. They may allow an amendment of a petition pending before them for the assessment of damages by the construc- tion of a railroad. Such a petition is held to be in the nature of a civil action, and that " the commissioners, in exercising jurisdiction over it, wield judicial power." * § 73. They are a Court. — A statute providing in general terms as to the jurisdiction of the several courts within the county is held to include county commissioners.^ When county commissioners have acted upon a subject within their jurisdiction, their record cannot be impeached collaterally, but is conclusive upon all parties in an action at law.s The powers now possessed by county commissioners were at different times vested in the " General Sessions of the Peace," the " Court of Sessions," and the " Commissioners of Highways." These different tribunals formerly exercised judicial authority and were deemed judicial ofiBcers, and were appointed by the executive.'^ In 1885 the act was passed authorizing the election of county commissioners by the people. § 74. Powers of County Commissioners. — The statutes pro- vide that " county commissioners shall have authority, — 1 Pub. St. c. 22, § 16-18. 6 Stone v. Charlestown, 114 Mass. '^ Pub. St. c. 159, § 6. 214, 22.5. * Keed u. Scituate, 5 Allen, 120. « Brewer v. Boston, Clinton, & Fitch- * Grand Junction R. R. Co. o. Conn- burg E. R. Co., 113 Mass. 52. ty Comm'rs, 14 Gray, 553, 564. ' Strong, Pet'r, 20 Pick. 484, 499. § 77.] COURTS OF MASSACHUSETTS. 239 " First, To provide for erecting and repairing court-houses, jails, and other necessary public buildings, within and for the use of their county. " Second, To represent their county, and to have the care of its property and the management of its business and concerns in all cases which are not otherwise specially provided for. " Third, To establish a seal for their county, which shall be in the custody of their clerk, and shall be affixed to all pro- cess issued by them in cases where a seal is required. " Fourth, To do such other acts as may be necessary to carry into effect the powers given them by law." ^ It is not within the scope of this work to specify the vari- ous matters over which county commissioners may exercise judicial powers. § 75. Practice before county comniissioners is governed by statutes and general usage. All proceedings before them are commenced by petition on which notice is ordered to the parties in interest who are by law entitled to notice. Such notices are made returnable at a future term or meeting of the commissioners.^ Hearings before them are governed by the rules which govern similar hearings in the common law courts. The practice is in general informal, and not regu- lated by established rules of the commissioners. § 76. Service of Processes issued by Commissioners. — Sheriffs, deputy sheriffs, and constables are required to serve and execute all legal warrants and processes to them directed by the county commissioners.^ § 77. Business in Vacations. — The commissioners or the chairman of the board may, at other times than at regular meetings, receive petitions relating to railroads or to matters in which the county has no interest, and may take recognizances thereon, and, on such petitions and on similar petitions en- tered at a regular meeting and pending before them, may appoint times for hearing the parties and acting thereon, and may direct proper notices to be given to persons in- terested.* '• Pub. St. c. 22, §"19. « Pub. St. c 22, § 21. s Pnb. St. c. 22, § 16-26. • Pub. St. c. 22, § 26. 240 COURTS OF MASSACHUSETTS. [CH. XXII. § 78. Recognizance for Costs. — When a person or corpora- tion applies to the commissioners to estimate or assess dam- ages sustained by reason of property taken or intended to be taken for the purposes of a railroad or other corporation, or to perform any other official act in relation to matters in which the county has no interest, the commissioners, before proceeding to act, must require the applicant to enter into a recognizance to the county, with sureties to their satisfaction, for the payment of all costs and expenses which shall arise by reason of such application and of the proceedings thereon ; and the same remedy shall be had to enforce the payment thereof as is provided in the case of recognizances entered into under the provisions of chapter forty-nine of the Public Statutes.^ § 79. Costs and Expenses. — " When the commissioners assess damages upon any application referred to in the pre^ ceding section, they must add to such damages the amount of costs and expenses incurred by reason of the application and of their proceedings thereon." " When a petition to the commissioners is disallowed, and costs are chargeable to the petitioner, there shall be taxed for each commissioner at the rate of three dollars a day for time, and five cents a mile for travel to and from the place of meet- ing, which costs shall be paid into the county treasury." ^ 1 Pub. St. c. 22, § 23. 2 Pub. St. c. 22, § 24, 25. § 2.] UNITED STATES COURTS. 241 CHAPTER XXIII. UNITED STATES COUETS. § 1. Practice in Circuit and District Courts. — The statutes of the United States provide that " the practice, pleadings, forms, and modes of proceeding in civil causes, other than equity and admiralty causes in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings, forms, and modes of proceeding existing at the time in like causes in the courts of record of the State within which such circuit or district courts are held, any rule of court to the contrary notwithstanding ; " and that, " in common-law causes in the circuit and district courts, the plaintiff shall be entitled to similar remedies, by attachment or other process, against the property of the defendant, which are now pro- vided by the laws of the State in which such court is held for the courts thereof." ^ The statutes of the United States also provide for the re- moval of a certain class of cases from the State courts to the Circuit Courts of the United States ; and as terms of these courts are held in this State, a work on Massachusetts practice would be incomplete which did not contain some notice of the organization and jurisdiction of the courts of the United States. § 2. Exclusive Jurisdiction of Supreme Court. — The Su- preme Court of the United States has " exclusive jurisdiction of all controversies of a civil nature, where a State is a party, expept between a State and its citizens, or between a State and citizens of other States, or aliens, in which latter case it has original, but not exclusive jurisdiction. It has exclusive jurisdiction of all such suits or proceedings against ambassa- U. S. Eev. St. § 914, 915. 16 242 UNITED STATES COURTS. [CH. XXIIL dors or other public ministers or their domestics or domestic servants, as a court of law can have consistently with the law of nations ; and original, but not exclusive, jurisdiction of all suits brought by ambassadors or other public ministers, or in which a consul or vice-consul is a party." ^ It consists of a chief justice and eight associate justices, any six of whom constitute a quorum.^ § 3. Appellate Jurisdiction. — An appeal lies to the Supreme Court of the United States from any final judgment or decree in the Circuit Court or District Court in cases of equity and of admiralty and maritime jurisdiction, arid in any civil action where the matter in dispute, exclusive of costs, exceeds the sum of five thousand dollars ; but no new evidence is re- ceived, and the judgment is only reversed or affirmed, except in cases of admiralty and prize cases.^ It is held that the Federal Constitution gives to the Su- preme Court of the United States appellate jurisdiction in all cases arising under the Constitution, laws, and treaties of the United States, in whatever court they may be decided, com- prising the State courts.* The essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already insti- tuted, and does not create that cause. This appellate juris- diction may be exercised in a variety of forms, and in any form which the legislature may choose to prescribe.^ The Supreme Court of the United States can exercise appellate jurisdiction in the class of cases of which original jurisdiction is delegated by the Constitution. The original jurisdiction does not exclude the appellate.® The rights of a bankrupt, under the bankrupt laws of the United States, in his property, may be enforced by his as- signee in the State courts ; and actions by such assignee, to recover property conveyed in fraud of the bankrupt laws, may be maintained in the State courts.^ 1 U. S. Bev. St. § 687. See U. S. * Cohens v. Virginia, 6 Wheat. 265, St. 1875, c. 77, § 1. 413. 2 U. S. Rev. St. § 673. 5 Story's Com. on Const. § 1761. 8 U. S. Rev. St. § 692. U. S. St. « Cohens v. Virginia, 6 Wheat. 265, 1875, c. 77, § 3. 413 ; Story's Com. on Const. § 1720. ■f Otis V. Hadley, 112 Mass. 100-105. § 7.] UNITED STATES COURTS. 243 Jurisdiction of the person will not be gained by the courts of a State in which the debtor does not reside, where no effectual attachment is made of his estate, and no personal service is made on him, by a mere appearance, by leave of the court, to move that the action be dismissed for want of jurisdiction. 1 § 4. Concurrent Jurisdiction. — There are various causes in which the State and Federal courts have concurrent juris- diction and in such cases the court that first takes jurisdic- tion cannot be interfered with by the other.^ When a proceeding in a Federal court is terminated, so that no cause is pending there, a State court, unless there is some special reason to the contrary, may have jurisdic- tion of a matter arising out of the same general subject, although, if the proceedings in the Federal court had not been terminated, the State court could not have had such jurisdiction.^ § 5. Conflicts as to jurisdiction occasionally arise in cases of such concurrent jurisdiction ; but in such matters the State courts are bound by the decision of the Supreme Court of the United States. The decision of that court is final on all questions of law within its jurisdiction, when properly brought before it. § 6. Mode of taking Appeal. — The mode provided by the statutes of the United States for the exercise of appellate jurisdiction by the Federal courts of decisions of the State courts is by a writ of error in actions at law and by appeal in suits in equity.* To give the court jurisdiction of the questions removed from a State to a Federal court by a writ of error, it must appear upon the record that the question stated was decided by the State court, and that it is a case within the jurisdic- tion of the Federal court. ^ § 7. Circuit Courts of the United States. — A circuit court is held by a justice of the Supreme Court allotted for the pur- 1 Wright V. Boynton, 37 N. H. 9. « U. S. Rev. St § 699, 709, 1003. 2 Ex parte Eobinson, 6 McLean, 355. ' Armstrong et al. v. Treasurer, 16 ' Day V. Gallup, 2 Wall. 97. Pet. 281 ; Phillips' Pr. 107. 244 UNITED STATES COURTS. [CH. XXIII. pose. The statute provides that "the chief justice and asso- ciate justices of the Supreme Court shall be allotted among the circuits by an order of the court." ^ § 8. Original and Concurrent Jurisdiction. — By a statute of the United States, approved March 3, 1875, c. 137, it was enacted that " the Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in: equity, when the matter in dispute exceeds^ exclusive of costs, the sum or value, of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties made or which shall be made under their authority, or in which the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different States, or a controversy between citizens of the same State, claiming lands under grants of different States, or a controversy between citizens of a State and foreign States, citizens or subjects." It has exclusive cognizance of all crimes and offences cog- nizable under the authority of the United States, except as otherwise provided by law, and concurrent jurisdiction with the district courts of the crimes and offences cognizable therein. But the statutes provide that " no person shall be arrested in one district for trial in another in any civil action before a circuit or district court. And no civil suit shall be brought before either of said courts against any person, by any original process or proceeding, in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process, or commencing such pro- ceeding, except as hereinafter provided ; nor shall any circuit or district court have cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assign- ment had been made, except in cases of promissory notes negotiable by the law merchant, and bills of exchange. And the circuit courts shall also have appellate jurisdiction from 1 U. S. Eev. St. § 606. § 11.] UNITED STATES COURTS. 245 the district courts under the regulations and restrictions pre- scribed by law." 1 § 9. The Judicial Districts of the United States are divided into nine circuits, corresponding to the number of judges in the Supreme Court. These circuits are subdivided into dis- tricts.^ In each district two circuits are holden annually by the circuit justices, or by the circuit judge, or by the district judge of the district, sitting alone, or by only two of the said judges sitting together. The first circuit includes the districts of Rhode Island, Massachusetts, New Hampshire, and Maine. The second circuit includes the districts of Vermont, Con- necticut, and New York. The limits of the several districts are given in the statutes.^ § 10. The United States are divided into judicial districts * and it is provided by statute that a district judge shall be appointed for each district, who shall reside in the district for which he is appointed.^ Each of the New England States constitutes one judicial district,^ and four terms of the court are held annually at stated times in each district.^ These terms are held by a single judge, and he also holds special courts in his dis- cretion. , § 11. Jurisdiction of District Courts. — Since the repeal of the bankrupt laws, the business of the districts courts of the United States is to a great extent maritime, admiralty, and criminal cases. These courts have jurisdiction of crimes and offences com- mitted on the high seas, except capital cases ; of suits for penalties and forfeitures under United States laws ; of suits at common law by the United States ; of suits in equity, to enforce internal-revenue taxes ; of suits under postal laws of the United States ; of admiralty causes ; proceedings in bank- ruptcy ; of suits by or against national banking associations ; of all suits by an alien for a tort in violation of the law 1 U. S. St. of 1875, c. 137, § 1. « U. S. Bev. St. § 551. 2 U. S. Kev. St. § 604. 6 U. S. Eev. St. § 531. 8 U. S. Kev. St. § 572, 604. ' U. S. Kev. St. § 672. * U. S. Kev. St. § 530. 246 UNITED STATES COURTS. [CH. XXIII. of nations or of a treaty ; and of suits against consuls or vice-consuls.^ § 12. The admiralty jurisdiction of the district courts of the United States has been held to extend to all cases arising upon waters actually navigable by vessels from the sea.^ This court is in session daily. Its proceedings are not according to the course of the common law. It is held to be a court of record for every class of cases.^ § 13. Removal of Cases. — The statutes of the United States provide for the removal from the State courts to the Circuit Court of the United States a certain class of cases for trial. They provide that " any suit of a civil nature, at law or in equity, now pending or hereafter brought in any State court, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which the United States shall be plaintiff or petitioner, or in which there shall be a controversy between citizens of different States, or a controversy between citizens of the same State, claiming lands under grants of different States, or a contro- versy between citizens of a State and foreign States, citizens or subjects, either party may remove said suit into the Circuit Court of the United States for the proper district. And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants actu- ally interested in such controversy may remove said suit into the Circuit Court of the United States for the proper district." * As to mode and proceedings for removal of such actions, see United States Statutes, 1875, c. 137. 1 U. S. Rev. St. § 563. s Brown v. Bridge, 106 Mass. 563. 2 The Propeller Genesee Chief, 12 * U. S. St. 1875, c. 137, § 2. How. 443 ; Conkling's Treatise, 279. § 1.] PLEADING. 247 CHAPTER XXIV. PLEADING. PART FIRST. § 1. General Rules of Pleading in Common-La'w Actdons. — Although pleading is an independent branch of the law, it is so intimately connected with practice, that any work on that subject would be very incomplete which did not treat to some extent of pleading. Pleading is defined by Mr. Chitty to be a statement, in logical and legal form, of the facts which constitute the plain- tiff's cause of action or the defendant's ground of defence. It is the formal mode of alleging that on record which would be the support or the defence of the party in evidence. It is one of the first principles of pleading that facts only need be stated, which must be done for the purpose of informing the court, whose duty it is to declare the law arising upon those facts, and of apprising the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it.^ The principal rule as to the mode of stating the facts is, that they must be set forth with certainty, by which term is signified a clear and distinct statement of the facts which constitute the cause of action or ground of defence ; so that they may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the court who are to give judgment.^ It is a maxim in pleading that everything shall be taken most strongly against the party pleading, or rather, that if the meaning of the words be equivocal, they shall be con- l 1 Chitty, PI. 213. 2 j Chitty, PI. 233. 248* PIEADING.' [CH. JSCIV.. strued most strongly against the party pleading them ; for it is to be presumed that every person states his case as favor- ably to himself as possible. This maxim must, however, be received with some qualij&cations, for the language of plead- ing is to have a reasonable construction ; and when an ex- pression is capable of different meanings, that shall be taken which will support the declaration, and not the other which would defeat it.^ § 2. Divisions of Pleading. — The parts of pleading are divided under two heads ; first, the regular, being those which occur in the ordinary course of a suit ; and, second, the irregular or collateral, being those which are occasioned by mistakes in the pleadings on the other side. The regular parts are : first, the declarations or count ; second, the plea or answer, which includes demurrers and pleas or answers in abatement or in bar of the action ; third, the replication ; fourth, the rejoinder ; fifth, the surre- joinder ; sixth, the rebutter ; seventh, the surrebutter ; and eighth, pleas puis darrein continuance, where the matter of defence arises during the pendency of the suit. The irregular or collateral parts of pleading are: first, demurrers to any part of the pleading above mentioned ; second, demurrers to evidence given at trials ; third, bills of exceptions ; fourth, pleas in scire facias ; and fifth, pleas in error .2 § 3. Regular Parts of Pleadings. — In this treatise the writer is necessarily confined to a very brief consideration of the regular parts of pleading : and first it seems proper in this place to explain the change in the common-law forms of pleading in Massachusetts by the act of 1852, known as the Practice Act. These are changes of form rather than of substance. They are intended to simplify the pleadings, avoid technical issues, and in the most direct manner to reach the issues of law or of facts to be tried. The act does not change the general rules and principles of pleading at common law, except so far as is specified in the act. With these exceptions, the rules 1 1 Chitty, PI. 237. 2 1 Chitty, Pi. 239. § 6.] PLEADING. 249 of pleading at common law are applicable to the system of pleading in Massachusetts, established by the Practice Act. § 4. Division of Actions. — The first section of the act defines the forms of actions under the new system. It pro- vides that " there shall be only three divisions of personal actions : — " First. Actions of contract, which shall include those heretofore known as actions of assumpsit, covenant, and debt, except for penalties. " Second. Actions of tort, which shall include those here- tofore known as actions of trespass, trespass on the case, trover, and all actions for penalties. " Third. Actions of replevin." No change has since been made in this division of actions.^ § 5. Changes made by the Practice Act. — By this change in the system of pleading the old forms of declaring in actions of assumpsit, covenant, and debt, except for penalties, are abolished ; and in all cases where these were the proper remedy previous to the change, the action of contract is sub- stituted in their place. The forms of declaring before used in actions of trespass, trespass on the case, trover, and all actions for penalties, are abolished, and are superseded by the action of tort.^ Under these new forms of actions no averment need be made in the declaration, which the law does not require to be proved. The substantive facts necessary to constitute the cause of action may be stated with substantial certainty and without unnecessary verbiage. The word "contract" is here used in its broadest sense, reaching almost every form of obligation to pay money arising from express and implied promises, and including judgments of courts. The action of tort is equally comprehensive, and is the proper remedy for all wrongs for which there is a remedy, by personal actions at common law. § 6. Declaration, what it must state. — Although by the Prac- tice Act the facts may be briefly stated, yet all the facts must 1 Pub. St. c. 167, § 1. ^ lb. 250 PLEADING. [Cri. XXIV. be stated which are necessary to constitute the cause of ac- tion.^ In the case of Read v. Smith,^ the court say: " The principal changes made by that act in respect to declarations, were : (1.) It adopted a suggestion which was originally made by Mr. Long to the British commissioners, that the number of personal actions be reduced to two. (2.) That no averment need be made which the law does not require to be proved. As incident to these changes, some other formal changes were made. But the act distinctly requires that the substantive facts necessary to constitute the cause of action shall be set forth with substantial certainty. § 7. The Principles of Pleading are not changed. — Though the statutes change the forms of pleading and dispense with technicalities, it is still important in framing declarations and answers, so as to present causes properly for trial, that the principles of special pleading should be carefully regarded, " The act does not require that the plaintiff shall set out specifically or in detail the elements or grounds of damages which he seeks to recover, but only the substantial facts necessary to constitute the cause of action. Under the gen- eral allegation of damage the plaintiff has a right to recover all the damages which are the natural and necessary conse- quences of the cause of action set forth in the declaration. In this respect the rule at common law remains unchanged. It is only where special or peculiar damages are claimed that it is necessary to aver them specifically." ^ More than one count may be inserted in the declaration for each cause of action.* The Practice Act has not changed the rule of law which requires the plaintiff in an action for slander to allege the extrinsic facts or circumstances which are necessary to give significance to the words spoken, and render them intelligible to the court and jury in the sense in which they were spoken as importing a charge of crime.^ The declaration must set forth substantially the words 1 HoUis V. Richardson, 13 Gray, 392. * Lovett v, Salem & South Danvers 2 1 Allen, 519-521. R, R. Co., 9 Allen, 557. 8 Prentiss v. Barnes, 6 Allen, 410, 41 1. 6 Tebbetts v. Goding, 9 Gray, 254. § 8.] PLEADING. 251 relied on as slanderous : a mere statement of their effect and purport is not sufficient.^ Innuendoes are not necessary.^ A count in contract may be joined with a count in tort, when . it is deemed doubtful to which class a particular action belongs.^ A declaration on an agreement within the statute of frauds need not allege that it was in writing.* § 8. What is the commencement of a suit is often a ques- tion of importance. Ordinarily, the making of a writ is the commencement of the action ; in some special cases the ser- vice of the writ is the commencement of the action, but never later.5 The writ may be considered as made at any moment on the day of its date which will most accord with the truth and justice of the case,^ or at any time it was in fact designed by the plaintiff for actual use, where the justice of the case requires it.'^ It is held to be no objection to a suit that the plaintiff 's right of action was not perfected before the issuing of the writ, if it became perfected before the service. In such case the service is regarded as the commencement of the suit.^ To save the Statute of Limitations, the taking out of the writ, if duly prosecuted, is regarded as the commencement of the action.® If a writ is made provisionally, and is delivered to an officer with instructions not to serve it until after a certain time or the happening of a certain event, the action is not commenced until that time or the happening of that event.^" The actual time of suing out a writ may be shown by parol evidence.^^ 1 Lee V. Kane, 6 Gray, 495. Johnson v. Farwell, 7 Greenl. 370 ; Day 2 Chenery v. Goodrich, 98 Mass. 224- v. Lamb, 7 Vt. 426. 228. " Hall V. Peck, 10 Vt. 474 ; Hawley 8 Hulett V. Pixley, 97 Mass. 29. v. Soper, 18 Vt. 320. 4 MuUaly v. Holden, 123 Mass. 583. « Allen v. Mann, 1 D. Chip. (Vt.) 6 Wheatland v. Lovering, 10 Gray, 94 ; Day u. Lamb, 7 Vt. 426 ; Gardner 16; Gardner!). Webber, 17 Pick. 407. v. Webber, 17 Pick. 407; Bunker u. 6 Badger v. Phinney, 15 Mass. 359, Shed, 8 Met. 150. 364. 1° Seaver v. Lincoln, 21 Pick. 267. ' Swift V. Crocker, 21 Pick. 241, 242 ; " Parkman v. Crosby, 16 Pick. 297. 252 PLEADING, [CH. XXTV. As to when an action is prematurely brought, see cases in note.i The filing of a claim in set-off by a defendant is equivalent to the commencement of a suit, so far as regards the Statute of Limitations.^ Where it appeared upon the record that the writ issued before the cause of action accrued, a special demurrer, for that cause, was sustained.^ Such a defect would be bad upon general demurrer also, nor would it even be cured by ver- dict.* But a verdict will not be set aside on a motion for a new trial because the suit was commenced before the cause of action accrued.^ If the date of the writ be not the true time of its issuing, the real time, if important, may be shown. In such a case, however, it does not seem to be indispensa- bly necessary to prove an actual delivery of the writ to the officer. It is sufficient if it be shown that it was actually made out, and sent to the officer by mail or otherwise, or left at his house or elsewhere, for the purpose of being executed ; or that some act was done evincing a positive and unequivo- cal intention to have it served.^ § 9. Who should be Plaintiffs. — The first rule to be con- sidered in pleading is that which relates to the persons who are to be the parties to the action. The general rule of the common law is, that the person in whom the legal interest is vested must be the plaintiff, and the person who is subject to the legal liability should be the defendant. Though in general there is but little difficulty in determining who should be made the parties to an action, yet, in the application of the rule, difficulties frequently occur, as there are many rules relating to the joinder of persons, both as plaintiffs and de- fendants. If a chose in action is assigned, as a general rule the assig- ^ Butler V. Kimball, 5 Met. 94 ; Estes ' Lowiy v. Lawrence, 1 Caines, 69. V. Tower, 102 Mass. 65 ; Grimes v. Briggs, * CheetBam v. Lewis, 3 Jobns. 42. 110 Mass. 446. 6 Qrygier v. Long, 1 Johns. Cas. 393. ^ Hunt V. Spaulding, 18 Pick. 521. 6 Burdick v. Green, 18 Johns. 14. § 11.] ' PLEADING. 253 nee cannot maintain an action in his own name, but must sue in the name of the original party in interest.^ There are, however, some exceptions to this rule. Thus, an action on a negotiable promissory note or bill of exchange, duly trans- ferred by the indorsement of the payee, may be brought in the name of the indorsee. So executors and administrators^ must sue in their own names, describing the capacity in which they sue claims due to the deceased parties whom they represent.^ Besides the exceptions at common law to the rule as to who may be parties to an action as plaintiffs, there are other exceptions created by statute. An assignee of an insolvent debtor, under the insolvent laws of the State, may sue in his own name claims due to the insolvent debtor. A purchaser of a chose in , action due to such insolvent debtor from such assignee also may sue it in his own name.* A married woman may sue and be sued in the same man- ner and to the same extent as if she were sole, but the statute does not authorize suits between husband and wife.^ § 10. Joinder of Plaintiffs. — In commencing actions at law, care should be taken to join the proper persons as plaintiffs and defendants, and to give in full the name of each and his place of residence. Any mistake in this respect may gen- erally be amended, but that is liable to be attended with cost and delay. When two or more persons sue as a partnership, their names should first be given with their places of residence, and then the name of the partnership and its place of business stated. The same rules should be observed in describing the defend- ants when sued as a partnership. A corporation must sue and be sued by its corporate name, though a very minute variation is not material.® § 11. Joinder of Defendants. — In describing the defend- 1 1 Chitty, PI. 16. fi Pub. St. c. 147, § 7. " 1 Chitty, PI. 19. ^ Sherman v. Conn. E. Bridge, 11 = 1 Chitty, PI. 20. Mass. 338. * Pub. St. c. 157, § 51. 254 PLEADING. [CH. XXIT. ants in actions, the same rule should be observed as in de- scribing the plaintiffs. When two or more persons are jointly liable to pay a sum of money or do some act, the action on such obligation must be against them all. If the obligation be joint and several, the action may, at the option of the plaintiff, be against them all jointly, or a separate action may be brought against each. By the common law, when the contract was several, the parties could not be joined as defendants ; but by statute, in Massachusetts, "persons severally liable upon contracts in writing, including all parties to bills of exchange and promis- sory notes, may all or any of them be joined in the same action. The declaration may include one count only, de- scribing the several contracts of the defendants when the same contract was made by each ; or different counts, de- scribing 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 judgments according to the several contracts of the defendants, and issue one or more executions, as the case may require." ^ The only case in which this statute allows several judg- ments upon different contracts in one action is when they all arise out of one written instrument, or upon one bill of ex- change or promissory note.^ In an action against two persons, one of whom had made an agreement with the plaintiff, under seal, and the other by a separate agreement not under seal, but on the same paper and made the same day, guaranteeing the performance of the agreement of the party to the agreement under seal, it was held that the principal and guarantor could not be joined in the same action.^ Where one contracts in writing with three persons to give a bill of sale of two thirds of a vessel to two of them, and of 1 Pub. St. c. 167, § 4. 8 Wallis v. Carpenter, 13 Allen, 19. 2 Leonard v. Bobbins, 13 Allen, 217- 220. § 12.] PLEADING. 255 one third to the other, and in pursuance of the contract does convey two thirds, this is not a severance of the cause of ac- tion, and a suit may be maintained for the price against the whole.^ If an action is brought against a railroad corporation and their conductor jointly, for an assault committed by the latter in putting a passenger out of their cars, and a verdict is re- turned against the corporation and in favor of the conductor, the joinder of the defendants is no ground of exception by the corporation.^ Where one is liable to two or more on a parol contract, and settles with either for his part of the claim, the remaining promisee may sue without joining the others ; such settle- ment with one being a severance of the cause of action .^ No agreement of the promisees to sever their interest will enable them to sue separately, unless the promisor consents thereto, and to be accountable to each for his portion.* § 12. The declaration is a specification, in a methodical and legal form, of the circumstances which constitute the plain- tiffs cause of action. The general' requisites or qualities of a declaration are, first, that it should correspond with the process ; secondly, that it contain a statement of all the facts necessary in point of law to sustain the action, and no more ; thirdly, that these circumstances be set forth with certainty and truth.^ A declaration may contain as many counts as the case requires, and the jury may assess damages — entire or distinct damages — on all the counts. It is often important to set forth the plaintiff's cause of action in various shapes, in differ- ent counts, so that if he fail in the proof of one count, he may succeed in another.^ At common law, there are various forms of declarations in personal actions ; namely, in assumpsit, debt, covenant, tres- pass, trespass vi et armis, trover, and replevin. 1 Marshall «. Smith, 15 Me. 17. * Peters v. Davis, 7 Mass. 257; Aus- s Moore w. Fitchburg Railroad, 4 tin v. Walsh, 2 Mass. 405. Gray, 465. ^ 1 Chitty, PI. 240. 8 Austin V. Walsh, 2 Mass. 405 ; Ba- » 1 Chitty, PI. 409. ker V. Jewell, 6 Mass. 460. 256 PLFADING. [CH. XXIV. As before stated, the.se forms are changed in Massachusetts, but the general principles applicable to them are applicable to the Massachusetts forms. The forms of declarations at common law are useful to the pleader under the Massachusetts system for suggestions as to what a declaration should contain, though set out in a differ- ent form. No form of declaration is required by our statutes. A few forms of declarations are given as illustrations of a proper mode of declaring, and the statutes provide that those forms " may be used," but require only that the substantive facts necessary to constitute the cause of action shall be stated with substantial certainty.^ § 13. Declaratioiis in Massachusetts Practice. — The Public Statutes prescribe the forms of declarations as follows : " The form of declaring in personal actions shall be according to the following particulars : — " First. The action shall be named in conformity with the division specified " in section 1 of chapter 167 of the Public Statutes. " Second. No averment need be made which the law does not require to be proved. "Third. The substantive facts necessary to constitute the cause of action may be stated with substantial certainty, and without unnecessary verbiage. " 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 the count on an account annexed, as hereinafter provided. " Fifth. Any number of counts for different causes of ac- tion belonging to the same division of actions may be inserted in the same declaration. 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 1 Pub. St. c. 167, § 94. § 14.] PLEADING, 257 count in contract may be joined with a count in tort, averring that both are for one and the same cause of action. " Sixth. The common counts shall not be used unitedly, but each one of those counts may be used in the form herein- after prescribed, when the natural import of its terms correctly describes the cause of action. " 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. " Eighth. In the action of trover, the form prescribed in the statute shall be used.^ " Ninth. All written instruments except policies of insur- ance shall be declared on hy setting out a copy or such part as is relied on, or the legal effect thereof, with proper aver- ments to describe the cause of action. If the whole contract 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 order, be part of the record, as if oyer had been granted of a deed de- clared 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. " Tenth. When a bond, or other conditional obligation, con- tract, 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 conditions prece- dent to the right of the party relying thereon shall be averred to have been performed, or his excuse for the non-perform- ance thereof stated." ^ § 14. The Writ need not contain the Declaration. — In ac- tions of contract and actions of tort, unless an arrest of the person is made, the writ need not contain a declaration, nor 1 Pub. St. c. 167, §2,92. * lb. 17 258 PLEADING. [CH. XXIV. any description of the cause of action in which it is intended to declare, other than the name of the form thereof. § 15. " The declaration may be filed in the clerk's office on or before the day to which the writ is returnable, unless an arrest of the person is made. If there is an attachment of property, the declaration and bill of particulars, when neces- sary, if not inserted in the writ, must also 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. " If no declaration has been inserted in the writ or filed in the clerk's office pursuant to the preceding section, it will be a discontinuance of the action, and the defendant or trus- tee may have judgment for costs : Provided, that the court may at any time during the return term of the writ, for good cause shown and upon suitable terms, allow the plaintiff to file his declaration.^ " § 16. Bill of Particulars. — In actions of contract, when either of the common counts is used, the plaintiff must file a bill of particulars with his writ when the action is entered. The items in such bill must be numbered consecutively, and it will be deemed to be part of tlie record, and be answered or replied to as such. ^ As to bill of particulars, see post. § 17. How statutes are referred to. — A general statute may be referred to in declarations or other pleadings by specifying the chapter containing the provision referred to, or by mentioning in general terms the subject of the statute, or by referring to it in such manner as shall indicate with suf- ficient certainty the statute intended. In actions of tort for breaking and entering the plaintiff's close, the place of the alleged trespass must be designated in the declaration by name, abuttals, or other proper de- scription.^ § 18. Common Counts not to be used unitedly. — The stat- ute provides that the common counts shall not be used 1 Pub. St. c. 167, § 7, 8, 9. s Pub. St. c. 167, § 5, 6. 2 Pub. St. c. 167, § 10. § 20.] PLEADING. 259 unitedly. What are the common counts here referred to ? In Stearns v. Washburn,^ Metcalf, J., said : " The common counts we understand to be those which were formerly- termed counts in indebitatus assumpsit, as for money had and received, for monej"^ lent, money paid, for goods sold and delivered, for goods bargained and sold." An account an- nexed is held to be one of the common counts. This decision appears to include within the term " common counts " the first twelve counts, forms of which are given in the Public Statutes, c. 167, § 94. § 19. Pleas in bar at common law are calculated to show either that the plaintiff never had any cause of action, or, if he had, that it is discharged by some subsequent matter. Considered in reference to the declaration, they are in denial or confession and avoidance of the cause ; or they conclude the plaintiff by matter of estoppel. When at common law the plaintiff means to deny the whole charge contained in the declaration, he should plead the general issue. But when the defence consists of some matter of law, the defendant may plead it specially or give it in evidence under the general issue.^ Previous to 1836 the common-law pleas in bar were used in Massachusetts. In that year an act was passed providing that in every civil action, thereafter to be tried in the Supreme Judicial Court, and Court of Common Pleas, all matters of law or fact in defence of such action might be given in evidence under the general issue, and that no other plea in bar should be pleaded.^ § 20. By the Practice Act of 1852 " special pleas in bar as formerly used are abolished, and the general issue in all ex- cept real and mixed actions, and in place thereof the defend- ant is required to file an answer to the declaration. 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." * 1 7 Gray, 187, 188. ' St. of 1836, c. 273; Act of 1852, M Tidd'sPr. 643; 1 Chitty, PI. e. 312, § 29. 469. 4 St. of 1852, u. 312, § 12. 260 PLEADING. [CH. XXIV. That provision of the statutes has not been changed.* § 21. Answers required by Statute. — Under the present system of pleading in Massachusetts, the defendant is now required to file an answer instead of a plea in all actions except real and mixed actions. And the statute provides that, " 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 ignorance of the fact, so that he can neither admit nor deny, but leaves the plaintiff to prove the same." ^ § 22. A general denial of each and every allegation in the plaintiff's declaration is held to be a sufficient answer, as it puts in issue every fact, the burden of proof of which rests on the plaintiff.^ This rule is held not to apply to an action against stock- holders of a corporation to recover of them the amount of a judgment previously recovered by the same plaintiff against the corporation.* The defendant need not in his answer deny or make any averment regarding any fact necessary to the maintenance of the plaintiff's action, but not alleged in his declaration.^ § 23. Answer to Common Counts. — The statute provides that " in answering the common counts and the count on an account annexed, the defendant shall answer specifically every item contained in the bill of particulars or account an- nexed, but he may make one and the same allegation or denial concerning any number of items to which such allega- tion or denial is applicable, specifying the number of the items thus answered together when less than the whole. If the defendant denies that an item is due or payable, or that he owes the plaintiff as alleged, he shall state all the substan- tive 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." ® 1 Pub. St. c. 167, § 15. 6 Jones v. Andover, 10 Allen, 18, 22 ; 2 Pub. St. c. 167, § 17. Tarbell v. Gray, 4 Gray, 444. » Davis V. Travis, 98 Mass. 222. " Pub. St. c. 167, § 18. * Taylor v. New England Coal Min- ing Co., 4 Allen, 577. § 24] PLEADING. 261 The allegation in an answer of a defendant, that he can neither admit nor deny a specific allegation in the declara- tion, but leaves the plaintiff to prove the same is held to be a denial of the plaintiff's allegation and to put it in issue.* § 24. Answer must be Specific and Clear in Terms. — In all cases in which a denial is made by answer, affidavit, or other- wise, concerning a time, sum, quantity, or place alleged, the party denying must declare whether such denial is applicable to every time, sum, quantity, or place, or not ; and if not, what time, sum, quantity, or place he admits.^ The statutes provide that " 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 limitations, 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."^ The rule applicable to this section of the statutes is stated by Morton, J., in case of Marvin v. Mandell,* to be "that any matter in discharge or avoidance of a debt, once existing, must be specially pleaded, but any matter which shows that the debt never existed may be given in evidence under a gen- eral denial." An allegation in an answer " that the defend- ant will offer evidence tending to prove " certain facts is not sufficient to authorize him to offer proof of such fact. The fact must be averred positively.^ So also when the defendant in his answer averred that " if it shall appear " that the plaintiffs did, &c., " that it will also appear," &c., it is held that such answer is not a clear and precise allegation of the matters so averred, and that the defendant could not be allowed to prove such matters.® To give a defendant a right to avoid his contract for ille- gality, such illegality must be specified in his answer.' See post, c. 44, as to answers. 1 Warren v. Ferdinand, 9 Allen, 357, ^ Cassidy v. Farrell, 109 Mass. 397, 358. 398. 2 Pub. St. c. 167, § 19. « Suit v. Woodhall, 116 Mass. 547, » Pub. St. c. 167, § 20. 549. * 125 Mass. 562, 563. ' Eice v. Enwright, 119 Mass. 187. 262 PLEADING. [CH. XXIV. § 25. The statute of frauds cannot be relied on in defence of an action unless set up in the answer.^ When the defence is a special contract the answer must so allege.2 See St. of 1883, c. 223, § 14. § 26. Signatures to written instruments declared on or set forth as a cause of action, or as a ground of defence or set-off, are 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.* This does not apply to the signature of a witness to an attested promissory note.* In an action upon a promissory note the defendant's omis- sion to deny his signature as required by the statute does not prevent him, under a general denial in his answer, from deny- ing that he made the note, from contending that the note has been materially altered since he signed it, nor relieve the plaintiff from the burden of proving that the note remained in the same condition as when the signature was affixed.^ § 27. A Second Answer not to be filed •without Leave. — A de- fendant who has filed one answer to a declaration cannot file a second without leave of court, even within the time allowed by law for filing answers.^ § 28. Time to file Answer. — The rules of court require that " the answer, and, in real and mixed actions, the plea, shall be filed within thirty days from the return day, unless the court shall by special order restrict or extend the time ; and if the answer or plea be not so filed, a default may at any time be entered by order of the court on motion of the plaintiff." '' § 29. Pleas Puis Darrein Continuance. — At common law, if any matter of defence arise during the pendency of the suit, of which the defendant could not have availed himself at its 1 Middlesex Company v. Osgood, 4 ' Cape Ann National Bank v. Bums, Gray, 447. 129 Mass. 596. 2 Reed v. Scituate, 7 Allen, 141. » Hulbert v. Comstock, H Gray, 14. s Pub. St. i:. 167, § 21. 7 Rules of S. J. Court, 6 ; Rules of * Holden v. Jenkins, 125 Mass. 446. Superior Court, 13. § 30.] PLEADING. 263 commencement, he may plead it to the further maintenance of the suit ; as if the plaintiff give the defendant a release.^ These pleas are termed pleas puis darrein continuance, or pleas since the last adjournment, and may be in abatement or in bar ; but judgment on the former is final, as well upon de- murrer as upon verdict, if a plea in bar had before been filed, for in pleas puis darrein continuance there can be no judg- ment to answer over.^ This plea is a waiver of all former pleas ; * and, if the matter pleaded be found against the defendant, it is a con- fession of the whole declaration.* It may be pleaded at any stage of the cause, before the jury have returned their verdict ; even after they have left the court to consider of it.^ The offer of this plea is a matter of right, it is said, and the court cannot refuse to receive it. It cannot, however, be pleaded after a demurrer, nor after a verdict,^ nor after referees have reported ; for a reference is a substitute for a trial by jury.'' The proper course for the plaintiff, if he wish to avail him- self of the objection, that the plea was not pleaded in season, is hj motion to set it aside, and not by demurrer ; ^ and it rests in the discretion of the court to receive it or not, even after more than one term, between the time that the matter of the plea arose and the coming in of the plea ; and this dis- cretion is governed by extrinsic circumstances, which cannot appear on the face of the plea.^ § 30. Great certainty is required in pleas puis darrein con- tinuance. It is not only necessary to aver that the fact relied on happened since the last continuance, but the time and 1 Bull. N. p. 310. 6 Broome v. Beardsley, 3 Caines, 172 ; 2 1 Chitty's PI. 658 ; Eenner v. Mar- 1 Arch. Pr. 200, and cases cited. shall, 1 Wheat. 215. '1 Paine & Duer, Pr. 508, and cases 8 1 Salk. 178, pi. 5 ; 1 Chitty's PI. cited. 660; 2 Tidd's Pr. 849. 8 i Wend. 228. * 3 Bl. Com. 317. 9 \ Pgine & der, Pr. 509, and cases 5 2 Esp. N. P. 577 ; Broome v. cited. Beardsley, 3 Caines, 172; Bull. N. P. 310; 1 Chitty's PI. 637. 264 PLEADING. [CH. XXIV. place should be specified, and the same rules are to be ob- served as in other pleas, as to averments, proferts, &c.^ These pleas must be made and filed in the manner which has been stated of pleadings generally. They are not re- quired to be verified by affidavit.^ The defendant should take advantage of the new matter to be pleaded by this plea as early as possible after it arises, or becomes known to him ; viz., early at th.e next term of the court.^ The statutes provide that " an answer or replication may allege facts which have occurred since the institution of the suit, and the plaintiff and defendant may be allowed by the court to make a supplemental declaration, answer, or replica- tion, alleging material facts which have occurred or come to the knowledge of the party since the former declaration, answer, or replication." * § 31. A replication is the reply of the plaintiff to the defend- ant's plea or answer. After the answer of the defendant is filed, the statute pro- vides that no further pleading shall be required, except by order of the coui-t. But the plaintiff may demur to the answer ; and if the answer contains any new matter in avoid- ance of the action, such new matter shall be deemed to be denied by the plaintiff ; or the court may, on motion of the defendant, require the plaintiff to reply thereto, and state whether he admits or denies any, and if, any, what part thereof. The plaintiff may, if he pleases, without such order, at any time before trial, file a replication to the answer, clearly and specifically stating any facts in reply to the new matter therein.^ 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 1 2 Tidd's Pr. 850. 4 Pub. St. c. 167, § 26. 2 Howe's Pr. 432. 6 Pnb. gt. g. jgr, § 24, 25. ' 3 Bl. Com. 316. § 33.] PLEADING. 265 of the other party. But no defect of form merely, either in the declaration or subsequent allegations, shall be assigned as a cause of demurrer. The opposite party is deemed to join in demurrer if he do not amend. After one trial in which the jury disagreed, the plaintiff was allowed to file a replication before another trial.^ § 32. Profert and Oyer. — By a rule of pleading at common law, if either party claims or justifies under an instrument under seal, which is mentioned in his pleadings, and which ought properly to be either in his possession or under his con- trol, he is generally bound to make profert in curia of it, un- less he can allege and prove that the instrument has been lost or destroyed, or is in the hands of his opponent, or that the plaintiff cannot produce it in court.^ § 33. The form of pleading at common law is in these words : " Which said writing obligatory, sealed with the seal of the said defendant, the said plaintiff now brings here into court," &c.^ If the plaintiff cannot produce the instrument declared on, he must plead the excuse for omitting to plead the profert. If profert is made by either party, the other party may de- mand oyer.* ^ Oyer is always demanded upon motion to the court, which should properly be in writing. An entry of the motion, and also of the order which the court may pass upon the same, is made under the action upon the docket.^ The plaintiff is not bound, according to the English prac- tice, to grant oyer within any limited time after it has been demanded;^ but it is for his interest to grant it without delay, the defendant being entitled to as many days for pleading after oyer has been given as he had when he de- manded it.^ Praying oyer of a bond does not entitle the party to oyer 1 Burke u. Miller, 4 Gray, 114. i* 1 Chitty's PI. 415 ; Powers w. Ware, 2 Sell. Pr. 26 ; 1 Chitty's PI. 365 ; 2 Pick. 451. Bender v. Sampson, 11 Mass. 42. ^ Howe's Pr. 420. 3 1 Chitty's PI. 415. « Arch. Pr. 217. ' Arch. Pr. 130. 266 PLEADING. [CH. XXIV. of the condition, unless he prayed for that likewise ; for they are considered as distinct instruments.^ The want of oyer of the condition of a bond is fatal in a plea of performance,^ since the court can take no notice of the condition, unless the same be spread upon the record by oyer. Courts will, upon motion, order a copy of the instrument on which the action is founded, whether it be a policy of insurance, bill of exchange, promissory note, or other special undertaking, whether alleged or not to be in writing, to be delivered to the other party or to his attorney. The rule laid down by Lord Mansfield is, that whenever the defendant would be entitled to a discoverj'^ in equity, he should have it in a court of law.^ So, where the defendant has in his possession a paper essen- tial to the plaintiff's case, an inspection of the same has been granted by the court ; as in the case of an indenture, where only one has been executed ; * or as in the case of a partner- ship deed in the possession of one of the partners.® § 34. Books and Papers. — As a party is not entitled to oyer of an instrument declared upon, which is not under seal, there was formerly no mode by which the plaintiff could be compelled to produce it, until the time of trial. A statute of the United States ® gives to their courts the power to com- pel the production of books and papers, or, in case of refusal, to order a nonsuit or default. But courts of common law will not compel the defendant to plead, until a copy of the instrument upon which the action is founded has been de- livered to him.'^ § 35. Imperfect Oyer. — If there be a variance between the declaration and the oyer, the defendant may demur specially on that ground ; but he cannot take advantage of it at the trial.^ But of a variance between the deed and oyer, or 1 Jevens v. Harridge, 1 Saund. 9 5, < Underwood v. Miller, I Taunt. 387. "•I- ■• ^ Morrow v. Saunders, 1 Brod. & 2 United States v. Arthur, 5 Cranch, Bing. 318. 257. 6 u. S. Rev. St. § 724. ^ 2 Stark. Ev. 731, and the cases ' Howe's Pr. 423. cited. 8 James v. Walruth, 8 Johns. 410. § 36.] PLEADING. 267 between the deed and declaration, he may take advantage, under the plea of non est factum.} And if an imperfect oyer be given, the defect is cured by pleading over. A small variance between the oyer of a bond and a declaration is not regarded ; as where in the oyer the words were "• or delay," and in the declaration they were " or other delay," the vari- ance was held to be immaterial.^ After oyer is granted, it is optional with the party whether to set it forth in his plea or not.^ But if he undertake to set it forth, and do not set it forth correctly, or omit to set forth the whole deed, the plaintiff may either sign judgment as for want of a plea, or he may pfay that the deed be enrolled, and demur.^ But this must be understood as extending to cases only where the whole deed relates to the matter of action ; for if it contain other matters besides those which are to be performed by the party craving oyer, it seems to be unneces- sary to set out the irrelevant matter, but it is sufficient for him to set out verbatim the whole of the matters which relate to the case in issue.^ The party praying oyer of a deed may afterwards omit to set it forth in his plea, and may plead the general issue, or any other plea to the merits, as if oyer had not been prayed.® If the party craving oyer of a deed do not afterwards set it forth in his plea, the other party, in his replication, &c., may, if he wish to have it set out, pray that the deed be enrolled, and then set it forth, or at least, such parts of it as relate to the matter in dispute.' § 36. Proceedings and Judgment. — The judgment of the court upon the demand of oyer, is, either that the party de- manding it have oyer, or that he plead without it.* If oyer be granted, the rule in the English practice is for the party of whom it is demanded to make out a copy of the 1 Waugh V. Bussell, 5 Taunt. 707 ; 5 Wallace v. Camberland, 4 T. E. Howellw.Richards, 11 East, 633; Goldie 370; Com. Dig. tit. Pleader, P. 1 ; 1 V. Shuttleswonh, 1 Camp. 70. Saund. 317, n. 2 ; 2 Arch. Pr. 218. 2 Henry D. Brown, 19 Johns. 49. ^ Weavers' Company o. Forrest, 2 8 Weavers' Company a. Forrest, 2 Stra. 1241. Stra. 1241. ' Com. Dig. tit. Pleader, P. 1. 4 Wallace v. Cumberland, 4 T. E. » 2 Lev. 142 ; 1 Saund. 9 b; 2 Saund. 370; Com. Dig. tit. Pleader, P. 1. 46 6, n. 7. 268 PLEADING. [CH. XXIV. instrument of which oyer is demanded, and carry it to the opposite party, who must pay for the copy.^ The more cor- rect proceeding here would seem to be, since the prayer of oyer is addressed to the court, for the party of whom it is demanded to surrender the deed into the hands of the clerk of the court, who will prepare a copy, and the party demand- ing oyer will be entitled to it, by paying to the clerk the fees of copying ; for when a deed is declared on, or pleaded with a profert, it is, by intendment of law, in the actual possession of the court, and a copy would, therefore, most properly come from the clerk.^ § 37. No Profert required by Public Statutes. — The statutes of Massachusetts provide that " all written instruments, ex- cept policies 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 describe the cause of action. If the whole contract 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 declara- tion. 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." * And written instruments when relied on in an answer or subsequent allegation are required by statute to be set out or copies of the originals filed in the manner prescribed as to written instruments declared, in the statute last quoted.* § 38. Alternative Allegations in Fleas. — Either .party maj' 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. The allegations and denials of each party are so construed by the court as to secure as far as possible substantial pre- 1 1 Sell. Pr. 264 ; 2 Arch. Pr. 217. « Pub. St. c. 167, § 2. 2 See Vin. Abr. tit. Fails, M. a. 12. * Pub. St. c. 167, § 22. § 38.] PLEADING. 269 cision 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, is deemed to be admitted.^ An immaterial fact alleged in a declaration is not admitted, because not denied.^ So if the declaration omits to allege a material fact, it will not be considered admitted by not being denied.^ § 39. Issue. — From the pleadings thus made and filed, at their termination, arises the issue of fact or law. There is no other formal making of the issue, the pleadings as filed con- stituting the only record of the issue, for the purposes of the trial. The next step, therefore, after the pleadings are com- pleted, is the trial, which, together with the subjects of ver- dicts, judgments, and costs, will be considered under their respective heads.* § 40. Pleadings in Police and District Courts, &c. — As a general rule, the pleadings in an action must be in writing ; but in Massachusetts, in all civil actions in police, municipal, and district courts and before trial justices, the trial " may be had at the election of the defendant, either upon pleadings in writing, or the defendant, without filing any written plea, may orally deny the plaintiff's right to maintain his action, — in which case an entry shall be made on the record that the defendant appears and denies the plaintiff's right to maintain his action, and puts himself on trial, or in words to that effect. Upon the issue so joined a trial may be had, and any matter may be given in evidence by either party which would have been admissible if the defence had been made under any plea in bar." ^ District and municipal courts may in all cases order the defendant to file an answer.^ A defendant may avail himself of a tender pleaded orally, but he must perfect his tender by bringing the money ten- dered into court.^ See post, chapter on Tender. ' Pub. St. c. 167, § 27, 28, 29. » Pub. St. c. 155, § 27. 2 Willard v. Williams, 7 Gray, 184. « Pub. St. c. 167, § 90. » Tarbell v. Gray, 4 Gray, 444, 446. ' Brickett v. Wallace, 98 Mass. 528. * Pub. St. c. 167, § 29. 270 PLEADING. [CH. XXV. CHAPTER XXV. PLEADING. PART SECOND. § 1. Abatement. — Whenever the subject-matter of the de- fence is that the plaintiff cannot maintain any action at any time in respect to the supposed cause of action, it may and usually should be pleaded in bar ; but matter which merely defeats the present proceeding and does not show that the plaintiff is forever concluded should in general be pleaded in abatement.^ Abatement of a writ or plaint is, when for any default, the defendant prays that the writ or plaint do cease or abate against him for that time.^ § 2. The regular order of pleading in abatement is as fol- lows : — 1. To the jurisdiction of the court. 2. To the ability of the plaintiff. 3. To the ability of the defendant. 4. To the sufficiency of the count of the writ. '5. To the sufficiency of the writ itself. 6. To the propriety of the action. These are the formal divisions of the pleas ; and if a de- fendant pleads a plea belonging to a subsequent division, he thereby loses the privilege of all pleas comprehended in the prior ; or rather such subsequent plea is an admission that none of the previous objections exist.^ 1 1 Chitty's PI. 446. ment (C) ; Story, PI. 1 ; I Tldd's Pr. " Co. Litt. 134 i, 277 o. 630. ' Co. Litt. 303 a; 1 Com. Abate- § 7.] PLEADING. 271 § 3. Pleas in Abatement are Dilatory. — The object is to abate the plaintiff's writ, and defeat his action, and cause him to commence a new action for the same cause. The plea is not favored by the courts. §4. No Process abated for Circumstantial Errors. — The Public Statutes provide that no writ, process, declaration, or other proceeding in the courts or course of justice shall be abated for any circumstantial errors or mistakes when the person can be rightfully understood by the court, nor through defect or want of form only.i If the defendant pleads in abatement non-joinder of another person as a defendant, such person may be joined as defend- ant. This must be pleaded in abatement.^ § 5. A new writ may be taken out against the person to be so joined,^ and served as provided in the statute,* and judg- ment may be rendered and execution issue in the same man- ner as if the original writ had been issued against all the defendants.^ § 6. Reply to Plea in Abatement. — When a plea or answer in abatement has been properly filed, the plaintiff must reply or demur to it.® § 7. Proceedings after Reply and Judgment. — If the plain- tiff reply, and an issue of fact is joined, it is tried like any other issue of fact. If he demur and the issue be one of law, it is tried like any other issue of law. If the issue be one of law and the plea in abatement be overruled, the judgment will be that the defendant answer over,' and the case then proceeds on new pleadings. If the issue be one of fact and is found against the defend- ant, the judgment is final against him^ for damages and costs.^ Judgment on a plea in abatement in favor of the defendant 1 Pub. St. i;. 167, § 35. ' Gage v. Graffara, 11 Mass. 181 ; ^ Pub. St. c. 167, § 36. Ocean Ins. Co. u. Portsmouth Railway, » Pub. St. v;. 167, § 37. 3 Met. 420. * Pnb. St. c. 167, § 38. 8 ?„],. gt, c. 167, § 40. » Pub. St. c. 167, § 39. » Haines v. Corliss, 4 Mass. 659. 8 The King v. Cook, 2 Barn. & Cress. 618. 272 PLKADING. [CH. XXT. is that the writ be quashed ^ — unless where the matter pleaded ia abatement is some temporary disability, such as infancy, &c., in which case the judgment is that the plaintiff remain without day until, &c.2 The statutes give forms of pleas in abatement.^ The pleadings and proceedings subsequent to the filing of a plea or answer in abatement, when not prescribed by rules of court, will be regulated by the presiding judge where the case is pending. § 8. Matter in Abatement may be pleaded in Answer. — The statutes provide that " a defence to a real, personal, or mixed action, which might have been made by a plea in abatement, may be made by answer, containing such allegations or de- nials as may be necessary to constitute such defence."* § 9. Answers in Municipal Courts, &c. — Answers in abate- ment in municipal, police, and district courts, and before trial justices, must be in writing, if the matter in abatement would not be admissible under a plea in bar.^ § 10. Filing Answers in Abatement. — The rules of the courts require that answers and pleas in abatement shall be filed within the time allowed by law for entering an appearance,® that is within ten days from the return days of the writ. An answer in abatement, except for want of jurisdiction, cannot be filed after the time for entering an appearance.^ Filing an answer to the merits before filing any answer in abatement is a waiver of all matters in abatement.^ The defendant is not allowed to answer in abatement and to the merits in the same answer ; ® but if he answers in abatement and to the merits of the action in due time and in the proper order, the fact that both answers are filed together and upon the same paper does not operate as a waiver of the answer in abatement.^" 1 Bac. Abr. Abatement (P.), 29 ; o Rules of S. J. Court, 5 ; Rules of Howe's Pr. 216. Superior Court, 14. 2 1 Chitty's PI. 457. 7 Cole v. Ackerman, 7 Gray, 38. s Pub. St. c. 167, § 94. 8 Seagrave v. Erickson, 11 Cush. 89. * Pub. St. i;. 167, § 13 ; Benthall i>. » Pratt v. Sanger, 4 Gray, 84. Hildreth, 2 Gray, 288. 10 O'Longhlin v. Bird, 128 Mass. 600. « Pub. St. c. 155, § 27. § 13.] PLEADING. 273 § 11. Demurrers. — When the declaration, plea, or replica- tion, &c., appears on the face of it to be defective either in substance or form, the opposite party may in general demur, which has been defined to be a declaration that the party de- murring will go no further because the other has shown no sufficient matter against him.^ A demurrer admits the facts, and refers the law arising thereon to the judgment of the court ; ^ and it is either to the whole or a part of a declaration, some counts of which are good in point of law and the rest bad. The defendant can only demur to the latter ; for, if he were to demur gene- rally to the whole declaration, the court would give judgment against him.^ But if a plea or replication which is entire be bad in part it is bad for the whole.* A demurrer to the whole of a declaration, one count of which is good, will be overruled.^ § 12. Demurrers are general or special ; the former are tO the substance, the latter to the form of pleading.^ In general, a party cannot demur unless the objection appear on the face of the preceding pleadings.^ In point of form no precise words are necessary in a demurrer ; and a plea which is in sub- stance a demurrer, though very informal, will be considered as such.'' § 13. Demurrer to Declaration. — A demurrer is the proper form of taking advantage of the insufficiency of a declaration in a case when it does not state a valid cause of action.^ If, however, the defect is for some matter of form, the courts, as a general rule, will allow the defective pleadings to be amended and put in proper form ; but if the demurrer, in whatever stage of the pleadings it is taken, reaches defects in matters of substance in the entire record, the court will 1 1 Chitty's PI. 660. « 1 Tidd's Pr. 694. 2 Lowell V. Morse, 1 Met. 475 ; Troy ' 1 Chitty's PI. 645. & Greenfield R. R. v. Newton, 1 Gray, 8 Batchelder v. Batchelder, 2 Allen, 544. 105; Shawmut Mut. Fire Ins. Co. „. ' 1 Saund. 286. Stevens, 9 Allen, 332 ; Thompson v. * 2 Saund. 124 ; 2 Tidd, Pr. 694. O'Snllivan, 6 Allen, 303 ; Witt v. Pot- ^ Sears v. Trowbridge, 15 Gray, ter, 125 Mass. 360. 184. 13 2Y4 PLEADING. [CH. XXV. give judgment to the party which, upon the whole, appears to be entitled to it.' A general demurrer reaches defects of substance, and such defects need not be pointed out in the demurrer ; but if the defect is only in matter of form, the demurrer must be special, specifying carefully the defects complained of, and the pleader will be confined to the causes of demurrer specified by him.^ It is a general rule that there cannot be a demurrer to a demurrer. The usual form of a conclusion to a general demurrer to a declaration is, " that the declaration and the matters therein contained and as therein stated are not sufficient in law to enable the plaintiff to support his action." ^ All demurrers, whether general or special, must be signed by counsel. At whatever stage of the pleadings a demurrer is filed, the party whose pleadings are demurred to must join in the demurrer.* An issue of law is then formed, which is to be tried by the court. When there are two counts to a declaration, a demurrer to one does not render unnecessary an answer to the other.^ A demurrer to the several counts of a declaration will not be overruled, as an entirety, if good as to any couut.^ It is a good cause of demurrer that a count contains more than one cause of action." The objection that a declaration upon a promise does not set forth a copy or the legal effect of the writing, can only be taken by demurrer.® To raise an issue in law, the statutes require that the answer must contain a statement that the defendant demurs to the declaration, or to some one or more counts therein, as the case may be, and must assign specially the causes of de- murrer. § 14. Demurrers may be for the foUowing, among other causes : — 1 Berry v. Osbom, 28 N. H. 279-288 ; « Dwight v. Holbrook, 1 Allen, 560. Claggett V. Simes, 31 N. H. 22. 6 jiay v. Western Union Telegraph ^ Washington v. Eames, 6 Allen, 417. Co., 112 Mass. 90, 94. " 1 Chitty's PI. 667, and cases there ' Downs v. Hawley, 112 Mass. 237. cited. 8 Shaw mat Ins. Co. i>. Stevens, 9 * 1 Tidd's Pr. 696 ; Howe's Pr. 220. Allen, 332. § 15.] PLEADING. 275 " 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 declaration. " Second. That the declaration or some count thereof, as the case may be, does not state a legal cause of action sub- stantially in accordance with the rules contained in the statutes. " Third. That the answer does not state a legal defence to the declaration or some count thereof, as the case may be, substantially in accordance with such rules. "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 probabje 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." ^ A plea or answer in demurrer must be filed within the time required for entering an appearance.^ § 15. The plaintiff may demur to the answer* on the ground that it does not state a legal defence to the declaration or some count thereof, and the replication may raise an issue of law " by the statement that the plaintiff demurs to the an- swer or so much thereof as applies to one or more counts of the declaration as the case may be, assigning specially the causes of demurrer; and in like manner either party may demur to the allegation of the other party. The last clause includes a right to demur to a particular and distinct allega- tion as well as to the whole answer, or to a distinct allegation in a count as well as to a whole count, and this makes the right to demur in Massachusetts coextensive with the right to demur under the system of special pleading." * Inconsistent defences in an answer furnish good ground for a demurrer.^ An objection to the inconsistency of defences 1 Pub. St. c. 167, § 11, 12. Iron Works, 97 Mass. 502, 503 ; Pub. St 2 Rules of Superior Court, 14. >;. 167, § 24, 25. 8 Pub. St. c. 167, § 24. 6 Jewett v. Locke, 6 Gray, 233. * Montague v. Boston & Fairhaven 276 PLEADING. [CH. XXV. in an answer can be taken by demurrer only.^ If a plaintiff joins two inconsistent counts, alleging that they are all for the same cause of action, it is a good cause for demurrer.^ § 16. Hearing of Demurrer. — The statutes provide that " 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 de- murrer may be further heard upon appeal or otherwise, as is provided in respect to such questions of law. When a de- murrer 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 the facts." ^ The judgment of a justice of the Supreme Judicial Court upon a demurrer in an action at law is not subject to appeal, and can only be revised on bill of exceptions or report.* Such judgment of the Superior Court may be heard by the Supreme Judicial Court on appeal.^ § 17. Frivolous Demurrer. — If a demurrer appears to the judge who first hears the same to be frivolous, immaterial, or intended for delay, he may, besides 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 will proceed to a final judgment as if no demurrer had been filed, and exe- cution may be awarded or stayed on such terms as the court may deem reasonable, as in cases of exceptions ad- judged frivolous.^ § 18. Paying Money into Court. — When the dispute is, not whether any thing is due to the plaintiff, but how much, the defendant, before he pleads, is at liberty to move the court, 1 Lyons v. Ward, 124 Mass. 364. * Cowley v. Train, 124 Mass. 226. 2 Mnllaly v. Austin, 97 Mass. 30, 33. 6 15.. p„b. St. c. 150, § 7. 8 Pub. St. c. 167, § 67. 6 Pub. St. c. 167, § 68. § 19.] PLEADING. 277 in writing, for leave to pay so much money into court as he thinks is really due. This motion is granted of course, and an order is passed, the effect of which is, that if the plaintiff elect to take the sum brought in, as in full satisfaction of his suit, his costs are paid to him, and the action is dismissed. If the plaintiff refuse to receive the money in full satisfaction, he is still entitled to take it out of court, giving a receipt therefor to the clerk.i The practice of bringing money into court, upon motion, was first introduced in order to avoid the hazard and diffi- culty of a plea of tender.^ It is generally made before plea, though it can be made at any time before judgment, by special leave of court ; ^ and even after a regular judgment, and a new trial granted, the defendant has had leave to bring money into court.* § 19. Effect of paying Money into Court. — By paying money into court, upon the common rule, the defendant ac- knowledges his liability to the action, and to the recovery by the plaintiff of so much as is paid in by the defendant.® Payment of money into court, generally, on the whole dec- laration, admits the contract as stated in each count, and a breach of it, and that something is due on each count thereof; but it does not admit the amount of the breach there stated.^ If, however, there be several counts in the declaration, one of which only is applicable to the plaintiff's demand, payment of 1 2 Arch. Pr. 203; Howe's Pr. 401. him, the said Richard Roe, the sum so 2 White V. Woodljouse, 2 Stra. 787. brought in may be paid out of court to ' Griffiths V. Williams, 1 T. R. 710. the plaintiff' or his attorney, and the * 1 Tidd's Pr. 622. amount thereof be stricken out of the The following is the form of a motion declaration, and no evidence thereof be for leave to bring money into court, in given at the trial ; and that if the plain- Massachusetts : ^^^ shall elect to receive said sum in full discharge of the damages claimed by " SoFEKiOR CouET. him, he may be ordered to tax his costs, " Suffolk, ss. Term, 187 . that the defendant may pay the same. " John Doe V. Richard Roe. •' " "And now the said Richard Roe, by 6 Burrough ». Skinner, 5 Burr. 2639 ; his attorney, moves for leave to bring in Cox o. Parry, 1 T. E. 464 ; Jones v, the sum of dollars, and that, unless Hoar, 5 Pick. 285 ; Huntingdon v. Ameri- the plaintiff accept the same, in full dis- can Bank, 6 Pick. 340. charge of the damages claimed against ^ Stoveld t. Brewin, 2 B. & Aid. 117. 278 PLEADING. [CH. XXV. money into court generally admits a cause of action on that count only.^ If a special agreement be declared on, it admits the exist- ence of it ; 2 but if the declaration contain the common counts, it may be paid in upon them, and leave the plaintiff to prove his special ones.^ Accordingly, where the action is upon a bill of exchange, and money is paid in, there is no necessity of proving the handwriting of the defendant ; * so in an action of covenant, the execution of the deed is admitted,* though it is not such an admission as precludes the defendant from objecting to the legality of the contract in order to prevent the plaintiff from recovering beyond the sum paid in.® If the declaration Contain counts upon both illegal and legal de- mandsj the money paid in shall be applied to the legal demand only.^ So in an action on a policy of insurance, the court, under particular circumstances, allowed the defendant to give evidence of fraud, notwithstanding the payment of money into court.® It is, however, a conclusive admission of the plaintiff's right to sue,^ and of his right to the character in which he sues.^" But as it is no admission of the plaintiff's right of action beyond the sum paid into court," it does not deprive the defendant of the benefit of the statute of limita- tions as to the residue of the plaintiff's demand.^ If the defendant, in an action of assumpsit, containing the common money counts, and also a count for the use and occu- pation of certain premises described, pays a part of the sum demanded into court, without specifying to which of the counts the payment is to be applied, such payment is an admission only that the defendant owes the plaintiff on some one or several of the counts the sum so paid ; but it is not an 1 Stafford v. Clark, 2 Bing. 377. « Mailer v. Hartshome, 3 Bos. & Pul. 2 Yate V. Willan, 2 East, 128. 556. 8 1 Sel. Pr. 287 ; 2 Arch. Pr. 202. 9 Miller v. Williams, 5 Esp. 19. * Gutteridge v. Smith, 2 H. Bl. 374; '» Lipscolnbe v. Holmes, 2 Camp. Israel v. Benjamin, 3 Camp. 40. 441. 5 Randall v. Lynch, 2 Camp. 357. " Arch. Pr. 202, and cases cited. 6 Cox D. Parry, 1 T. R. 464. ^ Long v. Greville, 4 D. & R. 632. ' Ribbans «. Crickett, 1 Bos. & Pul. 264. § 20.] PLEADING. 279 admission of any particular contract or debt under any one of the counts, nor of a liability on all of them.^ A tender of an amount equal to the stipulated rate of board for part of the time does not prevent the defendant town from proving that the plaintiff did not board the person for whose board he claims for the residue of the time.^ If a defendant, in answer to an action of contract in the police court, pleads a tender of the amount due, alleging a profert in court, but in fact without placing the money in the custody of the court, and offers the same in open court to the plaintiff, who refuses to receive it, on the ground that he is entitled to a larger sum, and, after judgment for the plaintiff, the defendant appeals to the Superior Court, and there prop- erly pleads the profert, and pays the money into the court, it is too late then for the plaintiff to object to the irregularities in the lower court.^ § 20. Is Payment pro tanto. — When money is paid into court, it is a payment pro tanto ; the defendant cannot, and the plaintiff must, take it out ; and if the defendant die, and the action be revived, or a new one be brought, such payment may be given in evidence in the second action.* If the plaintiff, after money has been paid into court, pro- ceed in his action, it is at his peril. The sum paid in must be considered as stricken out of the declaration ; it is for so much a defence, and unless the plaintiff prove a sum to be due beyond what is paid, the verdict should be for the de- fendant.^ If, however, more appears to be due to the plain- tiff, he is entitled to a verdict for the overplus and costs.^ The plaintiff stands in much the same situation, as regards the residue of his demand, as he would have done if the de- fendant had never acquiesced in any part of it ; he may, therefore, be nonsuited,' or there may be a judgment as in case of nonsuit, or a demurrer to evidence, or a plea puis ' Hubbard v. Knous, 7 Cush. 556. « 2 Paine & Duer, Pr. 161. 2 Hewlett V. Holland, 6 Gray, 418. ' Sterenson u. Torke, 4 T. E. 10 ; 8 Storer v. McGaw, 11 Allen, 527. Burstall v. Homer, 7 T. E. 372; Elliot * 2 Paine & Duer, Pr. 161. v. Callow, 2 Salk. 597; Stodhart u. « SteTcnson v. Yorke, 4 T. E. 10. Johnson, 3 T. E. 657. 280 PLEADING. [CH. XXV. darrein continuance ; in short, the cause goes on substantially in the same manner as if the money had not been paid in at all.i The plaintiff is entitled, at all events, to the money brought in, whether he proceed in his action or not, or though he be nonsuited, or have a verdict against him. And it can- not afterwards be recovered back, though it should appear that the defendant paid in the same wrongfully,^ unless, per- haps, some fraud or deceit were practised upon him.^ § 21. Rules of Court as to paying in Money. — The eighth rule of the Supreme Judicial Court provides " that in all cases in which money shall be brought into court under the common rule, the plaintiff shall be entitled to receive the same, together with his costs up to that time, to be legally taxed ; and if the plaintiff shall, in reasonable time, tax his costs, the amount thereof shall be paid into court, in addition to the money brought in, and shall be for the use of the plaintiff, and paid out to him on request ; whereupon the amount so brought in on account of the plaintiff's demand shall be considered as stricken out of the plaintiff's demand, to the same effect as if paid. If the plaintiff shall con- sent to accept the amount thus paid, with costs, in satis- faction, all further proceedings in the case shall cease. If the plaintiff shall signify his election not to receive the same in satisfaction, but to proceed in his suit, and shall recover any sum beyond the amount thus paid in, he shall be entitled to a judgment therefor, with costs to be taxed from the time the money is so brought in ; if the plaintiff shall not prove more to be due to him than the sum thus paid in, the defendant shall be entitled to a verdict, and judgment thereon, with costs to be taxed from the time the money is paid into court." See also Rule 9, of same court, and Rules, 23, 24, and 25 of the Superior Court. § 22. In what Actions Money may be brought in. — The general rule as to the cases in which money may be brought 1 Gutteridge v. Smith, 2 H. Bl. 374. » Cox v. Brain, 3 T. B. 95. 2 Malcolm v. Fullarton, 2 T. R. 645 ; Yaughan v. Barnes, 2 Bos. & Ful. 392. § 22.] PLEADING. 281 into court is, that it may be done in all actions brought upon a contract, where the sum demanded is either certain or cap- able of being ascertained by mere computation, without leav- ing any other sort of discretion to be exercised by the jury.^ Thus it is allowed in assumpsit, where the breach is non-pay- ment of money ,2 but not otherwise.^ But it is not allowed against bailees or carriers of goods, in actions of assumpsit relating to their carriage or delivery,* with this exception, that, where a carrier has given notice that he will not be ac- countable for goods beyond a certain amount, he will be per- mitted to pay that sum into court." In an action on a policy of insurance, money may be brought into court, so in ejectment for non-payment of rent,* so in replevin or avowry for rent,' money may be brought into court. In trespass quare clausum f regit, when the defendant shall disclaim, and the trespass was involuntary, the defendant may bring money into court, to satisfy the damage.^ In debt for rent, the defendant may bring money into court ; ^ and so in actions for debt generally, when founded upon a contract ; but in those actions of debt wherein the plaintiff cannot recover less than the sum demanded, as on a record, specialty, or statute, giving a certain sum by way of penalty, the defendant cannot bring money into court, though he may move to stay proceedings upon payment of the pen- alty and costs.^" In covenant for non-payment of money, the defendant may pay money into court.^^ In actions of trespass or other tort, as in an action against a sheriff for a false return, money cannot be paid into court.^^ In trover, where the action is for money, and not for the 1 2 Arch. Pr. 199 ; Hallett v. East ' Downes v. Turner, cited 2 Salk. India Co., 2 Burr. 1120. 596. 2 2 Salk. 596. « Pub. St. c. 179, § 10. « Strong V. Simpson, 3 Bos. & Pul. 9 1 Tidd's Pr. 619. 14. 1" 2 Arch. Pr. 199. See 2 Stra. 890. * Fail I). Pickford, 2 Bos. & Pul. 234. " II). <> Hutton V. Bolton, 1 H. Bl. 299, n. 6. ^ White o. Woodhouse, 2 Stra. 787 ; 6 1 Sel. Pr. 280. Squire v. Archer, 2 Stra. 906. 282 PLEADING. [CH. XXV. value of a Ihiug, it may be brought into court ; ^ but, gen- erally, trover being an action for damages, in which the amount to be recovered must depend upon the jury, the motion cannot be made.^ And in Fisher v. Prince,^ Lord Mansfield and Wilmot, J., concurred in the following distinc- tion : " that where trover is brought for a specific chattel, of an ascertained quantity and quality, and unattended with any circumstances that can enhance the damages above the real value, but that its real and ascei-tained value must be , the sole measure of the damages, there the specific thiug de- manded may be brought into court." Lord Mansfield said : " It is a pity that a false conceit should, in judicature, be re- peated as an argument; 'the court does not keep aware- house : ' what then ? What has a warehouse to do with ordering the thing to be delivered to the plaintiff ? " § 23. Motions to bring in or to deliver specific articles in actions of trover ought neither to be refused nor granted of course: they must depend upon their own cir- cumstances. The doctrines laid down by the court in the case last cited bear with peculiar force upon some cases which may arise under the action of trover, and in which it is probable that they would be applied. As in trover for a bond, the defendant may have detained it, so as to be unable to make a defence to the action, yet the bond may be valueless to him, and at the same time possess a real and ascertained value to the plaintiff. In such a ease, there seems to be no reason why the defendant may not surrender it in court under a rule, and upon the payment of costs have the action dis- missed.* § 24. Money tendered and brought into Court. — When a person has made a tender of money, to make his tender avail- able the money must be brought into court. The tender admits the contract as set forth in the declaration, as in other cases. And where a tender is pleaded, and the money brought into court, the proceedings are substantially the 1 Anonymous, 1 Stra. 142. 8 3 Burr. 1363. " Olivant v. Berino, 1 Wils. 23. * Howe's Pr. 404. § 24.] PLEADING. 283 same as under the common rule, except that the defendant, if the money be accepted, pays no costs.^ The defendant cannot recover back the money, though the plaintiff, in his replication, deny the tender, or the defendant obtain a verdict.^ In case of a plea of tender, the money must be brought into court, otherwise it may be treated as a nullity, and, in case of a verdict for the defendant, the plain- tiff may have judgment non obstante veredicto.^ When money is brought into court, the plaintiff either accepts it with costs, in discharge of the suit, or proceeds in the action. If he elects the former course, he notifies the de- fendant of his intention, and, if the costs remain unpaid, he has a right to proceed, and will recover his costs, with nomi- nal damages.* But if the plaintiff do not elect to take the money, but pro- ceeds to trial, unless he prove a sum to be due beyond what is paid into court, the 'defendant, as before stated, is entitled to a verdict, and will recover the costs of the action, from the time the money was paid into court, but not before, and the plaintiff recovers no costs. If the plaintiff recover aiore than the sum paid in, he is entitled to his costs, in the same manner as if there had been no payment.^ The plaintiff is entitled to costs up to the time of the defendant's paying money into court, if he take it out at any time before trial, even if he proceed in the cause, and though he afterwards gives notice of trial, which he neglects to countermand, whereby the defendant is entitled to judg- ment, as in case of nonsuit ; ^ but not if the defendant have obtained such judgment ; in which case, the subsequent costs are to be allowed to the defendant.'^ See chapter on Tender. The practice of paying money into court is now pretty ' Howe's Pr. 40.'5. 39, n. 2 ; Stevenson v. Yorke, 4 T. E. = Le Grew o. Cooke, 1 Bos. & Pul. 10 ; Postle v. Beckington, 6 Taunt. 158. 332; Cox v. Eobinson, 2 Stra. 1027. « Seamour v. Bridge, 8 T. K. 408; 8 Claflin V. Hawes, 8 Mass. 261. Lorck v. Wright, 8 T. K. 486. * Bucker v. Palsgrare, 1 Camp. 557. ' Crosby v. Olorenshaw, 2 Maule & 5 2 Paine & Duer, Pr. 164 ; 1 Saund. S. 335. 284 PLEADING. [CH. XXV. much superseded by the statute providing for an offer of de- fault and judgment. 1 § 25. Offer of Default and Judgment. — The statutes pro- vide that " 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 tendered ; and the plain- tiff 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 accordingly, with costs to the date of the notice. If, after such notice, the court shall for good cause grant 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. • " If the plaintiff does not elect to accept such offer, and shall not recover a greater sum than the sum so offered, not includ- ing 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 recovers damages, shall be allowed his costs only to the date of the offer." '^ § 26. "When an Offer takes Effect. — If the offer is filed in term time, it takes effect from the time of the filing, but if filed during vacation, and continuing on file until the next term of the court wherein the action is pending, takes effect on the first day of that term and is to be entered of record as of that day ; and if the plaintiff, having notice of the offer, does not elect to accept it, but proceeds to trial and recovers judgment for a less sura, exclusive of interest from the date when the offer took effect, than the sum offered, he is entitled to his costs only to that date, including travel and term fee for that term, and the defendant is entitled to costs thereafter.^ 1 Pub. St. c. 167, § 65, 66. » Madden u. Brown, 97 Mass. 148, » lb. 150. § 1.] PLEADING. 285 CHAPTER XXVL PLEADING. PART THIRD. § 1. Amendments at Common Law. — The judges recorded the parols or pleadings declared before them in judgment ; but they were not to erase their records, nor amend them, nor record against their enrolment.-' All mistakes, however, were amendable at common law, during the term in which they were made ; and an amend- ment was sometimes permitted afterwards, as in the recital of a writ or the entry of a continuance.^ So, at common law, when the pleadings were orally made at the bar of the court, if any error was perceived in them, it was presentl}' amended.* Afterwards, when the pleadings came to be in writing, it was thought but reasonable that the parties should have the like indulgence.* In the English practice, while the proceedings are in writ- ing, the amendment is at common law, and not within any of the statutes of amendment, which relate only to proceedings of record.^ And there is no difference at common law between penal and other actions. Thus, in a qui tarn action for usury, the plaintiff was permitted to amend his declaration, by alter- ing the date of a note, after issue joined and entered on the roll, and after many terms had elapsed since the commence- ment of the action ; ^ and a similar amendment was allowed to be made in a case where the record had been made up for trial, and withdrawn on discovering the mistake.'^ Where 1 4 Inst. 255; Glib. C. P. 107. « 1 Salk. 47; 3 Salk. 31. 2 8 Co. 157 ; Gilb. C. P. 108. « 1 Salk. 51 ; I Tidd's Pr. 711. 8 lb. ' Mace V. liOvett, 5 Burr. 2833. 4 2 Salk. 520. 286 PLEADING. [CH. XXVI. there has been no unnecessary delay on the part of the plain- tiff in a penal action, the court will grant leave to amend the declaration, even after the time has expired in which the plaintiff is allowed to bring a new action.^ Xbere is said to be no instance in which the court has given leave to amend to the parties in a qui tarn action, after demurrer.^ When the proceedings are entered on the record, the court will grant leave to amend, only so far as is allowable by the statutes of amendments.^ § 2. Amendments allowed by Statute. — The provisions of the Public Statutes as to amendments are so broad that almost any amendment under them seems possible. They provide that " no action shall be defeated by plea or answer in abatement, if the defect found is capable of amendment, and is amended on terms prescribed by the court. The de- fendant may have leave to amend an answer in abatement, or to answer over by special order of the court, for good cause shown, and not otherwise. " At any time before final judgment in a civil suit, amend- ments may be allowed, on such terms as are just and reason- able, introducing any party necessary to be joined as plaintiff or defendant, discontinuing as to any joint plaintiff or defend- ant, 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 sustain the action for the cause for which it was intended to be brought, or the defendant to make a legal defence." * So general are these provisions that any citation of cases where amendments have been allowed seems superfluous. The question whether an amendment of any process or plea shall be allowed is addressed solely to the discretion of the court, and appears to be limited by only one condition — that it shall relate to the same cause of action. § 3. The rule as to amendments to declarations is fully stated by Bigelow, C. J., in the case of Mann v. Brewer.^ 1 Cross V. Kaye, 6 T. E, 543. ' 1 Tidd's Pr. 712. ^ Per Buller, J., Evans v. Stevens, * Pnb. St. c. 167, § 41, 42. 4 T. R. 228. 6 7 Allen, 203. § 3.] PLEADING. 287 He says : " Under the provisions of the Practice Act, General Statutes, c. 129, §§ 40-42, no exception to the ruling of the court allowing the plaintiff to amend his declaration by filing a new count is open to the defendant. By the first of the two sections above cited, it is provided that amendments may be allowed changing the form of action, or any other matter of form or substance which may enable the plaintiff to maintain the action for the cause for which it was intended to be brought. As we understand the purpose and effect of this provision, it authorizes the court before which an action is pending, in the exercise of a judicial discretion, to permit any amendment to be made which may be necessary in order to avoid any technical objection to the form of the action, so that a plaintiff may recover the debt or claim for which he originally commenced his suit, however it may have been misdescribed, and notwithstanding he may have wholly mis- taken the proper form of remedy. In the exercise of this power by the court, it may often become necessary to enter into an inquiry of fact, in order to ascertain and determine whether the debt or claim which a plaintiff may seek to bring in under a proposed amendment is identical with that which he or his counsel intended to prosecute when the action was commenced, although it was imperfectly or erroneously set out in the declaration. " This provision of the statute created an essential change in the power and practice of the court in allowing amend- ments. Before its enactment the court did not go beyond the record to ascertain whether an amendment proposed was for an additional or different cause of action from that set out in the original declaration. The question was determined by comparing the new with the old count. But the statute greatly enlarged the scope of the inquiry by introducing the intention of the party in bringing his suit, as the important element by which the court is to be governed in the exercise of the power of allowing amendments, by changing the form of action, or otherwise. Hence arose the necessity of the provision contained in section 82 of the statute, which is to be construed in connection with the previous section already 288 PLEADING. [CH. XXVI. quoted. It is therein enacted that the cause of action shall be deemed to be the same for which the action was brought, when it shall be made to appear to the court that it is the cause of action relied on by the plaintiff when the action was commenced, however the same maybe misdescribed ; and the adjudication of the court allowing the amendment shall be conclusive evidence of the identity of the cause of action. " The case at bar furnishes a good illustration of the practi- cal operation of the rule thus established. The claim set out in the original declaration was for use and occupation of cer- tain premises. But it appeared that the defendant occupied the premises under a written lease, which had been executed as his deed under seal. It is true that in law a count for use and occupation, and for a breach of covenant for non-pay- ment of rent, constitute different causes of action. But if it was made to appear to the court that the claim which the plaintiff intended to prosecute was for rent of the premises during a certain fixed period of time, and that by mistake or inadvertence of himself or his counsel the lease was over- looked or forgotten at the time the original declaration was drawn, it was competent for the court below to find, as a matter of fact, that there was but one substantial claim against the defendant in favor of the plaintiff for the occu- pation of the premises, and that this was for rent under the lease, and was the cause of action which was intended to be described in the original count. On such a finding the court might well allow an amendment setting out a claim for rent under the covenant in the lease. To such allowance the de- fendant is not entitled to exception." ^ The provisions of the Public Statutes are substantially the same as the statutes under which this decision was made. § 4. Amendments of Form and of Substance. — No distinction is made in our statutes between amendments of form and amendments of substance, and, indeed, it seems to be of little importance. What is matter of form and what matter of substance is a nice, and often an embarrassing question, and 1 Mann » Brewer, 7 Allen, 203 ; Pub. St. c. 167, § 85. § 6.] PLEADING. 289 there seems to be no good reason why amendments of form should be more or less favored than those of substance, when each tends alike to promote the ends of justice. § 5. Amendment of 'Writs. — The date of the writ,^ the day and place of its return,^ the directions to the officer,^ the ad damnum,^ the test,^ and seal,^ the signature of the clerk,^ — each and all may be amended ; and a writ in which the ad damnum was entirely omitted may be amended by filling up the blank.* A writ of review may be amended by the sub- stitution of a new plaintiff.'' So a misnomer of a party may be amended.^" A mistake in the return day of a writ may be amended.^! A writ brought by an infant may be amended by inserting that he sues by his next friend.^^ An amendment of a writ against a defendant personally may be allowed, so as to charge him in his capacity as admin- istrator.i^ So also when there is a variance between the declaration and the proof. i* § 6. A Suit at Law may be changed to Suit in Equity. — The Public Statutes further provide that " amendments may be so allowed by the Supreme Judicial Court or the Superior Court, changing an action at law into a suit in equity, or a suit in equity into an action at law, if necessary to enable the plaintiff to sustain the action or suit for the cause for which it was intended to be brought. When such an amend- ment is made changing an action at law into a suit in equity, or vice versa, the court in which such cause is pending will retain jurisdiction of it, with full powers in the proceedings therein ; ^^ and the court having such jurisdiction may make I Mclniffe v. Wheelock, 1 Gray, 600. 8 Cragin v. Warfield, 13 Met. 215. ' Kimball v. "Wilkins, 2 Cush. 5.^.5 ; ' Winch v. Hosmer, 122 Mass. 438. Hamilton v. Ingraham, 121 Mass. 562. l" Crafts v. Sikes, 4 Gray, 194. 3 Hearsey v. Bradbury, 9 Mass. 95 ; ^ Hamilton v. Ingraham, 121 Mass. Wood V. Ross, 11 Mass. 276. 562. * Danielson v. Andrews, 1 Pick, 156. l^ Blood v. Harrington, 8 Pick. 552. 5 Ripley v. Warren, 2 Pick. 592 ; ^ Hutchinson r. Tucker, 124 Mass. Nash V. Brophy, 13 Met. 478. 240. « Foot V. Knowles, 4 Met. 386. " Keller v. Webb, 126 Mass. 393. ' Austin V.Lamar Ins, Co., 108 Mass. '^ Pub. St. c. 167, § 43 ; St. of 1883, 338. C. 223, § 17. 19 290 PLEADING. [CH. XXVI. any necessary orders as to further service, joinder of new paities, or the pleadings therein. " 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 judgment 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 affirmance of the judgment." ^ It is held that no exception to the allowance, under this statute, of an amendment changing a suit at law into a pro- ceeding in equity, or vice versa, lies on the ground of laches in the plaintiff, or on the ground that, if the amendment were not granted, the suit or proceeding must be dismissed, and the bringing of a new proceeding or suit would be barred by the statute of limitations.^ § 7. When the Original Writ is Lost. — In cases of inevitable accident, or the unaccountable disappearance of a writ from the files of the court, during the pendency of a suit, justice requires that the loss should be supplied. This can, of course, be done only upon exact proof of the contents of the writ, supported by the affidavit of the attorney in the cause, who must set out such contents, if possible, and state that the original has not been lost through design, and that thorough search has been made for it. In Bean v. Elton,^ the court ordered a new writ, in place of the one lost, to be made out and filed. And where writs have been taken from the files, and lost through accident by the attorney, it is usual to pro- ceed upon a copy furnished by him, made from the memoran- da in his possession, or on file. This, however, is dangerous practice, and would not be allowable, except by consent, unless the party furnishing the copy could make affidavit that it was a true and exact copy of the original writ, and that the original had been lost without fault or design on his part.* 1 Pub. St. c. 167, § 43, 44. Caines, 496 ; People v. Burdock, 3 " George u. Heed, 101 Mass. 378. Caines, 104; Petrie v. Benfield, 3 » 2 Stra. 1077. T. R. 476. * See Jackson v. Hammond, 1 § 10.] PLEADING. 291 § 8. As to amendments of an officer's return, see ante, c. 10, on Service of Writs. § 9. A bill of particulars is amendable, like a declaration, and these amendments are entirely in the discretion of the court, and will be allowed, as in other cases, where the so doing will further the ends of justice.^ And the plaintiff has been allowed to amend his particular after having been nonsuited, and to go to a new trial.^ An insufficiency of a particular in any respect in which it might have been rectified if the objection had been made earlier, cannot be objected to on the trial.^ § 10. Amendment of Verdicts. — Where a general verdict has been rendered upon a declaration containing several counts, one of which is bad, the plaintiff will have leave, during the same or any subsequent term, to amend the ver- dict by taking it upon one or more good counts, if the judge who presided at the trial will certify that all the counts were for only one cause of action, or that all the evidence applied to the count on which the verdict is proposed to be taken.* A verdict which is erroneous in omitting to find all the issues may be amended, even after a writ of error is brought, if the judge who tried the cause will certify that there was no question in regard to such issue.^ A special verdict defective in substance cannot be amended by the minutes of the judge, without the consent of both parties.^ If a verdict is not formally in the words of the issue, the court will put the verdict in proper form.'' A general verdict on a declaration containing several counts for the same cause, one of which was fatally defective, 1 Spawn V. Veeder, 4 Cow. 503; Barnes v. Hurd, 11 Mass. 57; Sullivan Babcock v. Thompson, 3 Pick. 446. v. Holker, 15 Mass. 374 ; Patten v. Gnr- 2 Holland ». Hopkins, 2 Bos. & Pnl. ney, 17 Mass. 182 ; Baker v. Sanderson, 245 ; Babcock v. Thompson, 3 Pick. 3 Pick. 348 ; Cornwall v. Gould, 4 Pick. 446. 444. « Lovelock V. Cheveley, 1 Holt, N. P. « Clark v. Lamb, 6 Pick. 512. Kep. 552. 6 Walker v. Dewing, 8 Pick. 520. * Barnard v. Whiting, 7 Mass. 358 ; ' Porter v, Rummery, 10 Mass. 66. 292 PLEADING. [CH. XXVI. may be amended at a subsequent term by the minutes of the judge and entered only on the good counts.^ § 11. Amendment of Records. — By the common law, any apparent error in the record might be rectified and amended by another part of the same record. Where, in an action against an administrator, judgment was rendered against him as administrator, the court held that it might be amended, and judgment entered against the goods and estate in his hands.^ All circumstantial errors, clerical mistakes, and defects in form may be amended ; ^ and such amendments may be al- lowed not only after judgment, but even after a writ of error has been brought to reverse the judgment.* A magistrate may amend his record of an examination of a poor debtor.^ § 12. What Amendments not Allowed. — Amendments will liot be allowed which affect the interests of third persons not parties to the suit.^ After a writ is served the parties have no right to alter it without leave of court. If it is altered by consent, perhaps the consenting parties may be estopped to object, but their consent cannot affect the rights of other attaching creditors, or of bail, or of sureties.'^ § 13. Effect of Amendments. — In Ball V. Claflin,* where an amendment was made bj'^ filing new counts upon the same cause of action, Parker, C. J., says : " The new count offered under leave to amend must be consistent with the former count or counts, that is, it must be of a like kind of action, subject to the same plea, and such as might have been origi- nally joined with the others. It must be for the same cause of action, that is, the subject-matter of the new count must be the same as of the old ; it must not be for an additional claim or demand, but only a variation in the form of de- manding the same thing. Amendments made conformably 1 Barnard v. Whiting, 7 Mass. 358 ; 6 Lincoln v. Cook, 1 24 Mass. 383. Smith V. Cleveland, 6 Met. 332. « Williams v. Brackett, 8 Mass. 240 ; 2 Atkins V. Sawyer, 1 Pick. 351. Emerson v. Upton, 9 Pick. 171. s Howe's Pr. 382. 7 Simeon v. Cramm, 121 Mass. 492, * Thatcher v. Miller, 11 Mass. 413; 493. Hutchinson v. Crossen, 10 Mass. 251. ' 5 Pick. 303. § 13.] PLEADING. 293 to the rule thus explained can do no injury to any one. Neither the defendant, nor his bail, nor subsequent attaching creditors, have ground of complaint when their liability is in no degree changed or affected, except merely in regard to want of form, which our statute of jeofails is meant to guard against." The rule, as stated above b}' Parker, C. J., is per- fectly manifest and reasonable, but' its application must be confined to the case of amendments of the declaration where no new cause of action is introduced. The authorities are uniform in the doctrine, that any ma- terial amendment of the writ, such as increasing the ad damnum, or amending the sum directed to be attached, or correcting the date of a return upon the writ, though the error be clearly clerical only, will have the effect of discharg- ing any attachment made upon the writ, as against subse- quent attaching creditors. In the case of Emerson v. Upton,^ Parker C. J., in delivering the opinion of the court, said: " It will be found, on an examination of the cases in which amendments of writs have been granted, that the effect of them, when any change has been made, has been lim- ited to the parties to the suit in which the amendment is granted." Filing a new count for a new cause of action will discharge the bail.^ It will also discharge the attachment when a sub- sequent one exists.^ An amendment increasing the sum di- rected to be attached has been held to be void as against a second attachment.* It is held that the mere fact of entering into a rule of reference of all demands, in an action, discharges the bail, al- though it be pleaded and shown that no additional claim is introduced in behalf of the plaintiff ; and this upon the ground that a reference of all demands is, in truth, abandoning the suit altogether, and giving to each party an unlimited right to claim against the other, without regard to the original right of action.^ In Haven v. Snow,® it is held that the 1 9 Pick. 167. * Putnam v. Hall, 3 Pick. 445 ; Den- 2 Fallam v. Valentine, U Pick. 156. ny v. Ward, 3 Pick. 199. » Willis V. Crocker, 1 Pick. 204. ' Bean v. Parker, 17 Mass. 591. 6 14 Pick. 28. 294 PLEADING. ' [CH. XXVI. amendment of the officer's return was effective as against another creditor, who attached the same real estate after the attachment on Haven's writ and before the amendment, such creditor having constructive notice of the first attach- ment. § 14. Terms of Amendmenta. — There is no invariable rule as to the terms of allowing amendments. It depends much upon the discretion or impression of the judge who grants the amendment. Amendments are to be allowed by the court on terms which are just and reasonable, except where the terms are fixed by statute or by general rules of court. What is just and reasonable must in each case depend upon the na- ture and effect of the amendment, and all the circumstances of the case. When substantial amendments are allowed, the opposite party may be entitled to a continuance, if he desires it ; and if he has witnesses in attendance, he maybe entitled to have their fees paid by the party making the amendment. In cases which come within general rules of the court as to costs, the rules must be complied with, but other terms may also be imposed by the court. By a rule of the Supreme Judicial Court " no amendment in matter of substance shall be allowed after the entry of an action, unless by consent, in any case where the adverse party appears, except upon payment of a term fee ; and upon striking out unnecessary counts or statements, or filing amendments after demurrer, the same terms shall be im- posed ; and no amendment shall be allowed, unless by con- sent, after an action is placed on the trial list, except upon payment of a double term fee ; but this rule shall not pre- vent the imposition, in any case, of such further terms as the circumstances of the case and justice to the parties may re- quire. When either party shall amend, the other party, if by reason thereof his case shall require it, shall be entitled also to amend without terms." ^ The Superior Court has a similar rule.^ If the party moving for an amendment is unwilling to make it on the terms ordered by the court, he may waive the 1 Eule 4. 2 Rule i5_ § 15.] • PLEADING. 295 amendment, and proceed without it. When money is to be paid as terms of an amendment, the payment is a condition precedent to the allowance of the amendment. § 15. Motion to amend and Notice thereon. — A motion for leave to amend should be in writing, with the proposed amendment attached to it, so that the opposing pa.Tty and the court may see what is the nature and extent of the amendment. If the amendment is allowed by the court, the amendment is made. The writ or plea amended should re- main as before. With regard to an amendment of a return of an officer, the rule is different, and is proper anywhere. The officer should first file his motion for leave to amend, stating accurately the words of the proposed amendment. The statements in the proposed amendment should be sworn to by the officer. If the amendment is allowed, then the officer should in- dorse the amendment on the writ, and sign it, so that the original return and the amendment to it may go together, the latter explaining the former. This is important, as otherwise, in case the amendment should be lost, the record would show only the original return. It may not be essential to the va- lidity of the amendment that it should be indorsed on the writ as here stated, but that is the safe and proper course. The form of the indorsement is given in note.^ The court will not hear a motion to amend, without rea^ sonable notice to the adverse party or his attorney. Such notices are usually quite informal. The time and manner of such notice is a matter within the discretion of the court, and the practice is not uniform. It must depend upon the circumstances of each case. If the counsel for the opposite party is present in court when the motion is made, it is suf- ficient to call his attention to it. In such a case the court would allow the opposing counsel time to examine the pro- posed amendment, and, if a hearing was desired as to its allowance, fix a time for the hearing. ^ " Stjpekioe Court. made service of this writ and the return "SoPFOLK, ss. Teem, 187 . thereon, by leave of court, amends his " And now A. B., the officer who said return by," &o. 296 PLEADING. [CH. XXVI. § 16. Rulea as to allowing Amendments. — Upon a careful examination of the statutes and the rules and decisions of courts in relation to amendments in cIyII actions, the follow- ing rules appear to be established : — First. That no amendment can be made which will affect the rights of persons not parties to the action in which the amendment is proposed ; and that, if such an amendment should be made, it will be held to be void as to a party affected by it who is not a party to the suit. Second. That the cause of action shall not be changed by any amendment of the declaration. Third. That on the question whether an amendment in- troduces a new cause of action, the court is not confined to the record for evidence of identity of the original declaration and the proposed amendment, but may go into extraneous evidence to show that they are for the same cause of action in fact. Fourth. In a case where an amendment can legally be made, its allowance or disallowance is a matter of discretion of the court in which the suit is pending, and is not subject to exception or appeal. Fifth. Amendments may be allowed introducing new par- ties, or otherwise changing the parties, changing the form of action, and changing an action at law into a suit in equity. Sixth. That, subject to the conditions and limitations stated in the preceding rules, the courts have full discretion- ary power to allow amendments of form and of substance, in every kind of writ and original process, declarations, and all subsequent pleadings and proceedings before final judgment, when substantial justice requires it. Seventh. That the terms on which any amendment may be allowed are within the discretion of the court, except in cases expressly provided for by statute or by standing rule of court.* § 17. Bill of Particulars. — In all actions at common. law in which the plaintiff declares generally, without specifying the ' See cases before cited. § 17.] PLEADING. 297 particulars of his cause of action, the court, upon application, will order him to give the defendant the particulars of his claim, in writing, before the latter shall be compelled to plead. Thus, in actions for work and labor, goods sold, money had and received, and the like, the defendant may call upon the plaintiff for the particulars of his demand.^ So in an action of debt upon a bond conditioned for the perform- ance of covenants, or to indemnify, or the like, the defendant may call for a particular of the breaches for which he is sued ; ^ and in an action where it was alleged in the declara- tion that the abstract of title delivered was " insufficient, defective, and objectionable," the court obliged the plaintiff to give a particular of all objections to the abstract, arising upon matters of fact.^ So in an action by a vendee to recover back his deposit, because the conditions of the sale had not been complied with, the defendant is entitled to the particu- lars of the ground on which the plaintiff seeks to recover.* In the case of the Commonwealth v. Snelling,^ Shaw, C. J. says : " The power of this court to order a bill of particulars in a case proper for its application has been recognized by this court as one of the powers incident to its general authority in the administration of justice." " Where in course of a suit from any cause a party is placed in a situation that justice cannot be done in the trial without the aid of the information to be obtained by means of a bill of particulars, the court has power to direct such in- formation to be reasonably furnished, and in an authentic form." " And there is no difference in this respect between trials of civil actions and criminal prosecutions," or libels for divorce.^ In all cases, civil and criminal, the question whether bills of particulars or specifications shall be ordered, is within the discretion of the presiding judge.' A refusal of the court to order specifications in a libel for a divorce is not subject to exception.^ 1 2 Arch. Pr. 221. « 15 Pick. 321, 329-331. 2 1 Tidd's Pr. 597. ' Gardner v. Gardner, 2 Gray, 434. ' Collet V. Thompson, 3 Bos. & Pul. ' Harrington v. Harrington, 107 246. Mass. 329. * Squire v. Todd, 1 Camp. 293. * Gardner v. Gardner, 2 Gray, 434. 298 PLEADING. [CH. XXVI. § 18. What a Bill of Particulars must contain. — A bill of particulars should give as much information as a special dec- laration, for which it is in fact a substitute, although without its form ; and as an insufficient declaration is a proper ground of nonsuit, so is an insufficient bill of particulars.^ In general, if the plaintiif 's particular convey the requisite information to the defendant, however inaccurately drawn up, it is sufficient. And if a bill of particulars state the transaction upon which the plaintiff's claim arises, it need not specify the tech- nical description of the right which results to the plaintiff out of that transaction.^ It should state the items of the demand, and when and in what manner they arose ; but it need not state the credits or payments made by the defendant.^ A particular referring to an account rendered is sufficient.* The date of the items should always be given in the bill, with as much particularity as possible ; if the plaintiff cannot state the precise day, he should give the month or year ; and this is a matter in relation to which the judge who grants the order must exercise a sound discretion, under all the circum- stances of the case.® Where the action is for a balance due upon an account-current, the particular should state the credit as well as the debit side of the account ; ^ and stating the debtor side only, or delivering a bill as general as the declara- tion, would be considered a contempt, and render the attorney liable to the payment of costs.' In all cases where an insufficient bill of particulars is deliv- ered, the defendant may move for further particulars ; ^ but he cannot treat the first bill as a nullity, and afterwards move to set aside the plaintiff's proceedings for not furnishing a suffi- cient bill." The bill having been served, the plaintiff is at liberty to 1 Babcock V. Thompson, 3 Pick. 446, * Humphrey v. Cottleyou, 4 Cow. 54. 448. 6 Mitchell v. Wright, 1 Esp. 280. 2 Brown v. Hodgson, 4 Taunt. 189. ' Adlington u, Adlington, 2 Camp. ' Brown v. Watts, 1 Taunt. 353 ; 410. Eyckman v. Haight, 15 Johns. 222. But ^ Humphrey v. Cottleyou, 4 Cow. 54. see Mitchell v. Wright, 1 Esp. 280. s Goodrich v. James, 1 Wend. 289. * Goodrich v. James, 1 Wend. 28a § 19.] PLEADING. 299 proceed in his action, the terms of the order being thereby complied with ; but where the first bill was insufficient, the defendant has the same time to plead after the order for a second bill as after the first order. ^ § 19. Effect of Mistake. — The object of this strictness is to prevent the opposite party from being deceived or misled as to the demands which the plaintiff may attempt to prove agaiAst him at the trial, and that the defendant may be pre- pared to meet the subject-matters of the action against him. A mistake, therefore, not calculated to deceive or mislead him, will not be deemed material.^ Thus, in the case last cited, where a mistake was made in the date of one of the items ; so, where a payment was made on account of the defendant to A., which was stated in the particular to have been made to B., Lord Ellenborough said he should hold it to be immaterial, unless the defendant would make affidavit that he was misled by the particular.^ In like manner, where in debt for rent the plaintiff in his particular described the premises as being in a different parish from that in which they really were, the court held the mistake to be immaterial, as the defendant could not have been misled by it.* So a variance between the amount of rent demanded in the bill of particulars, and that proved to be due, was held not to be material.^ But it is otherwise where the variance is material, or calcu- lated to mislead ; thus, it was held that evidence could not be given of work done in one year, where the date in the bill was the 1st of April in the next year.^ Although the plaintiff is confined in his proof to the items contained in his bill of particulars, yet if it appear from the defendant's own showing that the plaintiff is entitled to re- cover for items not included in the bill, he shall recover for such items.'' So where the plaintiff declared upon three bills of exchange, but sought by his particular to recover on the ' Mulholand v. Van Fine, 8 Cow. ^ Tenny v. Moody, 3 Bing. 3. 132. « 2 Paine & Dtier's Pr. 154. 2 Milwood V. Walter, 2 Tannt. 224. '^ Hurst v. Watkins, 1 Camp. 68 ; " Day V. Bower, 1 Camp. 69, note. Williams ». Allen, 7 Cow. 316. ' Davies v. Edwards, 3 Maule & S. 380. 300 PLEADING. [CH. XXVI. bill set out in the first count only, it was held that he might give the other bills in evidence, to prove a collateral matter, namely, the partnership of the defendants.^ § 20. Effect of Bill of Particulars. — After the bill of particu- lars is furnished, the plaintiff cannot, upon trial of the action, contradict it, or give evidence of any demand not contained in it, unless specially declared upon in some count of the decla- ration. The bill, in fact, becomes a part of the declara,tion ; as, where the bill of particulars stated the plaintiff's demand to be for goods sold and delivered to the defendant, the plain- tiff was not allowed at the trial to give evidence of goods sold by the defendant, as agent for the plaintiff; ^ so, where the particular was of a promissory note only, and when the note was produced at the trial, it was found to be written on an im- proper stamp, the court held that the plaintiff was precluded from resorting to his money counts.^ But under such partic- ular, after proving the due execution of the note, the plaintiff may recover interest upon it.* Where the plaintiff's particular stated various sums of money due by the defendant, but some of which were in fact owing from the defendant and his partner, and not from the defendant alone, and the defendant pleaded the non-joinder in abatement, the plaintiff was not allowed to give evidence of those due from the defendant solely, because they were not distinguished from others in the bill of particulars.^ § 21. Mode of obtaining it. — The bill of particulars is obtained by motion, which should be in writing, or it may be done by an entry to that effect on the docket ; and the order of the court will be upon the docket, which, if so moved for, will state the time within which the bill must be furnished. This will be handed to the clerk when furnished, and he will place it among the papers of the case. In case the plaintiff or defendant fail to comply with the order, he will become nonsuited or defaulted upon motion.® 1 Duncan v. Hill, 2 Brod. & Bing. s 'W'ade i>. Beasley, 4 Esp. 7. 682. i Blake v. Lawrence, 4 Esp. 147. ^ HoUand o. Hopkins, 2 Bos. & Pul. ^ Colson v. Jelby, 1 Esp. 452. 243. 6 Howe's Pr. 412. § 24.] PLEADING. 301 According to the English practice, if the plaintiff neglect to deliver the particulars of his demand, the only consequence is that he cannot, in the mean time, proceed in his action.^ In answer to a request by the defendant's attorney for a bill of particulars, the plaintiff's attorney wrote to him that the claim was on the note specified in the declaration, and no order for a bill was obtained ; it was held that the plaintiff, on the trial, was bound by the letter, as a bill of particulars.^ § 22. Bills of Particulars required by Statute. — The Public Statutes provide that " 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 to be part of the record, and be answered or replied to as such," ^ and " that the court may in all cases order either party to file a statement of such particulars as may be necessary to give the other party and the court rea- sonable knowledge of the nature and grounds of the action or defence." * § 23. These provisions VT-ere enacted in 1852, and were a part of the act known as the " Practice Act " ^ of that year. They did not change the previous law in relation to bills of particulars, except by requiring that in the cases therein named, the plaintiff should file a bill of particulars with his writ when the action is entered, and enlarging the powers of the. court to order either party to file a statement of particulars. § 24. When the Bill of Particulars is Insufficient. — By rules of the Superior Court it is provided that " whenever it shall be objected that a bUl of particulars is insufficient, and the court shall so adjudge, such bill shall be stricken from the files ; and if the same were filed by the plaintiff, he shall thereupon become nonsuit ; or if the same were filed by the defendant, he shall not be allowed to offer evidence in sup- port thereof, unless the court shall give leave to amend such 1 2 Arch. Pr. 222. * Pnb. St. c. 167, § 61. 2 Williams v. Allen, 7 Cow. 316. ' St. of 1852, c. 312, § 4, 58. » Pub. St. c. 167, § 10. 302 PLEADING. [CH. XXVI. bill or to file a new bill, upon tlie terms prescribed by the fifteenth rule." i § 25. The want of a bill of particulars under the common counts cannot be objected to by the defendant after the trial has begun.2 A common count on an account annexed will give juris- diction although no account is annexed nor any bill of par- ticulars filed with the writ when the action is entered. It is amendable by annexing such bill.^ A bill of par- ticulars should give as much information as a special declara- tion.* §26. Set-off. — Set-off is a demand which the defendant holds agaiinst the plaintiff, which he sets up in the action to counterbalance, in whole or in part, any claim which the plaintiff may prove against him. The set-off does not admit the plaintiff's claim, or any part of it. It is in the nature of a cross-action.^ The principle of set-off was unknown to the common law. The right to it, in England and in this country, is derived from the statutes. § 27. Statutes as to Set-off. — The statutes of Massachu- setts provide that : — " Sect. 1. When there are mutual debts or demands be- tween the plaintiff and defendant in an action, one demand may be set off against the other, as provided in the statutes. " Sect. 2. No demand shall be set off unless it is fpunded upon a judgment or upon a contract, but the contract may be either express or implied, and with or without a seal. " Sect. 3. No demand shall be set off unless it is for the price of real or personal estate sold, or for money paid, money had and received, or for services done, or unless it is for a sum that is liquidated, or one that may be ascertained by calculation. " Sect. 4. No demand shall be set off unless it existed at the time of the commencement of the suit, and then belonged to 1 Rale 11. * Babcock v. Thompson, 3 Pick. ' Preston v. Neale, 12 Gray, 222. 446. 8 Burgess v. Bugbee, 100 Mass. 152. ' Pub. St. c. 168, § 17. § 27.] PLEADING. 303 the defendant, nor unless it is due to him in his own right, except as is provided by statute. " Sect. 5. A demand assigned to the defendant with notice to the plaintiff of the assignment before the commencement of the action may be set off in like manner as if it had been originally payable to the defendant. " Sect. 6. If the demand set off is founded on a bond or other contract having a penalty, no more shall be set off than the sum equitably due. " Sect. 7. The set-off shall be allowed in all actions found- ed upon demands which could themselves be the subject of set-off according to law, and in no others. " Sect. 8. If there are several plaintiffs, the demand set off shall be due from all of them jointly ; and if there are several defendants, the demand set off shall be due to all of them jointly, except as follows : — " Sect. 9. When the person with whom any contract is made has a dormant partner, and a suit is brought on such contract by or against the partners jointly, any demand due to or from the person with whom the contract was made may be set off in like manner as if such dormant partner had not been joined in the suit. " Sect. 10. If the demand on which the action is brought has been assigned, and the defendant had notice of the assign- ment, he shall not set off any demand that he acquires against the original creditor after such notice. " Sect. 11. When an action is brought by one person in trust, or for the use or benefit of another, the defendant may set off any demand against the person for whose use or benefit the action is brought, in like manner as if that person were the plaintiff in the suit. " Sect. 12. In an action by an executor or administrator, a demand against his testator or intestate which at the time of his death belonged to the defendant, may be set off in the same manner as if the action had been brought by the de- ceased. " Sect. 13. When upon such a set-off against an executor or administrator a balance is found due to the defendant, the judgment therefor against the plaintiff shall be in the same 304 PLEADING. [CH. XXVI. form and have the same effect as if the suit had been origin- ally commenced by the defendant.^ " Sect. 14. In actions against executors and administrators, and against trustees and others, sued in their representative character, the defendants may set off demands belonging to their testators or intestates or those whom they represent, in the same manner as the persons represented would have been entitled to set off the same in an action against them- selves. " Sect. 15. In suits brought by or against executors, ad- ministrators, or trustees, in their representative character, no demand can be set off that is due to or from such executors, administrators, or trustees in their own right." ^ § 28. Set-off to Set-off. — If the defendant files a set-off, the plaintiff, in answer to the declaration in set-off, may in his turn file a set-off to the defendant's demand.^ § 29. Construction of Statutes as to Set-off. — The specifica- tions in the statutes here cited, of the demands which may and which may not be pleaded in set-off, are so numerous and cover so fully the various kinds of cases which may occur, that in a work of this character it may be deemed unnecessary to add anything to them. Reference, however, to a few decided cases seems desirable as to the application of the statutes to the facts in those cases. It is held that a claim arising from the negligence of the plaintiff, as a factor in relation to merchandise consigned to him, cannot be set off.^ The demands must be due on simple contract, and not by specialty or record, and they must be for a certain sum, or a sum capable of being reduced to a certain charge, or account, and not for unliquidated damages. Under the head of " moneys paid," the defendant may file an account for moneys had and received,* and may give in evidence promissory notes of the plaintiff payable to himself, or indorsed to him, before the action was commenced.^ 1 Pub. St. c. 168, § 1-15. 4 Richards v. Blood, 17 Mass. 66; 2 Galligau v. Fannan, 9 Allen, 192. Trnesdell v. Wallis, 4 Pick. 63. ' Adams v. Manning, 17 Mass. 178. > Sargent v. Southgate, 5 Pick. 312; Braynard v. Fisher, 6 Pick. 355. § 30.] PLEADING. 305 A demand for board, washing, and lodging is within the meaning of "goods delivered and services done," and may- be filed in set-off.^ A demand for unliquidated damages is not the subject of set-off.2 A demand, to be the subject of set-off, must be a debt for a certain specific pecuniary amount and reconcilable in an action of contract. It is in strict sense a cross debt or demand due to the de- fendant, unconnected with the plaintiff's claim, so that it could not be shown in payment or reduction of the amount due thereon at common law.^ In a suit by a surviving partner to recover a debt due to the firm, the defendant may set off a debt due to him from the surviving partner alone.* § 30. Set-off against Negotiable Notes. — In the cases of Baxter v. Little,^ Shaw, C. J., says : " The English rule in allowing set-off in action upon a note is somewhat more limited than our own confining such defence to equities arising out of the same note or transaction connected with it." Here it has been held that an independent demand may be set off', when, in other respects, the party is entitled to go into that defence.® In the case above referred to, it was held that, when the second indorsee of a promissory note brings an action thereon against the maker or first indorser, the defendant cannot set off any claim which he has against the first indorsee, except such as existed at the time of the transfer of the note to the plaintiff, although he had no notice of such transfer when he acquired his claim against the first indorsee.^ The case of Baxter v. Little is cited with approval by the court in the case of Bond v. Fitzpatrick,^ and it is there held that the indorsee of a promissory note overdue takes it sub- 1 Witter V. Witter, 10 Mass. 223. « 6 Met. 7, 12. 2 Montague v. Boston & Fairhaven ^ Sargent v. Southgate, 5 Pick. 312. Iron Works, 97 Mass. 502. ' 6 Met. 7. 8 Cook V. Mills, 5 Allen, 37. 8 4 Qray, 89, 92. * Holbrook v. Lackey, 13 Met. 132. 20 306 PLEADING. [CH. XXVI. ject to any payments made to any prior holder and to any right of set-off which the maker had against it in the hand of any prior holder. And the case of Baxter v. Little is again referred to with approval by the court in the case of Cook v. Mills, ^ in which case it is held that an overdue promissory note of a plaintiff, indorsed to and held by the defendant before the commence- ment of an action against him, is a proper subject of set-off, although no notice that the defendant held the same was given to the plaintiff before the commencement of the action. In an action on a promissory note transferred to the plaintiff by indorsement before its maturity, no set-off is admissible in defence.^ The bearer of a note payable to one name or bearer takes it subject to no equities or right of set-off which the maker would have against the original payee.^ In an action by an indorsee against the maker of a nego- tiable note, fraudulently indorsed by the payee after it was dishonored, the defendant was allowed to avail himself, under the general issue, of notes given to him by the payee before ' the indorsement.* § 31. Declaration in Set-off. — When the defendant relies on a claim by way of set-off, he must file a declaration, en- titling it a declaration in set-off, and adapted to the claim in like manner as though an action were brought upon it.^ § 32. Such declaration in set-off must be filed with the an- swer in cases pending in the Supreme Judicial Court and Superior Court, and in actions before the Municipal Court of the city of Boston the defendant may file his declaration in set-off at any time during the return term of the writ, and upon motion the court may for good cause shown and upon suitable terms allow him to file it at any time ; in actions before any other municipal court, or before a police or district court or trial justice, the defendant must file his declaration in set-off at the time when the action is entered, or within 1 5 Allen, 36. Bigelow's Bills and Notes,»339, 437. 2 Barker v. Valentine, 10 Gray, 34]. 3 Pettee v. Prout, 3 Gray, 502. The authorities upon the subject here < Stockbridge v. Damon, 5 Pick. 223. briefly noticed are collected at length in ' Pub. St. c. 168, § 16. § 38.] PLEADING. 307 such further tune as the justice or court may for special reasons allow.^ If a set-off is not filed with the answer, it is competent for the court to allow it to be filed afterwards.^ Evidence of a set-off is not admissible unless set-off is pleaded.^ § 33. The subsequent allegations and pleadings respecting the defendant's demand are governed by the same rules as if an action had been brought thereon ; and the plaintiff shall be entitled to every ground of defence against it of which he might have availed himself by an answer or otherwise in an action brought against him.* § 34. Limitation of Set-off. — " If any law for the limitation of actions is alleged by way of defence to the defendant's de- mand, the limitation shall be applied in the same manner as it would have been to an action brought on the same demand if it had been commenced at the time when the plaintiff's action was commenced.^ § 35. Costs in Set-off. — " If an amount is proved to be due on the set-off equal to the amount due to the plaintiff, the court may award costs to either party, or dismiss the action without costs ; and if the amount so proved is less than the sum due to the plaintiff, he shall have judgment for the balance.® § 36. Judgment. — "If it appears that there Is a balance due from the plaintiff to the defendant, judgment shall be rendered for the defendant for the amount thereof, with his costs ; but no such judgment shall be rendered against the plaintiff when the demand for which the action is brought was assigned before the commencement of the suit, nor for any balance due from any other person than the plaintiff.^ § 37. Plaintiff cannot discontinue his Action. — " After a de- claration in set-off is filed, the plaintiff shall not be allowed to discontinue his action, unless by consent of the defendant."* § 38. Set-off in Municipal Court of the City of Boston. — In 1 Tnt St. c. 168, § 16, 22. » Put. St. .;. 168, § 18. 2 Higby V. Upton, 3 Met. 411. 6 Pnb. St. i;. 168, § 19. 8 Skinner v. King, 4 Allen, 498. ' Pub. St. u. 168, § 20. * Pub. St. c. 168, § 17. 8 Pub. St. c. 168, § 21. 308 PLEADING. [CH. XXVI. actions before the municipal court of the city of Boston the defendant may file his declaration in set-off at any time during the return term of the writ, and upon motion the court may for good cause shown and upon suitable terms allow him to file it at any time ; in actions before any other municipal court, or before a police or district court or trial justice, the defend- ant shall file his declaration in set-off at the time when the action is entered, or within such further time as the justice or court may for special reasons allow. All the other proceed- ings shall be the same as are before prescribed with respect to actions in other courts ; but no judgment for a defendant Khali exceed the sum for which the court or trial justice might render judgment for a plaintiff.^ § 39. Setting off Judgments. — When judgments in cross- actions are recovered^ the court in which the judgments are rendered will, on application, set off one judgment against the other, so far as the same will extend, and issue execution for the balance ; and, for that purpose, either action may be continued until judgment can be rendered in both.^ This power is assumed by the court, for the furtherance of justice, and does not depend upon any statutory provision.^ The court will exert this power liberally, for the purposes of equity, by continuance of cases, until judgment in a cross- action can be rendered, and even for the purpose of enabling a party to commence a suit for that purpose. No reference is had to the cause of. action on which the judgment in the cross-action is rendered ; for whether originating in contract or tort, the certainty and extent of the claim is rendered equally obvious by the verdict.* Judgments may be set off against each other, when a part only of the debtors on one side are creditors on the other, and even where a part of the debtors on one side are joint creditors with others, if those others consent to such an arrangement.^ 1 Pub. St. c. 168, § 22. ' Mitchell v. Oldfield, 4 T. R. 123. 2 Makepeace v. Coates, 8 Mass. 451 ; * Howe's Pr. 350. Greene v. Hatch, 12 Mass. 195 ; Adams ^ Hathaway v. Russell, 16 Mass. 473; V. Manning, 17 Mass. 178 ; Winslow v. Mitchell v. Oldfield, 4 T. R. 123. Hathaway, 1 Pick. 211. § 40.] PLEADING. 309 In an action by a judge of probate on a probate bond, brought for the benefit of an heir, legatee, or other person, the judgment will be set off against a judgment recovered by the defendant, against such person, although the judgments are not in form between the same parties.^ But the court will not permit one judgment to be set off against another, between the same parties, when it appears that persons other than the nominal parties are interested, by the assignment of the demand on which one of the suits was commenced.^ But if both the demands were in existence at the time of the assignment, the courts will set off the judgments, though an assignment may have been made, before the commence- ment of the suit. The assignee takes it subject to all the equities that may be attached to it.* If, however, at the time of the assignment, the assignee of the debtor gives notice of it to the creditor, who discloses no counter-claim, but conceals his intention to claim a set-off until an action is commenced by the assignee, this will be considered as a waiver of a right to set off the judgments, and an acquies- cence in the assignment ; * so a promise by the creditor to pay to the assignee of the debtor takes away the right of set-off.® The power to set off judgments is discretionary, and the courts will not allow such set-off when it will affect injuri- ously the rights of an assignee of one of the judgments, or of other parties.* The set-off is not restricted to cases where the parties to the record are the same ; '' nor to judgments in the same court. § 40. When a plaintiff resides out of the State the following provisions as to set-off of judgments are made by statute : — " When an action is brought by a person who is not an in- habitant of this State, or who cannot be found therein to be 1 Barrett v. Barrett, 8 Pick. 342. ^ Mowry v. Todd, 12 Mass. 281. 2 Makepeace v. Coates, 8 Mass. 451. « Makepeace v. Coates, 8 Mass. 451 ; * Goodwin v. Cunningham, 12 Mass. Ames v. Bates, 119 Mass. 397. 193. ' Burnham v. Tucker, 18 Me. 179. * King V. Fowler, 16 Mass. 397 ; 19 Johns. 49. 310 PLEADING. [CH. XXVI. served with process, he shall be held to answer to any action brought against him here by the defendant in the first action, if the demands in the two cases are of such a nature that the judgment or execution in the one case can be set off against the judgment or execution in the other. " If there are several defendants in the original action, each of them may bring such cross-action against the original plaintiff, and may be allowed to set off his judgment against that which may be recovered against himself and his co-de- fendants in like manner as if the latter judgment had been against himself alone. " The writ in such cross-action may be served on the per- son who appears as the attorney of the plaintiff in the origi- nal suit, and such service shall be as valid and effectual as if made on the party himself within this State. " The court in which the actions, or either of them, are pending, may order continuances as the}"^ think necessary or proper to enable the absent to defend the action brought against him, and also to enable either party to set off his judgment or execution against that which is recovered against him, but the actions shall not be unreasonably delayed by the neglect or default of either party." ^ § 41. Attorney's Lien. — In setting off judgments, the court •will alwa3-s protect the attorney, in his lien for fees, disburse- ments, and costs.2 In Massachusetts, it is held that the lien of an attorney is only for his taxable costs.^ See chapter on Attorneys, pp. 177-180. § 42. One summoned as trustee is to be allowed all his de- mands against the principal, of which he could avail himself in any form of action, or any mode of proceeding, between him and his principal, excepting, of course, all claims for un- liquidated damages for mere torts.* The demands must also be due in the same right. A debt due from an executor or administrator cannot be set off against a claim due to the estate. 1 Pub. St. c. 164, § 1-5. s New Haven Copper Co. u. Brown, 2 Ocean Ins. Co. v. Eider, 22 Pick. 46 Me. 418. 210. < Hathaway ». Russell,! 6 Mass. 473. § 45.] PLEADING. 311 § 43. In actions on policies of insursince the under writers have a right to set off against a loss not only their premium arising on the same policy, but also premiums arising upon other policies, entered into between the same parties, unless the policies have been assigned with the assent of the under- writer. This right arises from the lien which the law gives the underwriters in such cases. ^ In an action against an executor to recover a legacy, a debt due from the plaintiff to the testator may be set off against the legacy.^ A claim for unliquidated damages is not the subject of set-off.^ § 44. Set-off against Insolvent Estates. — In a case between an administrator of an insolvent estate and a creditor of the estate, the right of set-off is not limited to cases provided for by the statute of set-off. It extends to all cases where mutual demands exist which survive the death of the party ; and a defendant, therefore, when sued, may set up in defence claims not liquidated, as well as those the amount of which is ascertained.* § 45. What will destroy the Right of Set-off. — If the plaintiff had assigned his claim for a valuable consideration, before the debts due the defendant were contracted, and notice was given to the defendant, the latter cannot set off such debts.^ But an assignment afterwards, although notice is given to the defendant, will not deprive him of the right of set-off.® If the debtor, however, after the assignment, promise the assignee to pay him the debt, without reserving the right of setting off his demands, or if the debtor have notice of the intended assignment, and make no objection and give no no- tice of his counter-demands, he will be precluded from avail- ing himself of them, in the way of set-off.^ It is no objection to the set-off that the defendant has com- 1 Cleveland v. Clap, 5 Mass. 201. ^ Hallowell & Augusta Bank v. How- " Blackler v. Boott, 114 Mass. 24. ard, 13 Mass. 235. ^ Montague v. Boston & Tairhaven « Hatch v. Greene, 12 Mass. 195 ; Iron Works, 97 Mass. 502. Goodwin v. Cunningham, 12 Mass. 193. * McDonald y. Webster, 2 Mass. 498 ; 'Jones v. Witter, 13 Mass. 304; Jarvis v. Eogers, 15 Mass. 407 ; Phelps Gardiner v. Corson, 15 Mass. 500. II. Rice, 10 Met. 128, 132. 312 PLEADING [CH. XXVI. menced a suit against the plaintiff, upon his demands ; nor, if the plaintiff be the indorsee of a discredited promissory note, that a suit has been commenced, and is pending, and defaulted, against the indorser, on the demands against him, which are filed.i § 46. Discontinuance of Suit and Withdrawal of Set-off. — Generally, a plaintiff may discontinue his action before ver- dict, although the defendant has filed a set-off, and introduced evidence in support of it, however such discontinuance is forbidden by statute, unless by consent of the defendant.^ The defendant may withdraw his set-off before judgment, and commence an action upon it.^ And a demand may be relied upon by way of set-off, although the defendant has commenced an action against the plaintiff on the same claim.* § 47. Judgment in Cases of Set-off. — When a claim in set- off is set up by the defendant in an action, if no balance is found due to either party, the claim of one party is satisfied by that of the other, and the court may allow costs to either party, or dismiss the action without costs. If a balance is found due to either party, judgment is entered in favor of such party. When such balance is found for the defendant, he is allowed costs.^ § 48. Recoupment. — The common-law doctrine of recoup- ment is closely allied to the principle of set-off. It is defined as the keeping back of something which is due.^ It applies in an action for a breach of contract between the plaintiff and defendant, where the latter can show that some stipula- tion in the contract made by the plaintiff has been violated by him. In such a case the defendant may recoup his dam- ages for the breach of the contract by the plaintiff. Thus the practice of recoupment avoids circuity of action. Eecoupment is contradistinguished from set-oif in these three essential particulars : 1st. In being confined to matters arising out of, and connected with, the transaction or con- 1 Sargent v. Southgate 5 Pick. 312. * Sargent v. Southgate, 5 Pick. 312. •" Pub. St. c. 168, § 21. 6 Pub. St. c. 168, § 19, 20. > Cary v. Bancroft, 14 Pick. 318. = 5 Jacob, Law Diet, Eecoup. § 48.} PLEADING. 313 tract upon which the suit is brought. 2d. In having no regard to whether or not such matter be liquidated or un- liquidated ; and, 8d. That the judgment is not the subject of statutory regulation, but controlled by the rules of common law.^ The subject will be further considered in the chapter on Damages. 1 Waterman on Set-o6F, 481. 314 PLEADING. [CH. XXVII. CHAPTER XXVII. PLEADING. PART FOURTH. § 1. A plea of a statute of limitations is a plea in bar. It sets forth that the cause of action mentioned in the plaintiff's writ did not accrue within the number of years before the suing out of the writ required by the statute. The policy of the statutes is to prevent suits on stale demands or claims after the facts relating to them are forgotten or rendered incapable of proof. A certain number of years are allowed to persons asserting claims against other parties to commence suits to recover them, and their neglect to do so within the period of time so allowed to them raises a presumption of payment. § 2. The Plea is not Unjust or Discreditable. The defence may properly be made by any person against whom a suit is brought, after a lapse of years, when it has become difficult or impossible to maintain a defence to the claim on the merits. The defence has no connection with the original contract on which the action is founded, or the original liability under it, but it assumes that whatever rights or claims the plaintiff may have once had against the defendant have been extin- guished or surrendered. The defence must be pleaded specially. It cannot be set up under the general issue.^ § 3. The form given in the Public Statutes is as follows : " 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." ^ 1 Pub. St. c. 167, § 20; Middlesex 2 Pub. St. t. 167, § 94. Company o. Osgood, 4 Gray, 448; 1 Chitty, PI. 472. § 6.] PLEADING. 315 § 4. The form of replication given is as follows : " 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 ac- knowledged said debt, and agreed to pay the same." " He further says the defendant has been absent from this Commonwealth for the space of three years last past." ^ For reasons of policy, different periods of time are allowed for the commencement of different classes of actions after the cause of action has accrued. The time limited for the commencement of different classes of actions varies from one year to twenty years from the time when the cause of action accrued. § 5. Actions limited to Six Years. — The Public Statutes provide that " the following actions shall be commenced within six years next after the cause of action accrues, and not afterwards : — " First, Actions of contract founded upon contracts or liabilities not under seal, express or implied, except such actions as are brought upon judgments or dedrees of courts of record of the United States, or of this or some other of the United States. " Second, Actions for arrears of rent, except upon leases under seal. " Third, Actions of replevin, and all other actions for taking, detaining, or injuring goods or chattels. " Fourth, All actions of tort except those hereinafter men- tioned." 2 The first clause above quoted applies to debts or liabilities created by statute, such as the personal liability of a stock- holder in a corporation for the debts of the corporation.^ § 6. When the Cause of Action accrues. — On a note pay- able on demand, the cause of action accrues as soon as the note is given, even though by the terms of such note it does not bear interest until after a given date.* Against a claim 1 Pub. St. c. 167, § 94. 195; Commonwealth ». Cochituate Bank, 2 Pub. St. c. 197, § 1. 3 Allen, 42, 46. 8 Baker v. Atlas Bank, 9 Met. 182, * Newman ti. Kettelle, 13 Pick. 418. 316 PLEADING. [CH. XXVII. upon a principal debtor by a surety who has paid the debt, the Statute of Limitations runs not from the time when the debt was due, but from the time when the surety paid it.^ On a deposit note given by a member of an insurance com- pany, whereby he agrees to pay a sum certain, or any part thereof, when required, and which by its terms is the absolute funds of the company, the Statute of Limitations does not run until an assessment is laid.^ There is no presumption of law, from the fact that more than six years have elapsed since the date of a promissory note, that the right of action thereon is barred by the Statute of Limitations.* " In an action of contract brought to recover the balance due upon a mutual and open account current, the cause of action shall be deemed to have accrued at the time of the last item proved in the account." * § 7. Actions limited to Four Years. — The statutes pro- vide that "actions against sheriffs for the misconduct or negligence of their deputies shall be commenced within four years next after the cause of action accrues, and not after- wards." ^ A cause of action against an ofBcer for not paying money collected by him on execution does not accrue until demand is made on him for payment ; and the statute begins to run from the time of the demand.^ § 8. Actions limited to Two Tears. — It is provided by statute that " actions for assault and battery, for false impris- onment, for slanderous words, and for libels, and actions for the taking or conversion of personal property brought against executors, administrators, guardians, trustees, sheriffs, deputy- sheriffs, constables, and assignees in insolvency, shall be commenced within two years next after the cause of action accrues, and not afterwards." ^ An action against a sheriff for an assault and false im- 1 Thayer v. Daniels, 110 Mass. 345. « Pab. St. c. 197, § 8. ' Bigelbw V. Libby, 117 Mass. 359. 6 p^h. St. c. 197, § 2. * Thomas v. Waterman, 7 Met. 227, « Weston v. Ames, 10 Met. 244. 229. 1 Pub. St. c. 197, § 3. § 11.] PLEADING. 317 prisonmenfc committed by his deputy is barred in two years by this statute.^ § 9. Actions limited to One Tear. — It is further provided by statute that " actions and suits for penalties or forfeitures under penal statutes, if brought by a person to whom the penalty or forfeiture is given in whole or in part, shall be commenced within one year next after the ofPence is commit- ted, and not afterwards." ^ " If the penalty or forfeiture is given in whole or in part to the Commonwealth, a suit therefor may be commenced by or in behalf of the Commonwealth at any time within two years after the offence is committed, and not afterwards." ^ § 10. Action on a "Witnessed Note. — The statutes provide that " none of the foregoing provisions shall apply to an ac- tion brought upon a promissory note signed in the presence of an attesting witness, if the action is brought by the original payee or by his executor or administrator ; nor to an action brought upon bills, notes, or other evidences of debt issued by a bank." * This section applies to promissory notes, though not nego- tiable. It applies to any note in writing by which one prom- ises to pay money to another.^ It was held to apply when the words were written on the back of a note : " I hereby renew the within note." ^ To constitute an attestation of a note within this statute, the witness must put his name to it openly and under circum- stances which reasonably indicate that his signature is with the knowledge of the promisor and is a part of the transaction, with the making of the note.^ It is not necessary that there should be any words of attestation over the signature.^ § 11. Actions limited to Twenty Years. — It is provided by statute that "personal actions on contracts not limited by the preceding sections or by any other law of this Commonwealth 1 Sibley v. Estabrook, 4 Gray, 295. « Daggett v. Daggett, 124 Mass. 149. 2 Pub. St. c. 197, § 4. ' Drury u. Vannevar, 1 Cush. 276 ; ' Pub. St. c. 197, § 5. Smith v. Dunham, 8 Pick. 246. * Pub. St. c. 197, § 6. 8 Faulkner v. Jones, 16 Mass. 290. 5 Sibley «. Phelps, 6 Cush. 172 ; Grin- nell V. Baxter, 17 Pick. 386. 318 PLEADING. [CH. XXVII. shall be brought within twenty years after the cause of ac- tion accrues." ^ Tlie sections here referred to are the previous sections of chapter 197 of the Public Statutes. It is held that an action on a probate bond may be brought at any time within twenty years after the breach of the con- dition relied on as the ground of action.* If there is any incumbrance at the time it is conveyed with a covenant against incumbrances, the covenant is broken as soon as it is made, a cause of action accrues to the grantee, and unless the action is commenced within twenty years from that time it is barred by the Statute of Limitations.^ § 12. "When the Time of Limitation is extended. — If a per- son entitled to bring any of the actions before mentioned is, at the time when the cause of action accrues, within the age of twentj'-one years, disabled by marriage, insane, or im- prisoned, he may bring the action within the time herein- before limited therefor, after the disability is removed.* " When a person is disabled to prosecute an action by rea- son of his being an alien subject or citizen of a country at war with the United States, the time of the continuance of such war is not deemed part of the respective periods herein limited for the commencement of the actions before mentioned.^ " If, at the time when a cause of action mentioned in this chapter accrues against a person, he is out of the Common- wealth, the action may be commenced within the time herein limited therefor, after he comes into the Commonwealth ; and if, after a cause of action has accrued, the person against whom it has accrued is absent from and resides out of the Commonwealth, the time of his absence is not taken as part of the time limited for the commencement of the action, pro- vided that no action shall be brought by any person whose cause of action has been barred by the laws of any State, Territory or country while he has resided therein."® Temporary absences, although extending over consecutive 1 Pub. St. c. 197, § 7. . * Pnb. St. c. 197, § 9. « Prescott V. Read, 8 Cash. 305. « Pub. St. c. 197, § 10. » Clark V. Swift, 3 Met. 390. « Pub. St. c. 197, § 11. § 13.] PLEADING. 319 periods of several months, but effecting no change in the legal domicile of the debtor, do not operate to extend the period of limitation, but are to be included in reckoning the time within which an action may be commenced against him.^ If a person domiciled in this State becomes liable for a debt when absent therefrom, the Statute of Limitations begins to run in his favor as soon as he returns openly to the State, although his creditor does not know of his return, and he has no prop- erty in the State which can be attached. Absences from the State on military service are not to be deducted from the time of limitation, if the debtor retains his domicile there.^ But if a debtor is absent from and resides out of the State, retaining no dwelling-house or boarding-place here, though intending to return at some future indefinite time, he has no domicile here, and the time of his absence is to be deducted from the period of limitation of actions against him.^ A person who has a domicile and actual residence in another State, and only comes into this State occasionally, or even for a few hours daily, is " absent from and resides out of the State," within the meaning of the statute, and the Statute of Limitations does not run in his favor.* If a debtor dies after he removes from the State, the time during which the statute will not run will not include the time after his death.^ The statute begins and continues to run while the debtor is within the State, although brought here under a warrant for crime and then imprisoned here.* § 13. 'When the Writ is abated or fails. — If, in an action duly commenced within the time limited and allowed in the statute, the writ fails of a sufficient service or return by an unavoidable accident, or by a default or neglect of the officer to whom it is committed, or if the writ is abated or the action otherwise avoided or defeated by the death of a party there- to, or for an}' matter of form, or if, after a verdict for the 1 Lansdon v. Doud, 6 Allen, 423, 424. ^ Corliss Steam Engine Co. v. Schu- 2 Whitton V. Wass, 109 Mass. 40. macher, 109 Mass. 416. ' Sleeper v. Paige, 1 5 Gray, 349. o Turner ii. Shearer, 6 Gray, 427. * Eockwood V. Whiting, 118 Mass. 337. 320 PLEADING. [CH. XXVH. plaintiff, the judgment is arrested, or if a judgment for the plaintiff is reversed on a writ of error, the plaintiff may com- mence a new action for the same cause at any time within one year after the abatement or other determination of the original suit, or after the reversal of the judgment ; and if the cause of action by law survives, the executor or adminis- trator of the plaintiff may commence such new action within the year.^ § 14. An action is held to be duly commenced when com- menced within the time allowed by the Statute of Limitations by writ returnable according to law, containing a declaration adapted to the cause of action.^ Where the officer made return on a writ that he could not find the defendant in his precinct, it was held that the writ failed of a sufficient service by un- avoidable accident.^ The dismissal of an action because of the accidental omission of a clerk to enter it seasonably on the docket is held to be a defeat of the action for matter within the meaning of ij;he statute.* § 15. Fraudulent Concealment of Cause. — If a person liable to any of the actions mentioned in this chapter fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within six years after the person entitled to bring the same discovers that he has such cause of action, and not afterwards.* It is held that it is necessary to prove a concealment and a discovery of the fraud within six years ; but that there is no concealment if the party possesses the full means of ac- quiring knowledge of the facts, and that the fraud must be actual and not constructive.® What is constructive fraud ? In the case of Farnam v. Brooks,^ Parker, C. J., says : " It is not very easy to extract any precise rule as to setting aside contracts on the ground of constructive fraud, from the 1 Pub. St. c. 197, § 13. 6 Farnam v. Brooks, 9 Pick. 213, 246 ; 2 Woods V. Houghton, 1 Gray, 580. Atlantic National Bank v, Harris, 118 8 Bullock V. Dean, 12 Met. 15. Mass. 147, 153. * Allen V. Sawtelle, 7 Gray, 165. f 9 Pick. 212, 232. « Pub. St. c. 197, § 14. § 17.] PLEADING. 321 numerous decisions in chancery upon the subject. There are considerable shades of difference in the manner of stating the rule or principle by different judges of the chancery courts, leaving it much to be apprehended that, instead of a general rule applicable to all cases of a like general charac- ter, the features of each case have formed a rule for itself, thus opening that broad discretion which, how^ever it may be disavovi^ed, is practically exercised by courts of equity." The subject is quite fully considered in the case referred to, and more fully in Bigelow on Fraud. To consider it here is not within the scope of this work. § 16. Actions against Executors and Administrators. — The Public Statutes provide that " if a person entitled to bring or liable to any action before mentioned dies before the expira- tion of the time hereiu limited, or within thirty days after the expiration of said time, and the cause of action by law sur- vives, the action may be commenced by or against the execu- tor or administrator of the deceased person, at any time within two years after the grant of letters testamentary or of administration." ^ This section is held to apply to an action brought by one who is appointed in this State administrator of the estate of an inhabitant of another State, within twenty years from the death of such inhabitant, if it is commenced within two years after the first appointment of such administrator.^ § 17. New Promise to pay Old Debt. — In actions of con- tract no acknowledgment or promise is evidence of a new or continuing contract whereby to take a case out of the opera- tion of the provisions of c. 197 of the Public Statutes, or to deprive a party of the benefit thereof, unless such acknowl- edgment or promise is made or contained by or in some writ- ing signed by the party chargeable thereby." It is not necessary, in order to revive a debt barred by the Statute of Limitations, that any specific sum should be ac- knowledged to be due, as the amount actually due may be proved by extrinsic evidence, provided the acknowledgment 1 Pub. St. c. 197, § 12. 8 Pub. St. c. 197, § 15. " Gallup V. Gallup, 11 Met. 445. 21 322 PLEADING. [CH. XXVII. is broad enough in its terms to include guoh debt, and suffi- ciently particular to show that it was the subject-matter of the acknowledgment. There must be an express promise to pay, or an unqualified acknowledgment of present indebted- ness, and this unaccompanied by any evidence showing a de- termination not to pay.' § 18. Effect of Part Payment — The provisions of sections 12 to 15 inclusive of chapter 197 of the Public Statutes do not alter, take away, or lessen the effect of a payment of any principal or interest made by any person ; but no indorsement or memorandum of any such payment, written or made upon a promissory note, bill of exchange, or other writing, by or on behalf of the party to whom such payment is made or purports to be made, is deemed sufficient proof of the pay- ment, so as to take the case out of the provisions of the statute.^ An oral admission by a defendant that he has made a pay- ment on the demand in suit within six years next before the suit was commenced is competent evidence to take the case out of the Statute of Limitations,® but there must be an actual payment of money or its equivalent upon the principal or interest of the debt to take the case out of the statute. An indorsement in the handwriting of the debtor, but not signed by him, of a payment of a part of a promissory note,. will not prevent the operation of the Statute of Limitations if no money or valuable consideration actually passes between the parties at the time of the indorsement, even if the parties then orally agree that it shall be deemed to be a pajment/ § 19. Payment by One Joint Contractor. The statutes pro- vide that " if there are two or more joint contractors, or two or more joint executors or administrators of a contractor, no one of them shall lose the benefit of the provisions of this chapter so as to be chargeable by reason only of an acknowl- 1 Barnard v. Bartholomew, 22 Pick. ^ Pub. St. c. 197, § 16 ; Faulkner v. 291-293 ; Mumford v. Freeman, 8 Met. Bailey, 123 Mass. 588. 432 ; Stoddard v. Doane, 7 Gray, 387 ; » Williams v. Gridley, 9 Met. 482. Roscoe V. Hale, 7 Gray, 274; Chace v. ' Blanchard v. Blanchard, 122 Mass. TrafEord, 116 Mass. 529. 558. § 20.] PLEADING. 323 edgment or promise made or signed or by a payment made by any other or others of them." i It was formerly held in Massachusetts that an acknowledg- ment qr promise or a part payment by one of two joint debt- ors took the debt out of the Statute of Limitations as against both. That rule is wholly changed by, this statute. Under it, it is held that a payment of interest on a promissory note by the principal does not take the debt out of the statute as against a surety .^ It does not, however, apply to the case of partners, even after a dissolution of the partnership, provided the act is done prior to notice of such dissolution.^ In actions commenced against two or more joint contractors, or against two or more joint executors or, administrators of a contractor, if it appears on the trial or otherwise that the plaintiff is barred by the provisions of the statutes of limita- tions as to one or more of the defendants, but is entitled to recover against any other or others of them by virtue of a new acknowledgment or promise,, or otherwise, judgment will be given for the plaintiff as to the defendants against whom he is entitled to recover, and for the other defendant or de- fendants against the plaintiff.* If, in an action of contract, the defendant pleads or answers in abatement that any other person ought to have bieen jointly sued, and issue is joined thereon, and if it appears that the action was, by reason of the provisions of chapter 197 of the Public Statutes, barred against the person so named, the issue must be found for the plaintiff.^ § 20. To what Cases the Statute applies. — It is provided by the Public. Statutes, c. 19.7, tliat the provisions of that chapter shall apply to the case of any debt founded on con- tract, alleged by way pf set-off on the p^rt of a defendant ; and the time of limitation of such debt shall be computed in like manner as if an action had . been commenced therefor at the time when the plaintiff's action was commenced. Also to actions brought by the Commonwealth for its benefit, and 1 Pnb. St.c. 197, § 17. « Pub. St. c. 197, § 18. 2 Faulkner v. Bailey, 123 Mass. 688. » Pub. St. c. 197, § 19. ' Sage V. Ensign, 2 Allen, 245. 324 PLEADING. [CH. XXVII. to all actions and suits for a penalty or forfeiture on a penal statute, brought by any person to whom the penalty or for- feiture is given in whole or in part, shall be commenced within one year next after the offence is committed, and not afterwards. And that such provisions shall not apply to any action otherwise specially limited by law.^ The same chapter further provides that " every judgment and decree of a court of record of the United States, or of this or any other State, shall be presumed to be paid and satisfied at the expiration of twenty years after the judgment or decree was rendered." ^ Such presumption does not, how- ever, operate as an absolute bar to an action on such judgment, but the presumption may be rebutted by evidence showing that the judgment has not in fact been satisfied.^ § 21. limitation of Real Actions. — The statutes provide that " no person shall commence an action for the recovery of lands, nor make an entry thereon, unless within twenty years after the right to bring such action or to make such entry first accrued, or within twenty years after he, or those from, by, or under whom he claims, have been seised or possessed of the premises, except as is hereinafter provided. " If such right or title first accrued to an ancestor or prede- cessor of the person who brings the action or makes the entry, or to any other person from, by, or under whom he claims, the twenty years shall be computed from the time when the right or title so first accrued." * These provisions do not apply to writs of dower.^ Nor do they bar an action for the foreclosure of a mortgage unless the mortgagee has been disseised for twenty years by the mortgagor or some person claiming under him.® § 22. When the Right of Entry on Land accrues. — The Public Statutes (c. 196, § 3) provide that, in the construc- tion of that " chapter, the right to make an entry or to 1 Pub. St. c. 197, § 20-22. * Pub. St. c. 196, § 1, 2. ■" Pub. St. c. 197, § 23. 6 Bacon v. Mclntire, 8 Met. 87. 8 Denny v. Eddy, 22 Pick. 533 ; Chea- « Pub. St. c, 124, § 14. ver V. Perley, 11 Allen, 584. § 23.] PLEADING. 325 bring an action to recover land shall be deemed to have first accrued at the times respectively hereinafter mentioned ; that is to say, — " First, When a person is disseised, his right of entry or of action shall be deemed to have accrued at the time of such disseisin. " Second, When he claims as heir or devisee of one who died seised, his right shall be deemed to have accrued at the time of such death, unless there has been a tenancy by the curtesy or other estate intervening after the death of such ancestor or devisor, in which case his right shall be deemed to have accrued when such intermediate estate expired, or when it would have expired by its own limitation. " Third, When there has been such an intermediate estate, and in all other cases when the party claims by force of a re- mainder or reversion, his right, so far as it is affected by the limitation herein prescribed, shall be deemed to have accrued when the intermediate or precedent estate would have ex- pired by its own limitation, notwithstanding any forfeiture thereof for which he might have entered at an earlier time. " Fourth, The preceding clause shall not prevent a person from entering when entitled to do so by reason of any forfei- ture or breach of condition ; but if he claims under such a title, his right shall be deemed to have accrued when the forfeiture was incurred or the condition was broken. " Fifth, In all cases not otherwise specially provided for, the right shall be deemed to have accrued when the claimant or the person under whom he claims first became entitled to the possession of the premises under the title upon which the entry or the action is founded." ^ § 23. When is a Person disseised ? — Mere possession is not sufficient to constitute a disseisin, or, however long con- tinued, to affect the title of one to whom the estate belongs. To have any such effect the possession must be adverse and under a claim of right, and so open and notorious that both the claim of right and the occupation and possession are, or » Pub. St. V!. 196, § 3. 326 PLEADING. [CH. XXVII. must necessarily be presumed to be known to him against whose right the entry is made. Whenever a party relies upon a title thus acquired the burden of proof is upon him to substantiate every fact essential to maintain it.^ Where there is a continuous adverse possession by a disseisor and by parties to whom he has devised a life estate and a remainder in fee, the statute will continue to run from the time of the original disseisin.^ If a minister or other sole corporation is disseised, his right of entry and action pass to his successor.'' The statutes pro- vide the mode of procedure in cases where a party having a right to enter is under certain disabilities therein named.* It seems unnecessary to state particularly those disabilities. § 24. The Statutes of Frauds provide that no action shall be brought in any of the following cases : that is to say, — " First, To charge an executor or administrator, or an assignee under an insolvent law of this Commonwealth, upon a special promise to answer damages out of his own estate ; " Second, To charge a person upon a special promise to answer for the debt, default, or misdoings of another ; " Third, Upon an agreement made upon consideration of marriage ; " Fourth, Upon a contract for the sale of lands, tenements, or hereditaments, or of any interest in or concerning them ; or, " Fifth, Upon an agreement that is not to be performed within one year from the making thereof ; — " Unless the promise, contract, or agreement, upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged there- with, or by some person thereunto by him lawfully author- ized." 5 The subsequent sections of the chapter of the statutes here quoted from contain other specific provisions in relation to the application of the provisions here quoted.^ 1 Motte V. Alget, 15 Gray, 322, 324. * Pub. St. c. 196, § 5-7. 2 Haynes v. Boardman, 119 Mass. 8 Pub. St. c. 78, § 1. 41*- « Pub. St. c. 78, § 2-6; and seed 97, 3 Pub. St. c. 196, § 4. § 15. § 26.] Pl,EADING. 327 § 25. The contract or memorandum must be stated with reasonable certainty, so that it can be understood, from the writing itself without having recourse to parol proof. Unless the essential terms of the contract can be ascertained from the writing itself, or by a reference contained in it to some- thing else, the writing is not a compliance with the statute ; and if the agreement be thus defective it cannot be supplied by parol proof, for that would, at once, introduce all the mis- chiefs which the statute is intended to prevent.^ It must appear from the memorandum who are the con- tracting parties,^ and what is the subject of the contract.^ If no time is named in the contract for the fulfilment of it, it must be done in a reasonable time.* The statute provides that the contract or memorandum must be signed by the party to be charged thereby. The signing of the agreement by one party only is suffi- cient, provided it be the party to be charged. He is estopped by his signature from denying that the contract was validly executed, though the paper be not signed by the other party, who sues for the performance of it.® The signature may be made by an agent, and the memorandum may be made poste- rior in point of time to the contract of which it is the record.^ It may be made by a broker who may act for both parties and it is not necessary that the memorandum should be signed by him.^ § 26. Auction sales are held to be " within the Statute of Frauds, and the auctioneer is the agent of both parties, and lawfully authorized by the purchaser to sign the contract of sale for him as the highest bidder." ^ " The writing his name, as the highest bidder, in the memorandum of the sale 1 2 Kent's Com. 511; Morton v. Dean, Hartshorn, 13 Mass. 87 ; Slater v. Smith, 13 Met. 385; Boardman i;. Spooner, 13 117 Mass. 96, 98. Allen, 353 ; Gardner v. Hazelton, 121 ' Williams v. Bacon, 2 Gray, 387- Mass. 494. 391. "^ Sanborn v. Flagler, 9 Allen, 474- ' Coddington o. Goddard, 16 Gray, 477. 436; 2 Kent's Com. 511. 8 Farwell v. Mather, 10 Allen, 322- ^ 2 Kent's Com. 540 ; Davis v. Eow- 325. ell, 2 Pick. 64 ; Morton v. Dean, 13 Met < Atwood t). Cobb, 16 Pick. 227, 231. 385 ; Bent v. Cobb, 9 Gray, 397. ° 2 Kent's Com. 511; Fenniman v. 328 PLEADING. [CH. xxvn. by the auctioneer immediately on receiving his bid and knocking down the hammer, is a sufficient signing of the contract, within the Statute of Frauds, so as to bind the pur- chaser. Entering the name of the buj'er by the auctioneer in his book is just the same thing as if the buyer had written his own name. The person who bids and announces his bid to the auctioneer gives the auctioneer authority to write down his name, and the authority to the agent need not be in writing." ^ § 27. The signature may be made with a lead pencil accord- ing to the practice in cases of hurried business. The mark of one unable to write, or even a printed name under certain circumstances, is a sufficient signature ; and if the name be inserted in such a manner as to have the effect of authenti- cating the instrument, it is immaterial in what part of it the name be found.^ It is not necessary that the signature should be at the bottom of the memorandum.^ It may be the initials only of a party.* It may be the name of the agent only instead of that of the principal, though no intimation of his agency appears on the memorandum, if his intention was to bind his principal.* § 28. Promise to pay the Debt of Another. — In the case of Nelson v. Boyntpn,^ which was an action to recover on a promise to pay the debt of another, Shaw, C. J., said : " The rule to be derived from the decisions seems to be this, that cases are not to be considered as coming within the statute when the party promising has for his object a benefit which he did not before enjoy, accruing immediately to himself ; but when the object of the promise is to obtain the release of the person or property of a debtor, or other forbearance or benefit to him, it is within the statute." § 29. A contract -ro-ithin the Statute of Frauds is one which neither party can enforce in a court of law.^ It may be 1 2 Kent's Com. 540. 6 Williams v. Bacon, 2 Gray, 387 ; 2 2 Kent's Com. 511. Lerned v. Johns, 9 Allen, 419. 8 Penniman a. Hartshorn, 13 Mass. « 3 jiet. 396, 402. 87. ' Carrington v. Roots, 2 M. & W. * Sanborn v. Flagler, 9 Allen, 474, 248; Eeade v. Lamb, 6 Bxch. 130; 478. Comes u. Lamson, 16 Conn. 24; King V. Welcome, 5 Gray, 41, 43. § 31.] PLEADING. 329 available for some purposes. A parol contract for the sale of land, though not enforceable as a contract, may operate as a license to enter upon the land, and, until revoked, be a good answer to an action of trespass by the owner.^ In an action of contract on a quantum meruit for work and labor done by the plaintiff for the defendant, it is held that an oral agreement of the defendant to work for the plaintiff a year from a day future, not to be performed within one year from the making thereof, is within the Statute of Frauds and cannot be set up in defence of the action.^ Whenever any of the statutes of frauds are relied on by either party to a suit, it must be pleaded specially.^ § ,30. When Part of a Contract is -within the Statute. — If any part of an agreement is valid it will avail pro tanto, though another part of it may be prohibited by statute, provided the statute does not, either expressly or by necessary implication, render the whole void, and provided, furthermore, that the sound part can be separated from the unsound, and be en- forced without injustice to the defendant.* When the contract is severable the plaintiff may recover on that part which is not within the statute ; ^ or if that part of the contract to which the statute applies has been executed, the plaintiff may recover on that part which remains unexe- cuted and not within the statute.^ § 31. Form of Plea or Answer, — An answer or plea of the statute should traverse the declaration substantially in the words of the statute relied on, thus : " that the contract declared on was a special promise to answer for the debt, default, or misdoings of another, and no memorandum or note in writing thereof was signed by the defendant or by any person by him lawfully authorized thereto." The foregoing general rules as to the substance and form of contracts to bring them within the Statute of Frauds are in general applicable to all classes of agreements and promises 1 King V. Welcome, 5 Gray, 41, 44. * Rand v. Mather, 11 Cush. 1, 7. ■i lb. 6 Haynes v. Nice, 100 Mass. 327. » Middlesex Company v. Osgood, 4 « Page v. Monks, 5 Gray, 492. Gray, 447, 448 ; Libby v. Downey, 5 Allen, 299. 330 PLEADING. [CH. XXVII. mentioned in the statute, except those mentioned in the last section of the statute for the sale of certain bonds and stocks.^ There are numerous decisions on the questions arising under the several sections of the statute. It is not, however, with- in the scope of this work to refer to them, except such as tend to show general rules of practice. § 32. Death of Parties in Personal Actions. — In personal actions the cause of which survives, if there is only one plaintiff or defendant, and the sole plaintiff or defendant dies after the commencement of the action and at any time before final judgment, the action may proceed and be prose- cuted by or against the surviving party and the executor or administrator of the deceased party .^ The executor or administrator of the deceased party may appear voluntarily and assume the prosecution or defence of the action. If the executor or administrator does not voluntarily ap- pear, the surviving party may take out a citation from the court or trial justice before whom the case is pending, requir- ing the executor or administrator to appear and take upon himself the prosecution or defence of the action.^ The citation cannot be issued after the expiration of two years from the time such executor or administrator has given bond for the discharge of his trust, if he has given notice of his appointment as required by law.* If the death of the party occur after the commencement of the action and before it is entered in court, the action may be entered and the death of the party suggested on the record ; and his executor or administrator may, at the same term or within such further time as the court shall allow, appear and take upon himself the prosecution or defence of the suit ; and it will be thenceforth conducted in the same manner as if it had been originally commenced by or against the same execu- tor or administrator.® When the death occurs after an appeal, the appeal may be entered and proceeded with in the same manner.® 1 Pub. St. c. 78. § 6. 4 Pub. St. c. 165, § 8. 2 Pub. St. c. 165, § 5. fi Pub. St. c. 165, § 6. 8 Pub. St. c. 165. § 7. « lb. § 34.] PLEADING. 331 § 83. "When there are several plaintiffs or defendants in a personal action the cause of which survives, and any of them die before final judgment, the action may proceed at the suit of the surviving plaintiff, or against the surviving defendant, as the case may be. '• If in such case all the plaintiffs or all the defendants die, the action may be prosecuted or defended by or against the executor or administrator of the last surviving plaintiff or defendant respectively, in like manner as if the survivor had been originally the only plaintiff or defendant." ^ § 34. " If the executor or administrator does not appear on the return of the citation, or v^ithin such further time as the court or justice may allow, he shall be nonsuited or defaulted, and judgment shall be rendered against him in like manner as if the action had been originally commenced by or against him in his said capacity, except as provided in the following section. " When an executor is nonsuited or defaulted without hav- ing takeu upon himself the prosecution or defence of the action, he shall not be personally liable for costs in the ac- tion ; but the estate of the deceased in his hands shall be liable for the costs, as well as for the debt or damages if any are recovered." ^ 1 Pub. St. c. 165, § 12, 13. 2 Pub. St. c. 165, § 10, 11. 332 BOUTINE OF BUSINESS IN COUET. [CH. XXVIU. CHAPTER XXVIII. BOUTINB OF BUSINESS IN COURT. § 1. Entry of Actions. — When an action is commenced, and the writ or process thereof is made returnable at the term of the Supreme Judicial Court or of the Superior Court, it must be entered on the first day of the term to which it is returnable, unless, by consent of the adverse party and by leave of court, or unless the court shall allow the same for sufficient cause, to be entered after that day.^ The same rule applies to the entry of appeals. Upon the entry of every action or appeal, the name of the plaintiff's or appellant's attorney must be entered on the clerk's docket; and in default thereof a nonsuit may be entered.^ No particular mode of entering actions is directed by any rule of those courts. In practice, the attorneys at the time prescribed in the foregoing rule deliver to the clerk a list of those actions which they intend to enter, upon which and on payment of the fees the actions are duly entered by the clerk of the court. § 2. Omission to enter Appeal. — If by mistake or accident a question arising upon an appeal, or upon exceptions in the Superior Court, is not duly entered in the Supreme Judicial Court, or if, for a like reason, a complaint founded on an omission to enter such question has not been entered by the adverse party, the court, upon petition filed within one year after the question or complaint should have been entered, and upon such terms as it deems just and reasonable, may allow the party taking the appeal or exception to enter the ques- 1 Knles of S. J. Court, 1. " Eules of S. J. Court, 2. § 6.] EOUTINE OF BUSINESS IN COURT. 333 tion, or the adverse party to enter his complaint, as the case may be ; and when so entered, the court may proceed therein as if it had been entered at the proper term.' An action returnable to police, municipal, or district courts must be entered on the day on which it is made returnable, and within one hour after the hour when the writ is return- able.^ § 3. Non-entries. — In all actions in which the writs have been returned to the clerk's ofiBce, and which, from having been settled, or for any cause it is not intended to prosecute further, the writs are placed by him upon the file of " non- entries," and nothing further is done with them by either party, unless subsequently taken therefrom, to be entered by leave of court. § 4. Entries in Superior Court. — The rules of the Superior Court require that " a list of all actions intended for entry shall be delivered to the clerk on or before the evening of the first day of each term, and shall be entered by him, and the new docket prepared by noon of the second day of each term in all counties other than Suffolk, and on or before the first Monday of each term in the county of Suffolk ; and no list shall be received by the clerk after the said first day of the term, nor any action be entered after said time, excepting by order of court." ^ § 5. Entry of Appeals. — In case of appeals from the Su- perior Court to the Supreme Judicial Court, and to the Superior Court from an inferior court or trial justice, the appellant in entering his appeal must file in the court ap- pealed to such copies of the previous proceedings or original papers as are required by the statutes.* § 6. Entry at Law Terms. — All questions of law tO be heard by the full bench of the Supreme Judicial Court should be entered on a separate docket, kept for the purpose by the clerk, and copies of all the papers in each case be delivered to each of the judges. Such copies should be previously pre- 1 Pub. St. c. 150, § 17. - Rule 1. See Rules, 104 Mass. ' Blanchard v. Walker, 4 Cash. 455. 556. * See post, chapter on Appeals. 334 EOUTINE OF BUSINESS IN COURT. [CH. XXVm. pared and certified by;the clerk, at the expense- of the party whose duty it is to enter the case.^ No agreement of counsel can dispense with the transmis- sion of such copies.* § 7. "Writ or Copies must be Filed. — The rules of the Su- perior Court provide that " the clerk, of, the €ourt shall not enter any action upon the docket before the writ is returned and placed on file, except in cases in which the court may otherwise order. No appeal to this; court shall be entered upon the docket, unless the copies are produced and filed at the time of entry, except for cause shown to the court." ^ § 8. By whom Entries are made. — Of course in all original actions the entry is made by the plaintiff or party by whom the suit is commenced, whatever the form of the action may be. In all cases of exceptions or appeal, the party taking the exceptions or appeal should make the entry. In cases re- ported or reserved by the court, the entry should be made by the plaintiff, If the party whose duty it. is to make the entry neglect to do so, the adverse party may enter a complaint, and have the judgment, ruling, or order affirmed.* § 9. Effect of an Entry of an Action. — iWhen an action is entered, the writ is placed on the files of the clerk ; and it is thereby put into the custody of the law, so that neither party has any control over it.^ § 10. 'When a Plaintiff Pails to Enter. -r- When a Suit has been commenced, and the writ served, if the plaintiff fails to enter his action, the defendant may appear, and upon com- plaint, made in writing to the court, shall; recover costs ; but the complaint must be entered at the return term.® § 11. The appearance of the plaintiff is made by the entry of his action, that of the defendant must be made within ten days from the return> day of the writ, if the action be in, the 1 Put. St. 0. 152, § 15. * Pnb. St. c. 152, § 16, 17. " Williams v. Kenney, 98 Mass. 142, ^ Brigham v. Este, 2 Pick. 424. 143. ' Lombard v. Oliver, 5 Gray, 8. 8 Rule 4. See Entry of Appeals, post; 104 Mass. '556; § 13.] EOUTINE OF BUSINESS IN COURT. 335 Superior or Supreme Judicial Court, or he will be liable to be defaulted. If, however, after such default at the first term the defend- ant appears before the jury is dismissed, the court may take off the default, and allow the appearance to be entered upon the defendant's paying the plaintiff's costs up to that time, or such part thereof as the court thinks reasonable.^ § 12. The appearance of the defendant must be made in writing, delivered to the clerk or his assistant, and will be enteried on the docket by the clerk or his assistant. It may be made by the defendant personally or by his attorney. It is usually done by the attorney. Upon good cause shown, the time of entering an appear- ance may be extended. • If a defendant^ being duly served with process, fails to ap- pear, his default will be recorded, the charge in the declara- tion will be taken to be true, and judgment rendered accord- ingly.2 § 13. The effect of a general appearance by a defendant is to cure all irregularities in process or proceedings.^ After a general appearance by an attorney for both defend- ants, they being partners, and pleadings entered by him in the name of both, one defendant cannot plead that he was not served with process, and has not appeared.* Where a plea is filed in the name of all the defendants, it will be an appearance by all, whether the writ was served on all or not." An appearance by the defendant merely for the purpose of moving to set aside the service of the writ is not a waiver of any defect or irregularity in the service ; but if, after such an appearance, he takes any action in relation to the case which recognizes it as in court, disconnected from the motion, whether the motion is then pending or not, this is a waiver of the defect or irregularity.*^ 1 Pub. St. c. 167, § 45^7. 8 Gray, 557 ; Lawrence v. Bassett, 5 2 lb. Allen, 140. » Greenwood v. Lake Shore R. R. < Field :;. Gibbs, Pet. C. C. 155. Co., 10 Gray, 373 ; Loomis v. 'Wadhams, ^ Henderson v. Reamer, 6 Miss. 525. ' Lampley v. Beavers, 25 Ala. 534. 336 ROUTINE OF BUSINESS IN OOUET, [CH. XXVIII. § 14. As to the filing of answers and pleas, see ante, chapter on Pleading, p. 262. § 15. A docket is kept by every court in which all actions brought before it are entered and all proceedings in each case briefly minuted. The docket of a court having a clerk is kept by the clerk ; that of a court having no clerk is kept by the judge of the court ; that of a trial justice is kept by the justice. The docket of the Probate Court is kept by the registrar, who also keeps the docket of the Court of Insolvency. The brief entries on the docket in each case should give a history of all the proceedings in it. In police, municipal, and district courts, and before trial justices, the docket is the only record of their doings. The clerks of the Superior and Su- preme Judicial Courts are required to make an extended record of the proceedings in each case in which a judgment is rendered. § 17. The docket is the record until the record is fully ex- tended and the same rules of presumed verity apply to it as to the record. Every entry on the docket is a statement of the act of the court, and must be presumed to be made by its direction either by a particular order for that entry, or by a general order, or by a general and recognized usage and prac- tice which presupposes an order.^ § 17. Dockets may be amended. — The docket of the clerk of a court, being the record of the court, may be amended by the court, at any time, as well after as during the term at which an entry is made, at its own motion, or on the sugges- tion of any party interested and without notice to any one, to correct the mistakes and supply the omissions of its clerk or recording officer, so as to make the docket record conform to the truth of the case.^ The original entries by a trial justice on his docket, contain- ing all the material facts which a more extended record 1 Bead v. Sutton, 2 Cush. 123 ; Tracy 2 Balch v. Shaw, 7 Cash. 282 ; Fay V. Maloney, 105 Mass. 90, 92. v. Wenzell, 8 Cush. 315. § 18.] EO0TINE OF BUSINESS IN COURT. 337, would have comprised, is substantially a record, if no other has been made,^ and may therefore be amended. An attorney having directed the clerk to enter his appear- ance for one only of three defendants, the two others being out of the Commonwealth, and the clerk, by mistake, having entered it generally for the three, a judgment was subse- quently rendered by default against the two, — held, that the court, on petition, at a succeeding term, might authorize the clerk's docket to be amended, by restricting the entry thereon of the appearance of the attorney to the party for whom he in fact appeared.^ § 18. Calling the Docket. — At each term of the courts some day is assigned by custom, or by general or special order, for calling the docket. The practice as to calling the dockets is not at all uniform. The arrangements in different courts and localities are made to suit the convenience of the court and bar, and facilitate the business of the court. It is always called at the commencement of the term, so far as to ascertain what cases are for trial ; and at some terms and in some places the whole of the docket of continued actions is called at the commencement of the term. Every practitioner is familiar with the practice in this respect in the county or district where he resides. It is not important to state it more fully here. At the calling of the dockets the attorneys on both sides of all the actions should be present, to answer to the actions as they are called. Cases to be heard by court should be set down for " hearing," cases for a jury should be set down for " trial," and cases for trial by the court without a jury should be set down for " trial by the court." At the time of calling the docket, it is usual to make mo- tions which require no discussion, but merely a formal order or leave of the court. On motions which will be opposed, and thus occupy the time of the court, the hearing will usually be postponed until the calling of the docket is completed. Notice of the motion may be given to the opposing party at the time of calling the docket. ' Davidson v. Slocomb, 18 Pick. 464 ; *" Tilden v. Johnson, 6 Cash. 354. Townsend ;;. Way, 5 Allen, 426. 22 338 EOUTINE OF BUSINESS IN COUET. [CH. XXVUI. It is not necessary that motions should be made or notice of them given at the calling of the docket. To do it then is a matter of convenience. In all of the courts, certain days or parts of days are allowed at each term for hearing motions. As each action is called if not set down for hearing or trial as before stated, it should be in some way disposed of, either by default, where the defendant fails to appear, or in such manner as the counsel signify to the court, as by nonsuit ; or by entering " neither party ; " or by continuance, either gen- eral or special, or on some condition, as that the defendant shall be defaulted at the next term, or that the judgment in the court below shall be final ; or by continuance under the statute, because the defendant is out of the State, which fact should be suggested by the plaintiff's attorney. It is provided by a rule of the Superior Court that " the civil docket, or such part thereof as the presiding judge shall direct, shall be called at the commencement of the last term of the court for civil business held for the year in each county ; and all suits which have remained without any ac- tion therein during the year may be dismissed, unless cause is shown to the contrary." ^ § 19. Entry of Neither Party. — If the parties settle a case without a judgment, the case is usually disposed of by the entry of " neither party " (N. P.), which signifies that both parties depart out of court, or that " neither party " appears. It may be made in all cases by agreement of all parties. It is equivalent to a nonsuit and default. It ends the case without a judgment, and leaves the parties in the same condition as if the suit had never been brought, and no record of it is re- quired except the names of the parties. It has sometimes been questioned whether this was a proper entry in a suit in equity. There seems, however, to be no reason for such a dis- tinction between suits at law and suits in equity. It is as appropriate to the latter as to the former. It has been allowed in Massachusetts in suits in equity, after consideration by Chief Justices Shaw, Bigelow, and Gray. It is a disposition of a case always to be favored, and is appropriate in all cases 1 Kule 54. § 22.] ROUTINE OF BUSINESS IN COURT. 339 where the I'ights or interest of a party do not require a decree or judgment. § 20. A continuance of an action in a court having regular fixed terms for business is a continuance from one terra to another. In the Superior Court it is the usual practice in some, if not all of the counties, when the defendant enters au appearance in an action, to continue it to the next term. Such a continuance is generally necessary to enable the parties to file their pleas and prepare for trial. A case is often continued from term to term for several terms, because it is not reached on the docket of actions for trial. A contin- uance also is often had for other special causes, such as sick- ness of a party, or a material witness, or the necessary absence of either. It is always within the discretion of the court to grant a continuance for cause, on motion of either party. It is, how- ever, provided by statute that " if the parties agree to con- tinue 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 the docket in which the case shall stand at the next term." ^ § 21. Continuances upon terms agreed upon by the parties are granted, as that the defendant shall recover no costs of that term, if he prevail ; or that the judgment of the court shall be final, at the term to which it is continued ; or that the defendant shall be defaulted at the next term. § 22. Causes for Continuance. — Where the same property has been attached, at the suit of several creditors, the subse- quent attaching creditors may continue their actions, until the termination of that on which the attachment was first made.^ And after an action has been defaulted, it is usual to allow the plaintiff to continue the action for judgment as long as he thinks fit, at his own cost. But if objection be made by the defendant, or by any one interested, judgment must be ren- dered upon the default, unless good cause can be shown.^ 1 Pub. St. c. 167, § 64. Coolidge v. Gary, 14 Mass. 11.0. * Barnard v. Fisher, 7 Mass. 71. 340 KODTINE OF BUSINESS IN COURT. [OH. XXVIII. The court will order a continuance for judgment, where a cross-action is pending or is about to be commenced, so that there may be a set-off of the judgments, if due diligence have been used by the party making the application.^ A continuance will be granted to enable a party to plead specially, where the nature of the case requires it ; but it will not be done as a matter of course.^ If a defendant have been previously cited as trustee of the plaintiff, the action against him will be continued until the termination of the trustee process.^ On the trial of a cause, the decision of the presiding judge to grant or refuse a motion for a continuance or postpone- ment, on account of the absence of a witness, is not a subject of exception.* § 23. Continuance nisi. — This is done where a case has been heard and the court is not prepared to give a decision at the end of the term, but intends to give a decision before the next succeeding term. The case is then continued nisi; that is, it is continued to the next term, unless before (nisi prius') that time the court shall decide the case and order judgment to be entered as of the last term. § 24. The object of a continuance nisi is to enable a party to have judgment as of the term where such an entry is made, provided the court shall decide the case in vacation. The continuance nisi is therefore appropriate only in a court hav- ing regular terms, with considerable intervals of time be- tween. It is not appropriate to a court that sits daily, because in such a court a judgment may be entered any day. Where an action is continued nisi by order of court, for advisement, care will be taken that neither party suffer by the delay ; and if a party die during such continuance, judgment will be entered as of the preceding term, nunc pro tunc} So, if a trustee die, in such case, he may be charged, and ^ Winthrop v. Carlton, 8 Mass. 456. * Commonwealth v. Donovan, 99 2 Craige v. Mellen, 4 Mass. 587. Mass. 425. 8 Winthrop v. Carlton, 8 Mass. 456 ; 6 Perry v. Wilson, 7 Mass. 393, 395. Foster v. Jones, 15 Mass. 185. § 25.] KOUTINE OF BUSINESS IN COURT. 341 judgment entered against him, as of a preceding term, where the cause was continued for advisement, or the trustee had refused further to disclose.^ The power of the courts to enter judgment as of any day of a former term is given by statute,^ but this power cannot be exercised in vacation except in cases which have been continued nisi.^ In Greenwood v. Bradford,* Gray, C. J., says : " The full bench of this court has never assumed to exercise the power of ordinary final judgments in vacation without a continuance nisi in actions at law. The law term for the Commonwealth held at Boston on the first Wednesday of January in each year is uniformly adjourned from time to time until the Tues- day before the first Wednesday of January in the following year ; and in the law terms held in other counties all matters pending before the full court are always continued nisi by a general order at the end of the term. If an order made at any term of either court, to continue a case nisi, should by mistake not be recorded, it would of course be within the power of the court at a subsequent term to order the record to be amended so as to conform to the truth." § 25. A motion for continuance should be made to the court, and may be heard by a judge in open court or at chambers, as he may appoint. If the adverse party is not present per- sonally or by attorney, notice of the motion should be given to such party or his attorney. Such motion should be in writing. In some cases they are required to be in writing by the rules of court. A motion for a continuance for cause should be made as soon as possible after the cause is known to the party mak- ing it. The general rules of the courts contain the regulations as to continuances in certain cases, and define the terms on which they are to be granted. These rules do not, however, prevent the court from imposing other and additional terms on the 1 Patterson w. Buckminster & Tr., 14 ' Greenwood v. Bradford, 128 Mass. Mass. 144. 296. 2 Pub. St. c. 153, § 20. * 128 Mass. 297. 342 EOUTINE OF BUSINESS IN COURT. [CH. XXVIH. party moving for a continuance, 'when the justice of the case requires it. Where the defendant is out of the State, at the time of the service of the writ, the continuance, upon the suggestion of that fact, is by order of law, and is a special one. A motion for a continuance grounded on the want of ma- terial testimony must be in writing, stating fully the particu- lar grounds of the motion, and what the witness would testify if present.^ At the close of each term, all actions on the dockets not disposed of are continued by the general order of the court. § 26. Motion for a New Trial. — No motion will be sustained for a new trial in any civil action after verdict of the jury, either on account of any. opinions or decisions of the judge given in the course of the trial, or because the verdict is alleged to be against evidence, or the weight of evidence, un- less, at the same term and within four days after the verdict is returned, the counsel of the party complaining of the pro- ceedings, or of the verdict, shall file a motion for a new trial, specifying the grounds of his complaint, and causing a copy of the said motion to be delivered to the adverse counsel on the day the same shall be filed. But upon special motion, and for good cause shown, the time for filing such motion may be extended by the court.^ § 27. A Motion to dismiss an action must be filed. within the time required for entering appearances, unless further time is allowed by the court.'' § 28. Motions of Various Kinds. — A great variety of mat- ters may be brought to the attention of the court by motions. These may be oral or in writing. A motion for a default or for a special judgment after default or after verdict, and for other matters when the grounds of the motions are apparent on the record, are usually made orally. But in all cases when the grounds of the motion are not apparent on the record the motion should be in writing, stating the facts on 1 Eules of S. J. Court, 9-13 ; 104 2 Rules of Superior Court, 35. Mass. 556 ; Eules of Superior Court, » Rules of Superior Court, 14. 26-29. § 30.] KOUTINE OF BUSINESS IN COUET. 343 which the party making it relies in its support, and the motion so made should be filed, and generally should be veri- fied by affidavit. The tenth rule of the Supreme Judicial Court of Massa- chusetts provides that " the court will not hear any motion grounded on facts, unless the facts are verified by oath or affirmation, or are apparent upon the record and the papers on file in the case, or are agreed and stated in writing, signed by the parties or their attorneys. And the same rule will be applied to all facts relied on in opposing any motion." ^ If there be any defect in the plaintiff's writ, or in any of his proceedings, which constitutes a good ground for dismiss- ing the action on motion, and the defendant intend so to avail himself of it, the motion must be made in writing, and notice thereof given to the plaintiff or his attorney. § 29. Proceedings on Motions. — The court usually appoint some time or times for hearing motions. Attorneys having motions to present or oppose, appear in court at the time designated, often without other notice, and sometimes upon informal notice by the adverse party. There are, however, motions of such a character as to require the immediate action of the court. Such motions may properly be presented and heard at any time during the term by giving notice to the adverse party and with the consent of the court. § 30. Default. — If a defendant fail to appear he is said to be in default, and judgment may be entered against him on his default. A common mode of defaulting is simply by causing the crier of the court to call upon the defendant, in open court, to come in and answer to the plaintiff. If he do not appear or answer, the clerk minutes the default on the docket. This mode is not, however, pursued in all cases. Under recent statutes it has become the practice, in Massa- chusetts, for the court to enter a default against a defendant on whom legal service has been made, and who does not ap- pear at the first term of the court, as required by the statutes, 1 See also Eule 21, of Rules of Superior Court. 344 KOUTINE OF BUSINESS IN COURT. [CH. XXVIII. without calling him in open court. If the defendant appears, but fails to file an answer, as required either by a general or special order or rule of the court, the plaintiff is entitled to have a default entered, but this is done only by leave of court, and the defendant is called before his default is en- tered. This is the practice in some, if not all, of the counties in the Supreme and Superior Courts. In the police, munici- pal, and district courts, defaults are generally entered without calling. 1 In Willey v. Durgin,^ Chief Justice Gray said : " It is with- in the discretion of every court, as incident to the arrange- ment and regulation of its business, at such times as it may appoint, to call the docket of all actions which have been entered and have not reached final judgment, and to default any party who fails to appear when called, even if an appear- ance has been entered in his behalf. When the action is not on the trial list, it is not usual or just to do this without rea- sonable notice of the time when the docket is to be called." A default may be entered against a defendant for his ne- glect or refusal to answer interrogatories propounded to him as provided by the Public Statutes, c. 167, or for refusal to expunge or amend irrelevant matter contained therein.^ § 31. A nonsuit is an abandonment of a suit by a plaintiff or a failure to prosecute it successfully. If a plaintiff, having entered his action, fail to prosecute it in any way, the defend- ant may procure a nonsuit on motion and will generally be entitled to costs.* The plaintiff may also become nonsuit voluntarily at any time before verdict, unless by so doing injustice be done to the defendant.^ When the nonsuit is not voluntary the plaintiff is called into court to prosecute his suit before a nonsuit is entered on the docket. After a judgment against a plaintiff for costs upon a non- suit, he cannot recover judgment against the defendant on a second suit for the same cause of action until he has paid the 1 Pnb. St c. 167, § 45, 46. « 3 Bl. Com. 296. 2 118 Mass. 69. 6 HaskeU «. Whitney, 12 Mass. 47. " Pub. St. c. 167, § 59. § 32.] ROUTINE OF BUSINESS IN COUET, 345 costs of the previous suit.^ If in such case the plaintiff com- mence a second suit before paying the costs of the previous suit, the action may be stayed until the costs are paid, and the court may order that the action be dismissed unless the costs are paid within the time expressed in the order.^ § 82. Trial Lists. — The statutes provide that " 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 sliall 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 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 determined by the court, and judgment entered as in case of verdict by a jury," ^ The rules of the Superior Court provide that lists of actions in Suffolk, Essex, Middlesex, and "Worcester Counties, in- tended to be put upon the trial list, shall be handed to the clerk at least ten days before, and in the other counties seven days before, the first day of the term ; and the trial list shall be made up therefrom, and be ready for the examination of the bar by the following Saturday, in the counties above named, and five days at least before the first day of the term in all other counties. The first ten cases thereon for a trial by jury shall be in order for trial on the first day of the term. " Actions may afterwards be put upon the trial list, for cause shown, on notice and motion, and shall be placed at the end thereof, in the order of the motions therefor. "All cases on the trial list postponed by agreement of the parties shall be placed at the end of the trial list. " No case in which the pleadings are not completed, so as to show an issue of fact to be tried, and no case referred to an auditor before the report is filed, shall be put on the trial list by the clerk.'' * Pursuant to the provisions of the statute and rules of the Superior Court here quoted, each member of the bar having 1 Pub. St. c. 198, § 13. ' Pub. St. c. 167, § 69. 2 lb. * Rules 17, 18. 346 EOUTINE OF BUSINESS IN COURT. [CH. XXTIIE an action for trial at a term of that court must hand to the clerk a list of his cases which he desires to have placed on the trial list. This list must be handed to the clerk within the time specified in the rule. Two trial lists are then prepared by the clerk, including the several lists handed in by the attorneys — namely, a list of trials by jury, and a list of trials by the court. § 33. Trial Lists in Supreme Judicial Court. — The rules of this court provide that " at each term of the court for the trial of cases by the jury, a trial list shall be prepared on the first day of the sitting of the court; and no case shall be placed thereon afterwards, except by order of the court. " No action shall be postponed by consent, except by way of substitution ; and no action shall . be postponed or con- tinued to await the return of a commission, if it shall appear that there has been any negligence to apply for and transmit the same, whether such negligence happen in term time or in vacation." ^ § 34. Advancing Cases for Speedy Trial. — The statutes pro- vide that " in any action where the plaintiff seeks merely to re- cover a debt or a liquidated demand, with or without interest, if the defendant 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 1 Bales 22, 23. § 36.] KOUTINE OF BUSINESS IN COTJET. 347 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 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." ^ An aifidavit by one of several plaintiffs is sufficient. The notice required by this statute to be given to the defendant may be given to his attorney of record.^ § 35. Order of Trials. — The docket having been called in whole or in part, the trial list made up, the jurors impanelled, and motions in order disposed of, the court is ready to pro- ceed with the jury trials. The cases on the trial list will be tried in the order in ■which they stand upon the docket, unless for satisfactory reasons the court permit that order to be changed. Both parties will be held to be in readiness for a trial when the case is reached in its order, unless good reason to the con- trary be shown. If the plaintiff is not ready, the defendant is entitled to a nonsuit. If the defendant is not ready, the plaintiff is enti- tled to a default, unless in either case, some sufficient reason is shown for not being ready. § 36. The Trial. — A case being ready for trial, each party, before proceeding to trial, has a right to challenge any of the jurors for cause, and, in addition, has the right to challenge two jurors peremptorily. The vacancies in the jury thus caused will be filled by the clerk, by calling other jurors who are in attendance as super- numeraries ; and if the number of these is not sufficient, tales- men will be selected by the sheriff from persons in or about the court-house, sufficient to fill the jury. By agreement of parties and consent of the court, a civil action may be tried by a jury of less than twelve persons. In the trial, the plaintiff, as a general rule, has a right to the opening and close of the case. I Pub. St. c. 167, § 48. « Rogers v. Ladd, 117 Mass. 334, 337. 348 EOUTINE OF BUSINESS IN COUKT. [CH. XXVIII. As to impanelling the juries, and trial and verdict, see next chapter, and as to evidence see post, chapter 39. § 37. stenographers. — It is provided by statute that the Su- perior Court maj' appoint stenographers for that court in the county of Suffolk, and that when in an action in that court both parties agree in writing that a stenographic report of the evi- dence, or of the charge of the presiding judge, or of any part of the proceedings, shall be taken, or when, upon the applica- tion of either party to an action, the presiding judge deems it advisable that a stenographic report of any part of the pro- ceedings shall be taken, a stenographer may be appointed for that purpose. The duties of a stenographer are defined in the statute and also by the court in the case of Churchill v. Palmer.^ The presiding judge may order the expenses thereof to be paid equally by the parties to the action, at the same rate, and may enforce payment thereof, and the amount so paid may be allowed to the prevailing party in the ac- tion.^ § 38. Contempt of Court. — The Supreme Judicial Court and Superior Court have power at common law to punish contempts of court.^ Similar authority is also given by statute to trial justices and to police, municipal, and district courts,* probate courts,^ courts of insolvency,^ and county commissioners.^ The failure of a person to attend as a witness before a court, justice of the peace, master in chancery, or the county commissioners, or before an auditor appointed by the Su- preme Judicial Court or Superior Court, is a contempt of the court, and may be punished by fine not exceeding twenty dollars.^ Other penalties are also provided by statute for non-attend- ance by witnesses who have been duly summoned and paid their fees. 1 Pub. St. c. 1!>9, § 72, 73 ; 115 Mass. * Pub. St, c. 155, § 68 ; c. 154, § 11. 310. 6 Pnb. St. c. 156, §45. 2 Pub. St. c. 159, § 73. 6 Pub. St. c. 157, § 5. ' Heard «. Puree, 8 Cush. 338 ; Piper ' Pub. St. c. 22, § 19. w. Pearson, 2 Gray, 120, 123. « Pub. St. c. 169, § 5. § 40.] EOUTINE OF BUSINESS IN COURT. 349 § 39. What is a Contempt of Court. — As the process for contempt is a summary one, and the occasion for its imme- diate use may arise when delay in the proceedings may be at least inconvenient, it seems proper to state briefly the general rules applicable to the exercise of the power of courts to pun- ish for contempt. In the case of Heard v. Pierce,^ Fletcher, J., says : " The general rule is well established that, when a general power is given or duty enjoined, every particular pow- er necessary for the exercise of the one or the performance of the other is given by implication." In Piper v. Pearson,^ Bigelow, C. J., says : " The power to punish for contempt is only incidental to the more general and comprehensive au- thority conferred on a magistrate, by which he is empowered to exercise important judicial functions. It is to enable him to try and determine causes without molestation and protect himself from indignity and insult that the law gives him authority to punish such disorderly conduct as may interrupt judicial proceedings before him or be a contempt of his au- thority or person. But it is only when he is in the exercise of his judicial functions that his power can be exercised." ^ A justice of the peace who, after finally disposing of a cause tried before him, commits a witness to prison for contempt at the trial, is held guilty of an excess of jurisdiction which renders him liable as a trespasser to the party injured.* So also where the justice of the peace had no jurisdiction of the case on trial, and during the trial commits a witness to prison for contempt, he is liable to an action by the witness.^ § 40. Exceptions. — A party aggrieved by an opinion, ruling, direction, or judgment of the court in matters of law, may allege exceptions, and is not required to allege the same in writing before the jury retires to consider the cause. ^ Either party may file exceptions to the decisions and rul- ings of the court upon matters of law arising upon a trial by 1 8 Cush. 338, 345, and cases there ' Clarke v. May, 2 Gray, 410. cited. ' Piper v. Pearson, 2 Gray, 120. 2 2 Gray, 123. « Pub. St. c. 153, § 8. 2 Piper V. Pearson, 2 Gray, 123. 350 EOUTINE OF BUSINESS IN COURT. [CH. XXVUI. the court without a jury, may move for a new trial for mis- take of law or for newly discovered evidence, and may be entitled to review, in the same manner and with the same effect as upon trial by jury.^ See post, chapter on Questions of Law, and chapter on Trial and Verdict. . When exceptions are allowed in any case, it will stand continued on the docket of the court in which it is tried until the questions of law raised by the exceptions have been determined hy the Supreme Judicial Court. If the exceptions are sustained, the case will stand for a new trial, unless otherwise disposed of; if the excep- tions are overruled, judgment usually will be entered on the verdict. As to frivolous or immaterial exceptions, see chapter on Exceptions. , See also Public Statutes, c. 150, § 14, 15. § 41. In Police, Municipal and District Courts. — The routine of business in these courts and in municipal courts corre- sponds to that of the Superior Court, except in those particu- lars in which it is varied by the jurisdiction of the courts and their organization and purposes. § 42. Before trial justices the business is conducted much as it was formerly done before justices of the peace. In the police, district, and municipal courts, more form and ceremony is generally observed, and in these respects a differ- ence exists in these courts arising from the amount of busi- ness transacted in them, and from other causes. § 43. No uniform body of rules have been adopted by these courts, but many of them have severally adopted rules regulating the practice in them. § 44. The times of holding terms of police and municipal courts may be established by special law or fixed by the justice of the court by general rule.^ In some of these courts — ^ perhaps in all by a general rule — the terms of the court commence on Saturday of every week at nine o'clock in the forenoon. § 45. Continuances in such Courts. — Actions entered , at 1 Pub. St. c. 167, § 70. a Fab. St. c. 154, § 23. § 45.] EOUTINE ^OF BUSINESS IN., COUET. S51 any of these courts, in which the defendant appears and de- sires it, are usually continued to the next or second term from the return term of the writ or process. The general rules heretofore stated as to continuances of actions in the Superior and Supreme Judicial Courts are applicable to cases in police, district, and municipal courts. 352 THE JUET, TEIAL, AND VEBDIOT. [OH. XXIX. CHAPTER XXIX. THE JTJEY, TKIAL, AND VBEDICT. § 1. The Jury. — Before commencing a jury trial each party to the cause to be tried should, personally or by his attorney, ascertain whether the jury to try the case is legally consti- tuted and impartial. If either party objects to the jury or to any members of it, he should resort to his right to challenge any of them before the commencement of the trial. § 2. Qualifications of Jurors. — All persons who are quali- fied to vote in the choice of representatives in the General Court are liable to be drawn and to serve as jurors, except such as are specially exempted by statute.^ § 3. Persons exempted not Incapable. — In Munroe V. Brig- ham,^ Shaw, Ch. J., said, " on the whole, the court are of the opinion that the statute does not declare all persons exempted, incapable or disabled absolutely to serve as jurors, so that a verdict rendered by a jury in which a person exempted shall sit, without exception, shall be void ; but only that all such persons shall be exempted from serving at their own election, and shall be liable to be excepted to by either party, if the exception be taken at the impanelling of the jury." One who has served as a juror in the courts, of the United States within three years is not liable to be returned as a juror in the courts of the state.^ Attorneys at law, though retired from practice, are ex- empted from serving as jurors.* 1 Pub. St. u. 170, § 1-5 « Case of William Swan, 16 Mass. 2 19 Pick. 368, 369. - 220. « * Case of Samuel Sweet, 20 Pick. 1. § 7.] THE JURY, TRIAL, AND YEEDICT. 353 § 4. The attendance of jurors is procured by venires issued by the clerk of the court as provided by statute.^ The mode of impanelling the jurors at a term of the court for civil business is also prescribed by statute.^ Talesmen may be returned from the bystanders, when occa- sion for them exists, as provided by statute.^ It is irregular for a talesman to act in any cause except the one for which he is returned, but the objection must be made before verdict.* The objection to a talesman should be made before he is placed on the panel.^ § 5. Challenges at common law are of two kinds ; namely, challenges to the array and challenges to the polls. A challenge to the array being an exception to the whole panel, not for any defect in the jurors, but on account of some partiality or default in the sheriff or other officer who ar- rayed the panel,® cannot be made in our practice, as the manner of drawing and impanelling juries with us is entirely different from that at common law, and is altogether independent of any influence from the sheriff. Challenges to the polls are exceptions to one or more of the jurors, individually, and are divided into two kinds ; namely, principal challenges and challenges to the favor.'^ All principal challenges to the polls are tried by the court, without the intervention of triors. § 6. All challenges to the polls for favor are tried by triors, under oath. These triors, if the first juryman called be chal- lenged, are two indifferent persons, appointed by the court. If they find that the person challenged stands indifferent, he and the two triors try the next ; and when another is found indifferent and sworn, the triors are superseded, and the two first sworn on the jury try the rest.^ § 7. Peremptory challenge. — The statutes of Massachusetts provide that, " in all cases civil or criminal, either party shall, before the trial commences, be entitled to challenge peremp- 1 Pub. St. c. 170, § 10-15. 6 Commonwealth v. Gee, 6 Cush. 174. 2 Pub. St. c. 170, § 26-28, 31, 32. » 3 Bl. Com. 359. 8 Pub. St. c. 170, § 33, 34. ' Howe's Pr. 244. * Amherst v. Hadley, 1 Pick. 38 ; 8 Howe's Pr. 247. Howland v. Gifford, 1 Pick. 43. 23 354 THE JURY, TRIAL, AND VERDICT. [CH. XXIX. torily two of the jurors from the panel called to try the cause ; but this section shall not be so construed as to affect the num- ber of challenges permitted on the trial of an indictment, when the offence charged is a capital offence or may be punished by imprisonment for life.^ Nor does it limit the right of either party to challenge any other jurors for cause. Such challenges are usually made by giving notice to the clerk of the court privately, so that it is not known to the jurors by which party in any case they are challenged. A peremptory challenge is often made without any assign- able cause. § 8. Examination of a Juror. — The statutes provide that " the court shall, on motion of either party in a suit, examine on oath any person who is called as a juror therein, to know whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion, or is sensi- ble of any bias or prejudice therein ; and the party objecting to the juror may introduce any other competent evidence in support of the objection. If it appears to the court that the juror does not stand indifferent in the cause, another shall be called and placed in his stead for the trial of that cause." ^ A party who has not challenged a juror or claimed the right to have him examined under the statute is not, as a matter of law, entitled to a new trial, because of a juror's rela- tionship to the counsel of the other party, although, without fault, he was ignorant of the fact till after verdict ; and no exception lies to the refusal of the presiding judge to grant a motion to set aside the verdict on that ground.^ An ob- jection to the competency of a juror is waived if .not taken at the time of the trial.* § 9. The causes of principail challenges to the polls are such matters as carry with them, prima facie, evident marks of suspicion, either of malice or favor. They are, — First. Objections to the qualifications and capacity of the 1 Pub. St. c. 170, § 36. 4 Fowler ». County Comm'rs, 6 Al- * Pub. St. c. 170, § 35. len, 92. ' Smith V. Earl, 118 Mass. 531 j ■Woodward v. Dean, 113 Mass. 297. § 10.] THE JUEY, TKIAL, AND VEEDICT. 355 juror, as that he is an alien, or an infant, or a person non compos, or that he has not the requisite understanding, char- acter, or property, or that he has not been properly drawn or summoned. Second. Objections on account of some bias, actual or presumed, as that the juror is of kin to either party within the ninth degree ; ^ or that there is an aiEnity or relationship by marriage between the juror and one of the parties, if it be a subsisting affinity at the time of the challenge, or there be issue of the marriage alive, otherwise it is only a challenge to the favor ; or that the juror has been chosen by one of the parties, as an arbitrator in the same cause, and acted as such ; ^ or that he has formerly served as a juror in the same cause ; or that he has declared his opinion on the question in contro- versy,^ provided such opinion were not merely hypothetical ; * or that there is an action implying malice, depending between the juror and either party ; or that the juror is interested in the cause, or that he is the master, servant, tenant, or attor- ney of either party, or is a member of the same society or cor- poration ; or that he has by money, entertainment, or in any way been bribed by either party .^ The smallest pecuniary interest in the result of a case dis- qualifies a juror.® § 10. Challenges, when. made. — It is a general rule that aU challenges to the polls should be made before or at the trial, and that, if then omitted, the objections will be considered as waived. But if the cause of challenge were not then known, or if the party, after making the requisite examination, had failed to discover the objection, or if it appear that fraud has been practised or injustice done, the court, upon application after verdict, would grant a new trial. Though a challenge or exception to a juror, if not taken at the time of impanelling, cannot be made afterwards, yet if 1 Finch, L. 401. 6 Co. Litt 157 ; Gilb. C. P. 95 ; 3 Bl. 2 Co. Litt. 157 6; 3 Bl. Com. 363; Com. 363; Boote's Suit at Law, 158. Cain V. Ingham, 7 Cow. 479. See 3 Salk. 81 ; Howe's Pr. 244, 245. * Pringle v. Huse, 1 Cow. 432, and ^ Page v. Contoocool^ Valley E. E., note 1. 21 N. H. 438. * Durell V. Mosher, 8 Johns. 347. 356 THE 'JURY, TEIAL, AND VERDICT. [CH. XXIX. the judge improperly overrule a challenge, the party challeng- ing is not concluded, by proceeding in the trial, from avail- ing himself of the objection, to set aside the verdict.^ Challenges to the favor are where the party has no princi- pal challenge, but objects only some probable circumstances of suspicion, as intimacy, acquaintance, and the like. They are of the same nature with principal challenges for bias, interest, &c., but of an inferior degree. The general rule of law being "that the juror must stand indifferent, as he stands unsworn ; " any objection which, though probable, is not sufBciently prima facie, to amount to matter for a prin- cipal challenge, may be the ground of a challenge to the favor. The causes, therefore, of challenges to the favor are infinite.^ It is provided by statute that, "if a party knows of any objection to a juror in season to propose it before the trial, and omits to do so, he shall not afterwards be allowed to make the same objection, unless by leave of the court." ^ Interest of a juror, if known to counsel before the trial, although not known to his client until after verdict, is no ground for granting the client a new trial.* An objection to the competency of a juror will not avail after verdict, without proof that the objection was unknown to the party making it and to his attorney till after the juror was sworn.^ If a juror be objected to at the time of the trial, and the fact objected to be inquired into, by examining the juror upon oath, according to the statute, and he be adjudged to stand indifferent, the same objection cannot be made a ground for granting a new trial, though evidence to support it be after- wards discovered.^ Where a person not summoned was sworn, and sat upon the jury in the name of a person who was summoned, and the irregularity was noticed before verdict, a new trial was 1 Howe's Pr. 246, 247; Amherst v. « Russell v. Quinn, 114 Mass. 103. Hadley, 1 Pick. 38, and note 1. ^ Howe's Pr. 248; Borden a. Borden, 2 lb. ; 3 Bl. Com. 363. 5 Mass. 67, 80 ; JeSries v. Randall, 14 8 Pub. St. c. 170, § 39. Mass. 205. * Kentw. Charlestown, 2 Gray, 281. § 13.] THE JURY, TRIAL, AND VERDICT. 357 granted.^ But it is not imperative on the party in such cases to proceed in the trial ; and if a proper challenge be overruled, he will not be nonsuited for refusing to pro- ceed. ^ § 11. Opening at Trial. — The courts of the United States have held that the party who holds the affirmative, and upon whom the burden of proof is thrown by the issue, has the right to open and close the argument.^ On a plea of tender the defendant holds the affirmative of the issue and has a right to open and close the cause.* But in Massachusetts the courts have adopted the uniform practice of giving the right of opening and closing in all cases to the plaintiff.* § 12. Manner of Opening. — The counsel of the party who has the right of opening, or the junior counsel, where there are two, commences by reading to the jury the declaration in the writ, together with the subsequent pleadings. He then shortly states to them the substance of these pleadings, and the points upon which issue has been joined, and which they are to determine. He then states the facts and circumstances of the case, the substance of the evidence which he intends to adduce, and its application to the points of the case ; and he also remarks upon, and cites his authorities for, any prin- ciples of law on which, together with the matters of fact, the jury will have to found their verdict. He may also state the matter of defence, if it appear from the record, or from a no- tice of set-off or the like, and also the evidence by which he can disprove it.^ § 13. The Oath to Witnesses. — The case being opened, the opening counsel for the plaintiff calls his witnesses, who are sworn by the clerk or the presiding judge. The usual mode of administering the oath, by holding up the right hand, is observed in Massachusetts. But the statutes provide that " when a person to be sworn before a court or magistrate declares that a peculiar mode of 1 DoTcy V. Hobson, 6 Taunt. 46. * Auld v. Hepburn, 1 Cranch, C. Ct. 2 Gardner v. Turner, 9 Johns. 260 ; 187. Pringle w. Huse, 1 Cow. 432. ^ Page v. Osgood, 2 Gray, 260. 8 Davidson v. Henop, 1 Cranch, C. « Howe's Pr. 252. Ct. 280. 358 THE JUKY, TRIAL, AND VERDICT. [CH. XXIX. swearing is in his opinion more solemn and obligatory than by holding up the hand, the oath may be administered in such mode." ' The statutes further provide that " Every Quaker when called on to take an oath shall be permitted, instead of ■swearing, solemnly and sincerely to afi&rm under the pains and penalties of perjury. " Every person who declares that he has conscientious scruples against taking any oath shall, when called upon for that purpose, be permitted to affirm in the manner prescribed for Quakers, if the court or magistrate on inquiry is satisfied of the truth of such declaration. "Every person believing in any other than the Christian religion may be sworn according to the peculiar ceremonies of his religion, if there are any such. Every person not a believer in any religion shall be required to testify truly under the pains and penalties of perjury ; and the evidence of such person's disbelief in the existence of God may be received to affect his credibility as a witness." ^ § 14. Examination of Witnesses. — The witnesses called, having been sworn, are then severally examined. The fif- teenth rule of the Rules of the Superior Court provides that " the examination and cross-examination of each witness shall be conducted by one counsel only on each side ; and the counsel shall stand while so examining or cross-examining, unless, for satisfactory reasons, the presiding judge shall mod- ify or dispense with this rule in any particular case." If more than one counsel appears on each or either side, the junior counsel generally conducts the examination of each witness in chief. When this examination is concluded, the opposite counsel may cross-examine him. The witness may then be re-examined by the party producing him, if necessary. § 15. Rules for examining Witnesses. — It is impossible to furnish any specific directions as to the mode of examining witnesses, for this depends upon the peculiar circumstances of each case, the character of the witnesses, and, in no small degree, upon the talent and experience of counsel. There are 1 Pub. St. c. 169, § 14. " Pub. St. c. 169, § 15-17, § 17.] THE JURY, TRIAL, AND VERDICT. 359 a few general rules upon this subject, as also upon the mode of cross-examining witnesses ; but they belong more properly to the subject of evidence, — in the treatises upon which they are stated at length. A few suggestions upon the subject, however, seem to be appropriate here. Mr. Chitty says : " There are undoubtedly two principal rules to be observed in examining a witness in chief, viz. : first, to ask no impertinent or useless questions ; secondly, not to ask a leading question. The first is objectionable as wast- ing time, but the judge will in general, for a short time, give the counsel credit for a just object connected with the suit, and not interfere till it is obvious the succession of similar questions will not lead to any useful result. With respect to leading questions, the assigned reason in support of the rule is, that a witness has a strong feeling in favor of the party who has subpoenaed him, and is disposed to swear anything he thinks will serve that party ; and that a leading question in effect suggests to the witness the answer that he is desired to give, and invites misrepresentation." ^ § 16. Leading Questions. — In Some instances the court will allow leading questions to be put upon an examination in chief, as where it evidently appears that the witness wishes to conceal the truth and to favor the opposite party. So where, from the nature of the case, the mind of the witness cannot be directed to the subject of inquiry without a partic- ular specification of it, as where he is called to contradict the testimony of a former witness, who has stated that certain expressions were used, it is the usual practice to ask whether these particular expressions were used.^ § 17. Separate Examination. — If the judge deems it essen- tial to the discovery of the truth that the witnesses should be examined out of the hearing of each other, he will so order it ; and this order, on the motion or suggestion of either party, is rarely withheld. But it is not demandable of right.^ 1 3 Chitty's Gen. Pr. 891. 8 1 Greenl. Ey. § 432. 2 3 Chitty's Gen. Pr. 894 ; 1 Starkie, Ev. 150 ; Green v. Gould, 3 Allen, 465. 360 THE JOEY, TRIAL, AND VERDICT. [CH. XXIX. § 18. Cross-Examinations. — When a competent witness has been called and sworn, the other party will be entitled to cross-examine him, though the party calling him do not choose to examine him in chief unless he was sworn by mistake.^ The extent to which a cross-examination may be carried is within the discretion of the presiding judge, and no exception lies to the mode of its exercise.^ Leading questions are usually allowed to be put to a wit- ness in a cross-examination ; 'but the right to do it is a quali- fied one, to be regulated and controlled by the presiding judge. Mr. Chitty quotes, with approval, the following words of BuUer, J. : " You may lead a witness upon cross-examination to bring him directly to the point as to the answer; but not go the length of putting into the witness's mouth the very words which he is to echo back again." Beyond this, lead- ing questions should never be put except in cases where the witness is obviously anxious to conceal the truth.^ The young practitioner often feels it to be his duty to cross- examine each witness offered by the opposing party, and will frequently examine him on all matters of which he has testi- fied. Such a cross-examination usually strengthens the tes- timony of the witness in favor of the party who called him, besides wasting the time of the court. It is a practice to be avoided on both grounds. Unless there is good reason to believe that the witness has testified to that which is untrue, or has omitted to testify to some material fact within his knowledge, it is the wisest course not to cross-examine him at all. Witnesses are not usually unfriendly to the party by whom they are called, and any cross-examination is liable to draw from such witnesses statements tending to strengthen their testimony given in the direct examination. There are cases, however, where a rigid cross-examination is attended with beneficial results. When a witness has testified to ma- terial matters, which a party against whom the evidence is given believes to be untrue, then there is occasion for a cross- 1 1 Greenl. Ev. § 445. 3 3 Chitty's Gen. Pr. 899. ^ Winship u. Neale, 10 Gray, 382 Rand v. Newton, 6 Allen, 38. § 19.] THE JURY, TRIAL, AND VERDICT. 361 examination, which calls for all the skill and ingenuity of counsel to break the effect of the testimony of the witness, by drawing from him statements inconsistent with, or contra- dictory of, his testimony in the direct examination. The most effectual way of doing this is by a series of questions put rapidly to the witness, without stopping to write down his answers, thus not giving to the witness any time to invent answers to be consistent with his previous testimony. If his testimony is true, it will be consistent ; if untrue, it will probably be inconsistent. Men do not often invent rapidly stories which, if untrue, will be consistent in all their parts. § 19. Browbeating a v/itness. — Ah attempt to break down a witness by browbeating him is too often made. It is sel- dom attended with any advantage to the party doing it, and even more seldom can it be justified. It can only be justi- fied when there is the most positive assurance that the wit- ness is corrupt and has testified falsely, and all other means in the cross-examination have failed to break the force of his testimony. It is certainly as true of a witness on the stand as of a criminal at the bar, that he is entitled to be considered inno- cent until he is proved to be guilty, and a witness should be treated at least with as much courtesy as the prisoner, who is brought into court on an indictment by the grand jury. Generally witnesses are summoned into court by a subpoena. They are called upon to testify, under oath, what they know in relation to the case on trial. Ordinarily it is with them a duty which they cannot avoid if they would, and while in the performance of that dutj' they are entitled to be treated courteously and kindly. A lawyer has no better right to in- sult a witness on the stand, than he has to do it in the street or in any other place. To attempt to browbeat a witness of an opposing party, or to treat him in any way discourteously, because his testimony is not what the adverse party and his counsel desired it to be, is neither good manners nor good policy. An intelligent jury will never approve it, and it will have a strong tendency to raise in their minds a prejudice against a party, who. 362 THE JURY, TEIAL, AND VERDICT. [CH. XXIX. by his counsel, is guilty of such a breach of privilege and decorum. § 20. Attempts to disparage a 'Witnesa. — It is an artifice not uncommon at the bar, in order to disparage a witness, to ask him if he had ever before stated to any one what he had then testified in court. To this question the witness not accus- tomed to be in court will often answer. No, without intend- ing to misrepresent the facts. And yet the witness may have told the story to the party by whom he was called, or his counsel, and may have told some parts of it to other persons. This does not occur to him. By his answer he means to assert that he has never told the whole story to other persons. The counsel then argues to the jury the im- probability of the statement of the witness, to disparage his testimony. The device is artful. Is it fair ? Counsel have no occasion to try to conceal from the jury the fact that they have talked with their witnesses about the case, and heard from them what their testimony would be. It is the duty of counsel to do this in every case where it is possible, and the attorney who fails to do it fails to make proper preparation for the trial of his case. The preparation is needed not only for the attorney, but for the witnesses. A timid witness not accustomed to the courts, however honest and truthful, often needs such pre- paration to enable him to state accurately, and in their proper order, the facts within his knowledge in relation to a compli- cated case. Another device often resorted to to disparage a witness is this. In the course of a cross-examination the counsel draws from the witness some statement, perhaps immaterial, in which the witness is clearly mistaken, or which can be proved to be incorrect. This is liable to happen with an honest wit- ness. Every other part of his testimony may be strictly true, but in one statement the witness labors under a mistake or misapprehension. The counsel then asks the witness, " Is that statement as true as the rest of your testimony ? " The witness, believing all his testimony to be true, answers, '• Yes." The argument is then made to the jury that, because § 21.J THE JUEY, TRIAL, AND VERDICT. 363 that One statement is not correct, therefore the whole tes- timony is to be considered false. Nothing can be more fallacious. The error of the witness in one particular may have a ten- dency to weaken the confidence which might otherwise be placed in the entire accuracy of all his statements. The ex- tent of this effect would depend on the character of the er- roneous statement and all the circumstances in the case ; but in most cases the mere fact that the testimony of a witness is shown to be erroneous in one particular does not justify the assumption that all the rest of his testimony is untrue. The testimonj'- of a witness may, however, be wholly de- stroyed by a cross-examination, by which he is led to state things so inconsistent with or contradictory to his previous testimony, that the jury will not rely on any portion of his testimony. There are various modes of impeaching and dis- paraging a witness; for the consideration of which I refer the reader to the various works on Evidence. § 21. Impeachment of Witness. — By the common law a party is not allowed to introduce testimony for the mere pur- pose of impeaching the credit of a witness whom he has him- self produced, but is deemed to have held him out as worthy of credit.! But in Massachusetts this rule is abrogated by the statute, which provides that the party producing a witness " may contradict him by other evidence, and may also prove that he has made at other times statements inconsistent with his present testimony ; but before such last-mentioned proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be men- tioned to the witness, and he must be asked whether or not he has made such statements, and, if so, allowed to explain them." 2 A party need not be surprised at the testimony of a witness called by him in order to enable him to impeach his cred- ibility by showing that he has made at other times statements inconsistent with his testimony.'^ The testimony which it 1 Brown v. Bellows, 4 Pick. 194; ^ Eyersony.Abington, 102 Mass. 526. Adams v. Wheeler, 97 Mass. 67. ^ Brooks v. Weeks, 121 Mass. 433. 364 THE JUKY, TRIAL, AND VERDICT. [CH. XXIX. is proposed to contradict must, however, be material to the issue 1 § 22. Competency of Children as Witnesses. — There is no precise age within which children are absolutely excluded from testifying on the presumption that they have not suffi- cient understanding. At the age of fourteen every person is presumed to have common discretion and understanding till the contrary appears, but under that age it is not so pre- sumed ; and therefore inquiry is made as to the degree of understanding which the child offered as a witness possesses ; and if he appears to have sufficient natural intelligence and to have been so instructed as to comprehend the nature of an oath, he is admitted to testify, whatever his age may be. This examination of the child is made by the judge, and it is a matter within his discretion whether to admit or reject his testimony.^ §23. Depositions and Documents. — At some convenient and proper time during the trial, the counsel of each party produces and reads to the jury any documents relied upon, and any depositions that may have been taken in the case. This is usually done by the junior counsel, Avhen more than one is employed for the same party. If interrogatories to parties have been filed and answered, these may also be read by the junior counsel. § 24. Defence and Close. — When the party who opened the case has thus examined his witnesses and gone through his evidence, the junior counsel of the opposite party states to the jury the matter of his client's defence, and the evidence which he shall adduce in support of it, and remarks upon the case and evidence of the other party, so far as to make his own case intelligible. He then calls his witnesses, who are sworn, examined, and cross-examined in the manner already referred to, and also produces any written evidence that he intends to introduce. When the evidence is all in, the senior counsel in the defence argues the case fully to the jury, and thus 1 Force v. Martin, 122 Mass. 5. See 2 1 Greenl. Et. § 367. also Ryerson v. Abington, 102 Mass. 526 ; Day V. Cooley, 118 Mass. 524. § 25.] THE JURY, TKIAL, AND VERDICT. 365 closes it on his part. After the senior counsel for the defence has thus closed the case on his part, the senior counsel of the opening party does the same on his side, by a full argument to the jury, and the case is then closed on both sides.^ § 25. Charge of the Judge. — When the case is closed on both sides, the judge sums it up, that is, he states to the jury the matters really in dispute between the parties. If there be any questions of law involved in the case, he states to the jury the principles upon which the case must be decided, the manner in which they must be applied, and their bearing upon the case. He also states to them, if necessary, the form in which their verdict must be given. The statutes of Mas- sachusetts provide that the courts shall not charge juries with respect to matter of fact, but may state the testimony and the law.^ In the ease of the Commonwealth v. Barry ,^ Bigelow, C. J., said of the statute here referred to : " It must be admitted that this provision of the statute is not expressed in terms which are free from ambiguity. But although there is a seeming repugnancy in the two branches of the section, we think that they are susceptible of a reasonable interpretation which will give full force and efPect to both of them, and at the same time carry out what seems to have been the manifest purpose of the legislature. It is clear beyond controversy that the first clause contains a distinct and absolute prohibi- tion ' that the courts shall not charge jurors with respect to matters of fact.' " To reconcile this with the clause that follows, which pro- vides that the courts ' may state the testimony and the law,' the prohibition must be regarded as a restraint only on the expression of an opinion by the court on the question whether a particular fact or a series of facts involved in the issue of a case is or is not established by the evidence. In other words, it is to be construed so as to prevent courts from interfering with the province of the jury by any statement of their own judgment or conclusion upon matters of fact. This construc- 1 Howe's Pr. 265. ' 9 Allen, 276, 277. " Pub. St. c. 153, § 5. 366 THE JURY, TEIAl, AND VERDICT. [CH, XXIX. tion effectually accomplishes the great object of guarding against any bias or undue influence which might be created in the minds of jurors if the weight of the opinion of the court should be permitted to be thrown into the scale in de- ciding upon issues of fact. But further than this the legisla- ture did not intend to go. The statute was not designed to deprive the court of all power to deal with facts proved. On the contrary, the last clause of the section very clearly con- templates that the duty of the court may not be fully dis- charged by a mere statement of the law. " By providing that the court may also state the testimony, the manifest purpose of the legislature was to recognize and affirm the power and authority of the court, to be exercised according to its discretion, to sum up the evidence, to state its legal effect and bearing on the issues, and to indicate its proper application under the rules of law." In Durant v. Burt,^ Foster, J., said: "A judge may state the testimony, and this can hardly be done without calling the attention of the jury to the degree of weight and importance to be attached to particular facts, if they are proved or ad- mitted. " To say that certain circunastances deserve to be seriously considered or are entitled to great weight is not expressing an opinion as to what facts have been proved, but only in- structing the jury with regard to the relative materiality and importance of different portions of the evidence. To assist and guide the deliberations of the jury by such comments is no infringement upon their province, but often a duty neces- sary to lead their minds to an enlightened and discriminatiijg consideration of the case." In Gavett v. Manchester & Lawrence Railroad Co.,^ Bige- low, C. J., said : " It is the clear duty of the court to decide on the legal effect of the evidence and to say whether it is such as to entitle a party to a verdict ; otherwise the jury might be called on to decide a pure question of law. It may 1 98 Mass. 161. Learned, 117 Mass. 190; Commonwealth ^ 16 Gray, 505. See also Eane v. v. Brigham, 123 Mass. 248. § 27.] THE JURY, TRIAL, AND VERDICT. 367 be said generally that it is the duty of the judge to decide whether there is any evidence ; of the jury to determine upon its sufficiency." In this case the chief justice states fully the line which marks and separates the respective duties and functions of the court and jury. § 26. Exceptions to Rulings. — If, in the course of a trial of a cause, any party thereto is aggrieved by any ruling, opinion, direction, or judgment of the court in matters of law, he may take exceptions thereto. The exceptions should be taken at the time of the ruling, opinion, direction, or judgment ex- cepted to, and the court requested to note the exception. Within three days after the exception is taken it must be committed to writing and filed with the clerk, and notice thereof given to the adverse party, and, before the final ad- journment of the term of the court, presented to the court, unless for good cause shown or by consent a further time is allowed by the court. If the exceptions are found conforma- ble to the truth they will be allowed by the presiding judge. In all cases the adverse party must have an opportunity to be heard concerning the allowance of such exceptions.-' § 27. Deliberation of the Jury. — After the cause has thus been committed to the jury, unless they agree upon their verdict without quitting the jury-box, they retire to a room provided for the purpose to deliberate upon their verdict, — a sworn officer accompanjdng and taking charge of them. After they have retired, they are not allowed to speak with any person except the officer who keeps them, and not with him until they have agreed upon their verdict. Neither, after having so retired, can they receive any new evidence. Even the judge who presided at the trial is not permitted to give any instructions or directions to the jury respecting the cause, unless in open court, and where practicable in the presence of both parties. Any such communication will be a good ground for a new trial.^ It is the practice here to suffer the jury to take with them all the written evidence which has been used in the. case, 1 Pub. St. t. 153, § 8. 2 Sargent v. Roberts, 1 Pick. 337. 368 THE JUEY, TRIAL, AND VERDICT. [CH. XXIX. though at common law the practice is different. In the Eng- lish courts they are allowed to take only letters-patent, deeds under seal, and exemplifications of depositions in chancery ; but they may take other books and papers not under seal, by consent of parties.^ The jury should remain together until they are discharged by a verdict, or by order of court. By the established prac- tice of the courts, however, juries are frequently permitted, when they are out during a long adjournment of the court, or for the night, to seal up their verdict when they have agreed, and then to separate.^ Where a jury returned a sealed verdict for the plaintiff, but assessed no damages, and upon the opening of the ver- dict were directed to retire and assess damages, and did so, it was held that the defendant had no ground of exception.* § 28. The Court may send out Jury twice. — The statutes provide that " when a jury, after due and thorough deliber- ation upon any cause, return into court without having agreed on a verdict, the court may state anew the evidence, or any part of it, and explain to them anew the law applicable to the case, and may send them out for further deliberation ; but if they return a seconfl time without having agreed on a ver- dict, they shall not be sent out again without their own con- sent, unless they ask from the court some further explanation of the law." * § 29. The Jury may be allowed to view. — " The jury in any case may, at the request of either party, be taken to view the premises or place in question, or any property, matter, or thing relating to the controversy between the parties, when it appears to the court that such view is necessary to a just decision : Provided, the party making the motion advances a sum sufSeient to defray the expenses of the jury and the officers who attend them in taking the view ; which expenses shall be afterwards taxed like other legal costs, if the party who advanced them prevails in the suit." ^ 1 Howe's Pr. 256 ; Arch. Pr. 197, 198. * Pnb. St. c. 170, § 42. 2 Winslow V. Draper, 8 Pick. 170. » Pub. St. c. 170, § 43. ' Chapman u. CoflBn, 14 Gray, 454, 456. § 31.J THE JUEY, TRIAL, AND VKEDICT. 369 § 30. Questions to jury and answers. — " III practice, when the counsel for either party thinks that a point of law may arise rendering it important to ascertain on which precise point the jury have found their verdict, it is usual for him to request the judge to put such questions to them ; as where the defence to an action on a bill of exchange was that there were two alterations, and the jury found a general verdict for the defendant, Tindal, C. J., in compliance with the re- quest of the plaintiff's counsel, inquired of the jury upon which of the* supposed alterations they founded their ver- dict." 1 In Smith v. Putney, the jury were inquired of (the defend- ant objecting) as to the items of damage which they had found. The Supreme Court held the inquiry to be proper, and corrected the verdict upon the information thus given at the final hearing, by ordering a new trial unless the plain- tiff would remit a certain part of the damages.^ In Pierce v. Woodward, it is held that the jury may be asked by the judge upon what ground they have returned their verdict, and if by their answer it appears that they have proceeded upon an erroneous principle, the verdict may be set aside.^ § 31. Return of the Jury, and Delivery of the Verdict. — When the jury have agreed upon their verdict, they return into court and bring with them their verdict, in all civil cases in writing, and also under seal if, by permission of the court, they have separated after having agreed. The verdict is then read aloud by the clerk, who asks the jury if they affirm the same ; for a verdict is not valid and final until pronounced and recorded in open court, and before it is thus afiirmed the jury may vary the verdict as first returned by them.* But when they have given their verdict, and have affirmed it, it is beyond recall, and the jury are discharged of the case. No juror can then be allowed to say that he will not agree to it, — or .that he agreed to it upon mistaken principles,^ — nor 1 1 Chitty's Gen. Pr. 921. ' Root a. Sherwood, 6 Johns. 68; 2 18 Me. 86. Blackley v. Sheldon, 7 Johns 32. a Pierce v. Woodward, 6 Pick. 206. * Bridge v. Eggleston, 14 Mass. 245. 24 370 THE JUKT, TKIAL, AND VERDICT. [CH. XXIX. can the affidavit of the jurors be read to impeach their verdict.^ When the verdict has been thus returned and affirmed, it is marked on the docket by the clerk, and is considered as then recorded, although the record of the case is not, in fact, made up until afterwards. § 32. Verdicts are of T-wo Kinds, General and Special. — The former are where the jury find that the defendant was " guilty " or " not guilty," " did promise " or " did not prom- ise," or, according to the rule in Massachusetts, find " for the plaintiff" or " for the defendant." The latter are where they find a special statement of facts, and refer the question of law upon the facts to the court.^ § 33. General Verdicts, — By the rule of the common law, general verdicts ought to be framed in the words of the issue tendered ; ^ but if they are not, the court will put them in form according to the justice of the case, before they are af- firmed, if the point in issue can be collected from the finding.* And the verdict should find the whole issue tried, and nothing more.^ If a jury. should find facts not submitted to them, besides finding the issue, such improper finding will be rejected as surplusage,® — as if they should undertake to find costs for either party, with which subject they have nothing to doJ § 34. As to the Verdict. — Where the position of a case is such that the finding of one or more of the issues is decisive of the case, and renders the other issues immaterial, the ver- dict may betaken and the jury discharged of the case, whether the parties do or do not consent.* If the jury return a verdict which is not such as the issue requires, the court may send them back to reconsider their verdict, with appropriate instructions, at any time before it is received and recorded as a verdict.^ ' Dana v. Tucker, 4 Johns. 487. But ^ Bacon v. Callender, 6 Mass. 303. see Smith v. Cheetham, 3 Caines, 57. ' Howe's Pr. 259. 2 Howe's Pr. 258. » French u. Hanchett, 12 Pick. 15 ; 8 Gerrish v. Train, 3 Pick. 124. Sutton v. Dana, 1 Met. 385. * Porter v. Rammery, 10 Mass. 64. ^ Goodwin v. Appleton, 22 Me. 453. 6 3 Salk. 372, 374 ; Clark v. Lamb, 6 Pick. 512. § 38] THE JURY, TRIAL, AND VEEDICT. 371 Where there are several actions between the same parties, or in favor of different plaintiffs, but against the same defend- ant, and depending on the same questions and the same evi- dence, and managed by the same counsel, it is within the discretionary power of the judge, notwithstanding objection on the part of the defendant, to order the actions to be put to the same jury at the same time,^ although the defendants employ distinct counsel, and the evidence in the several cases is different.^ § 35. Verdict. Polling the Jury. — When the jury have agreed upon their verdict, they are allowed to return into court and report by their foreman, and the verdict is affirmed. It was formerly the practice in Massachusetts, and is now in New York and some other States, to poll the jury at the request of either party, by inquiring of each juror separately and indi- vidually whether they agree to the verdict. The practice of polling the jury is now wholly obsolete in Massachusetts.^ The dissent of a juror to a verdict cannot be shown other- wise than by his own declaration publicly made in open court when the verdict is read by the clerk.^ § 36. The Court may set aside a Verdict. — The COUrt may at any time before judgment in a civil action for sufficient cause, set aside a verdict and grant a new trial.^ The practice in relation to this is the subject of the next chapter. § 37. Forms of Verdicts. — By rules of the Supreme Judicial Court and Superior Courts adopted since the passage of the Practice Act, it is provided that " the form of verdicts shall be as follows : ' If for the plaintiff, the jury find for the plaintiff and assess damages in the sum of '; if for the defendant, ' the jury find for the defendant ' ; ' unless the court shall in particular cases otherwise order.' " ^ § 38. Affirmation of Verdict. — When the jury return into 1 Witherlee v. Ocean Ins. Co., 24 * Nichols v. Suncook, 24 N. H. 457. Pick. 67. S Pub. Stat. c. 15-3, § 56. 2 City of Springfield v. Sleeper, 115 « Eule 33 of Superior Court; Eule Mass. 587. 25 of S. J. Court. s Eopps V. Barker, 4 Pick. 239. 372 THE JUEY, TRIAL, AND VERDICT. [CH. XXIX. court with their verdict, it is delivered to the clerk, by whom it is read to the jury and affirmed. If there be a general verdict on a declaration containing several counts, the plaintiff may, at any time during the term, on motion, have leave to amend the verdict, and enter it on any count on which the evidence by law would, at the trial, have entitled him to recover, and may have leave to strike out of his declaration any defective counts.^ The privilege secured to the plaintiff by this rule is an im- portant one ; for if any of his counts are defective, and he take a general verdict upon them all, it may be set aside. ^ The mode of proving at the trial the allegations of the plaintiff and of the defendant belongs to the subject of Evi- dence, and is briefly stated in a subsequent chapter. 1 Rale of Superior Court, 34. ^ See Hancock v. Haywood, 3 T. R. 433; Barnes v. Hurd, 11 Mass. 59. § 2.] NEW TRIAL. 373 CHAPTER XXX. NEW TRIAL. § 1. A motion for a new trial is one of the methods of obtaining relief from an adverse verdict. The power of the courts to set aside the verdict of a jury is often one of great importance in the administration of justice. Judge Howe, in' his work on Practice, says : "Causes are often brought before juries upon the general issue, where the facts are complicated, and the evidence is intricate, of great length, and sometimes contradictory, and when questions of great nicety and difficulty are involved in the discussion. Either party may be surprised by a piece of evidence which at another time he could have explained or answered, or he may be perplexed by a legal doubt which a little recollection would have solved. In the hurry of a trial, from a want of previous knowledge of the facts, the ablest judge maj'^ mistake the law or misdirect the jury ; he may not be able to state the facts and lay them before the jury so as to enable them clearly to understand the case. The jury are to agree upon their verdict without dispersing, and under these circumstan- ces the most intelligent men, with the best intentions, may bring in a verdict which they themselves might afterwards wish to reverse." ^ § 2. Po'wers of the Courts to grant We'w Trials. — The stat- utes provide that the Supreme Judicial Court and the Su- perior Court may at any time before judgment in a civil action set aside the verdict and order a new trial, for any cause for which a new trial may by law be granted ; or after verdict may report the case for determination by the Supreme Judicial Court.^ 1 Howe's Pr. 499. 2 pub. St. c. 153, § 6. 374 NEW TRIAL. [CH. XXX. On motions for new trials either party may allege exceptions to any opinion, ruling, or direction of the court in matters of law.^ § 3. Limitation of the Power to grant New Trials. — In the case of the Lowell Gas Co. v. Bean,^ Hoar, J., commenting on this provision of the statute, said : " But we cannot sup- pose that it was intended by this to allow a party to present a second time, as matters of law, upon a motion for a new trial, all the matters of law which arose or might have arisen during the trial, and upon which no question of law was then made or reserved. Upon motions for a new trial, new ques- tions of law may arise ; and if the decision of the motion rests or depends upon them they may be proper subjects of revision by the court above. But if the judge were hot asked to rule upon the legal effect of the evidence at the trial, he is not obliged to report the evidence for the purpose of raising such a question after verdict." In Merritt v. Morse,^ Morton, J., said : " The motions filed by the defendant and overruled by the Superior Court were simply motions for a new trial upon the ground that the damages found by the jury were excessive. Such a motion is addressed to the discretion of the presiding judge, and his decision cannot be reversed unless it rests or depends upon a question of law." It is held that the decision of a single judge of the Supreme Judicial Court, denying a motion for a new trial, is not sub- ject to revision by the whole court.* A rule of law laid down at the trial without exception cannot be excepted to upon a motion for a new trial.^ A ruling of the Superior Court on a motion for a new trial, so far as it proceeds on matters of fact or of discretion, or on questions of law which were or might have been raised before verdict, cannot be reversed on motion for a new trial.® 5 4. Causes for a New Trial. — In the case of Borrowscale 1 Pub. St. c. 153, § 8. 6 Kidney v. Richards, 10 Allen, 419, 2 1 Allen, 274, 275. 420. 8 113 Mass. 271-273. » Caverly v. McOwen,126 Mass. 222. * Phillips V. Soule, 6 Allen, 150. § 6.] NEW TRIAX. 375 V. Bosworth,^ Hoar, J., said : " The causes for which a new trial may by law be granted are not defined and it is not easy to give an exact and complete definition. When it appears to the court that a party has been deprived without his fault of a right or remedy, which the law gives him, it would gen- erally be held a legal reason for granting a new trial." In Cutler V. Rice,^ Shaw, C. J., said : " We know no limit to the power of the court so to interpose (by granting a new trial) where the plain and manifest dictates of justice require it, taking care that it shall never be so exercised as to encourage or shield negligence or fraudulent contrivance in the conduct of trials. But such an application is founded upon the broad- est principles of equity ; and the court will look at the state of the case and the effect of setting aside the verdict ; and it must appear that it will be substantially beneficial." § 5. A Neiw Trial is granted only iwhen Justice requires it. — Although the courts feel disposed to exercise their power very liberally, yet it must be made to appear to them that it is necessary for the sake of justice that the cause should be further heard and considered. A new trial will not, in general, be granted where the amount in dispute is too inconsiderable to merit a second examination ; nor will it be granted upon mere nice and for- mal grounds, which do not go to the merits ; nor in cases of strict right, nor where the evidence is at all doubtful, nor for defect in form, if it do not appear that injustice has been done.^ In criminal cases no new trial is ever granted where the verdict is one of acquittal, but if the verdict be against the accused, a new trial may be had if justice require it. It is difficult to fix in all cases absolute rules upon this subject ; the granting or refusing a new trial must depend in a great measure upon the legal discretion of the court, guided by the nature and circumstances of the case, and directed with a view to the attainment of justice.* § 6. Causes for a New Trial. — The principal grounds for 1 98 Mass. 36. ' Booden v. Ellis, 7 Mass. 507. 2 14 Pick. 495. * Bright v. Eynon, 1 Burr. 390. 376 NEW TRIAL. [CH. XXX. setting aside a verdict and granting a new trial are stated in Howe's Practice as follows : — 1. Misbehavior of the prevailing party. 2. Misconduct or mistake of the jury. 3. Want of a proper jury. 4. Excessive, or too small damages. 5. Verdict against law or evidence. 6. Misdirection or omission of the judge in summing up. 7. Admitting or refusing testimony contrary to law. 8. Unavoidable absence or mistake of witnesses. 9. Discovery of new and material evidence.^ These several causes will be considered in this order. § 7. Misbehavior of the Party prevailing. — If a party be guilty of any improper conduct towards the witnesses, as by threatening or persuading them, or by influencing them upon the stand, as by making signs how the witness shall answer, a new trial will be granted ; ^ so, when meat and drink and other refreshments have been furnished by a party to the jury, if the verdict be for that party .^ If any new evidence be furnished to the jury, after they leave the bar, by the party prevailing, a new trial will be granted. Where, before the verdict, the son-in-law of the plaintiff, who was also a witness, said to one of the jurors who tried the cause, that it was of great consequence to him, and that he should have to pay the costs if it went against the plain- tiff, and that the defence was a spiteful thing on the part of the defendant, the court granted a new trial, there having been a verdict for the plaintiff.* If a party obtaining a verdict have taken any unfair ad- vantage, contrary to justice and good conscience, to procure a verdict in his favor, a new trial will be granted.^ 1 Howe's Pr. 501, 502. 3 Co. Lit. 227 ; 21 Vin. Abr. 448, 2 Grovenor d, Fenwick, 7 Mod. 156; Trial (6. g.). Allen V. Aldrich, 29 N. H. 63 ; Perkins * Knight v. Freeport, 13 Mass. 218; V. Knight, 2 N. H. 474; Howe's Pr. Cilley w. Bartlett, 19 N. H. 313. 502. 6 Anderson v. George, 1 Burr. 353. § 8.] NEW TRIAL. 377 Any practice by the attorney of the party who has obtained a verdict has the same effect as if done by the party himself ; as, where an attorney wrote letters to some of the jurors, stating the hardship of his client's case, and a verdict was rendered in his favor, a new trial was granted.^ Merely requesting a juror to appear at the court is no cause for granting a new trial.^ Where it was sworn that handbills reflecting on the plain- tiff's character had been distributed in court, and shown to the jury on the day of trial, the court granted a new trial, and would not receive from the jury affidavits offered to prove that they had not seen them, and though the defendant de- nied all knowledge of the handbills.^ " If either party in a case in which a verdict is returned, during the same term of the court, either before or after the trial, gives to any of the jurors who try the cause anything by way of treat or gratuity, the court may, on the motion of the adverse party, set aside the verdict and award a new trial of the cause."* § 8. Misconduct or Mistake of a Jury, or Want of a Proper Jury. — New trials are often granted on account of the mis- conduct or mistake of the jury ; as where a jury determined their verdict by casting lots ; ^ but where each juror named a sum, and the whole, being added together, was divided by twelve, and the jury took the quotient for their verdict, a new trial was refused.^ If it be made to appear that a juror acted under the influ- ence of improper motives, a new trial will be granted.^ On a motion for a new trial, the court will not inquire into the consequences of a verdict as it affects costs, for these follow and are regulated by the verdict, and not the verdict by them.* Where, therefore, the jury give less than twenty dollars in an action commenced in the Court of Common 1 2 Vent. 17.3. Barnes, 441 ; 1 Stra. 642 ; Bullock v. 2 1 Stra. 643. Horsford, 2 Eoot (Conn.), 349. " Coster V. Merest, 3 Brod. & B. ' Grinnell o. Phillips, 1 Mass. 530, 272. 543 ; Eveleth v. Harman, 33 Me. 275. * Pnb. St. t. 170, § 41. ' Jeffries v. Randall, 14 Mass. 205. 5 Vaise v. Delaval, 1 T. R. 11; 8 Hagar v. Weston, 7 Mass. 110, 378 NEW TRIAL. [CH. XXX. Pleas, but awarded in their verdict full costs, the court re- fused to grant a new trial to enable the jury to give such a sum as would entitle the plaintiff to full costs, the verdict, so far as it related to costs, being inoperative.^ The misconduct on the part of the jurors is not, in all cases, a sufficient ground for setting aside a verdict and granting a new trial ; and although their misconduct may subject them to punishment, yet, if there do not appear to have been any abuse, the verdict will not be set aside. Thus, though after a jury have retired to deliberate on their verdict it is irregular for them to separate, yet this circumstance alone is not suffi- cient to invalidate their verdict.^ But if there be a probability^ or even the slightest sus- picion of abuse, the verdict will be set aside.^ Where the jury procured their separation by pretending to the constable that they had agreed upon a sealed verdict, when in truth they had not, and conversations out of doors were afterwards carried on in presence of some of them relative to the suit by persons not on the jury, and on assembling they were sent out again, though objected to by the plaintiff, and they then returned with a verdict for the defendant, it was set aside ; * and the court remarked that here was not only suspicion of abuse, but that the circumstances of the case in themselves amounted to positive abuse.^ But a verdict will not be set aside for irregularity or mis- conduct where the jury have separated after having agreed to a sealed verdict, and on coming into court one of the jurors dissents from it, who subsequently, on the jury being sent out again, agrees to the verdict as originally rendered ; there be- ing no evidence or suspicion of abuse.® Where a jury examined a witness after retiring from the court, though he was examined before them in court, and his testimony was the same, a new trial was granted.'' 1 Lincoln ti. Hapgood, 11 Mass. 358. * lb. ; Oliver v. Trustees, &c., 5 Cow. 2 Smith V. Thompson, 1 Cow. 221, 283; Howe's Pr. 505. note. ' Seymour t). Deyo, 5 Cow. 283. » Ex parte Hill, 3 Cow. 355 ; Horton ' Douglass v. Tousey, 2 Wend. 352. V. Hill, 2 Cow. 589 ; Burrill ti. Phillips, ' 7 Bae. Abr. Verdict H. ; Cro. Eliz. 1 Gal. 360. 411 ; Bol. N. P. 308 ; Com. Dig. PI. S. § 8,] NEW TRIAL. 379 In the case of the Commonwealth v. Roby,^ Shaw, C. J., said : " Where the irregularity consists in doing that which does not and cannot affect the impartiality of the jury or dis- qualify them for exercising the powers of reason and judg- ment, as where the act done is contrary to the ordinary forms, and to the duties which jurors owe to the public, the mode of correcting the irregularity is by animadversion upon the conduct of the jurors or of the officers, but such irregu- larity has no tendency to impair the respect due to such verdict." It is not a sufficient cause for setting aside a verdict, and granting a new trial, that one of the jurors, as to whose per- sonal qualifications no objection exists, had not been drawn and returned according to law, if the objection he not made until after verdict.^ So, if a person be returned as a juror de talibus cireumstantibus, for the trial of one cause, and be afterwards impanelled on the trial of another without being specially returned therefor, unless the objection be made before verdict, it will furnish no ground for a new trial.^ If a juror be objected to at the time of trial, and the fact on which the objection is founded be inquired into, according to the course directed by the statute, and he be thereupon adjudged to stand indifferent in the cause, the same objection cannot be afterwards made to the verdict, as a cause for a new trial, especially if it appear that justice has been done between the parties.* Nor will a new trial be granted on the ground that a juror sat in the trial as to whom there existed a good cause of challenge, but of which the party neglected to avail himself when the jury was impanelled. But if the party objecting had examined the juror upon the voir dire, and failed to dis- cover the fact which would have disqualified him, a new trial might be granted if it were afterwards discovered that he did not stand indifferent in the cause.^ 1 12 Pick. 520. ' Rowland v. Gifford, 1 Pick. 43, '' Amherst o. Hadley, 1 Pick. 38 ; note. Dovey v. Hobson, 6 Taunt. 460. * Borden v. Borden, 5 Mass. 67. 6 Jeffries v. Randall, 14 Mass. 205. 380 NEW TEIAL. [CH. XXX. The affidavits of jurors themselves -will never be received to prove or rebut the presumption of any impropriety or mis- conduct on their part relating to the trial or verdict.^ So, if a juror, through a mistake of his duty, agree to a verdict contrary to his own opinion, because he believes that the opinion of the majority must govern, his affidavit to prove the fact will not be received.^ Where a juror had been examined before taking his seat, and had declared himself to be impartial, and it was proved after verdict that he had expressed an opinion, and had been treated by the successful party during the trial, the verdict was set aside. ^ The rule is well settled, that the testimony of jurors is inadmissible to show their own misbehavior, but may be received to explain or contradict other evidence tending to impeach their conduct.* § 9. Excessive, or too small Damages. — A new trial may be granted for excessive or too small damages, where the law has fixed some settled rate by which the jury are to be gov- erned in assessing them ; and for excessive damages, likewise, where thej^ are so exorbitant that, though they depend upon opinion merely, the court may reasonably presume that the jury, in assessing them, did not exercise a sound discretion, but were influenced by passion, prejudice, partiality, or cor- ruption, — causes which naturally produce error and in- justice. The damages, however, must be clearly excessive, and such as everybody would cry out against, and not merely a sum larger than the judge who presided at the trial would have given. ^ 1 Vaise v. Delaval, 1 T. R. 11 ; Coster « Ducker v. Wood, 1 T. K. 277, 651 ; ». Merest, 3 Biod. & B. 272 ; Grinnell v. Jones v. Sparrow, 5 T. R. 257 ; Pleydell Phillips, 1 Mass. 542 ; Claggage v. Swan, v. Dorchester, 7 T. R. 529 ; Dunham v. 4 Bin. 150; Brooke c White, 4 Bos. & Baxter, 4 Mass. 79; Clark v. Binney, Pul. 330. See 1 Stra. 643; Smith u. 2 Pick. 113; Bodwell u. Osgood, 3 Pick. Cheetham, 3 Caines, 57. 379 ; Sliute v. Barrett, 7 Pick. 82 ; Clark 2 Commonwealth v. Drew, 4 Mass. v. Whitaker, 19 Conn. 319; Rand v. 391. Redington, 13 N. H. 76; Taunton Mfg. » Stndley v. Hall, 22 Me. 198. Co. v. Smith, 9 Pick. 11. ' Dorr ». Fenno, 12 Pick. 625; 2 Greenl. 41. § 10.] KEW TEIAL. 381 New trials are but seldom granted in such cases, on account of the smallness of the damages, although it is sometimes done when the case can be brought within the spirit of either of the rules before laid down.^ If a verdict is too large, the excess, if ascertained, may be remitted and judgment rendered for the balance.^ When damages are excessive, a new trial may be granted, in order to determine the amount of damages, without opening the whole case.^ § 10. Verdicts against Law or Evidence. — A new trial will be granted where the verdict is against the law,* against the evidence," or manifestly against the weight of evidence. But a new trial will not be granted where there is much conflicting testimony on both sides, which cannot be recon- ciled, unless it appear that the testimony was not duly weighed by the jury in giving their verdict. A difference of opinion between the court and jury as to the conclusions to be drawn from the evidence, or as to the credit due to the witnesses, is not a sufficient ground for granting a new trial. And in all cases where the evidence is doubtful, or in equi- librio, regard should be paid by the court to the finding of the jury, for it is their province to find a verdict upon the testi- mony.^ The decision ought, perhaps, to be so manifestly ■wrong as to satisfy the court that the jury could not have understood the case rightly, or considered it properly, or that they were under the influence of improper motives, before they should set aside the verdict as being against the evi- dence.' A new trial will not be granted on the ground that the verdict is against evidence, although it be given against the positive testimony of a witness unimpeached, if there be cir- ■" Howe's Pr. 509. Hoyt v. Gilman, 8 Mass. 336 ; Curtis v. 2 Doyle V. Dixon, 97 Mass. 208. Jackson, 13 Mass. 507 ; NOrthiield Bank " AVinn v. Columbian Ins. Co., 12 v. Brown, 37 Vt. 512. Pick. 279 ; Negus b. Simpson, 99 Mass. « Bright w. Eynon, 1 Burr. 390; Wen- 388. dell V. SafTord, 12 N, H. 171. * Dillingham u. Snow, 5 Mass. 547 ; ' Ward v. Center, 3 Johns. 271 ; Palmer v. Hyde, i Conn. 426. Bright v. Eynon, 1 Burr. 390 ; Bates v. ' Hammond v. Wadhams, 5 Mass. Graves, 2 Ves. Jr. 288 ; Trask u. Bowers, 353; Wait u. McNeil, 7 Mass. 261; 4 N. H. 312. 382 NEW TRIAL. [CH. XXX. cumstances discrediting such testimony, growing out of the facts in the case, or in the connection of the witness with the cause or the parties ; ^ nor where there is an entire ab- sence of direct proof, and presumptions alone are relied on to establish the necessary facts ; ^ nor in a penal action, un- less some rule of law has been violated; nor in a hard or trifling case, after a verdict for the defendant.^ A new trial will not be granted after a verdict for the plaintiff, where the defence is unconscionable and the verdict is according to the justice and honesty of the case, though it may be against the weight of evidence.* If a second jury return a verdict similar to the first, a third trial will not often be granted because the verdict is against the evidence.^ If the judge who presided at the trial of the cause be Satis- fied with the verdict, it is not usual to grant a new trial upon the ground of the verdict being against evidence.^ § 11. Misdirection or Omission of the Judge in Summing up. — A new trial will be granted for the misdirection or omission of the judge in summing up,'^ or on account of his admitting or refasing testimony contrary to law.^ As where the de- fendant had brought into court what she supposed justly due, but it did not prove enough by forty-one cents, and the judge directed the jury that they might still find for the defendant, if they considered the deficiency a mere trifle, and they found accordingly.® Where the judge instructed the jury that the evidence of- fered by the plaintiff, from which they might have presumed 1 Wait V. McNeil, 7 Mass. 261 ; HaU Goodwin v. Gibbons, 4 Burr. 2108; 6 V. Huse, 10 Mass. 39. Mod. 22 ; Silva v. Low, 1 Johns. Gas. ^ Blanchard v. Colburn, 16 Mass. 336. 345. 6 Bui. N. P. 327. 8 Wilson V. Eastall, 4 T. R. 753 ; ' Baylies v. Davies, 1 Pick. 206 ; Jarvis v. Hatheway, 3 Johns. 180 ; Hur- Ponsec v. Magnay, 6 Taunt. 231 ; Abbot tin V. Hopkins, 9 Johns. 36 ; Boyden a. v. Sebor, 3 Johns. Gas. 39. Moore, 5 Mass. 365. 8 Hunt i'. Adams, 7 Mass. 518 ; Mer- * Wilkinson a. Payne, 4 T. R. 468 ; cer v. Sayre, 7 Johns. 306. Edmonson v. Machell, 2 T. E. 4. 9 Boyden v. Moore, 5 Mass. 365. s For the rule and its exceptions, see § 11.] NEW TRIAL. 383 facts sufBcieut to justify a verdict for the plaintiffs, was wholly insufficient, a new trial was granted. ^ Where evidence was rejected which ought to have been received on one count, though that count was not relied on, nor even read by the plaintiff, a new trial was granted, there having been a general verdict for the defendant on all the counts." If the judge omit to charge the jury upon the ground that the evidence is clear in favor of one party, and the jury find foB the other, a new trial will be granted.^ So, if the judge, after the cause is committed to the jury, give them any direc- tions concerning it except in open court, a new trial will be granted.* Where the cause of action was trifling, and the plaintiff recovered only nominal damages, the court refused to set aside a verdict for the misdirection of the judge, provided the plaintiff would elect to discontinue without costs ; ^ and the court have refused to set aside a verdict on motion of the defendant, wliere the recovery was only nominal, or for a very small sum, and the defendant was entitled to costs as the verdict stood.^ So, likewise, a verdict for defendant, or a non- suit, will not be set aside where it is evident that the plaintiff can only recover nominal damages.^ And the court will not hear a motion to set aside a nonsuit at the trial where the plaintiff has since died, the only effect obviously being merely to unsettle the question of costs.^ And so where counsel rose to address the jury, and the judge told him that he should charge against him, and he did not therefore address the jury, it was held that this was a voluntary relinquishment of the right to address them, and 1 Aylwin v. Ulmer, 12 Mass. 22 ; v. Fales, 5 Mass. 101 ; Newhall v. Hop- Wilkinson u. Scott, 17 Mass. 249; Wil- kins, 6 Mass. 350. son V. Eastall, 4 T. R. 753. ^ pieming v. Gilbert, 3 Johns. 528. 2 Middlesex Canal Co. v. McGregor, ^ Hurst v. Barrell, 5 Johns. 137; Van 3 Mass. 124. Slyck v. Hogeboom, 6 Johns. 270. ' Page V. Pattee, 6 Mass. 459. ' Hyatt v. Wood, 3 Johns. 239 ; Bran- * Sargent o. Roberts, 1 Pick. 337 ; tingham v. Fay, 1 Johns. Cas. 255. Emerton v. Andrews, 4 Mass. 653 ; Jones ^ Seymour v. Deyo, 5 Cow. 289. 384 NEW TRIAL. [CH. XXX. not compulsory by the decision of the judge, and the court refused for this reason to grant a new trial.^ It seems that, where the judge omits to notice material tes- timony in his charge to the jury, the court will not grant a new trial, unless the party call his attention to such tes- timony.2 If the judge, however, omit to instruct the jury as to a material point or fact in the cause, and their verdict be in favor of the party who was bound to prove the fact, and without proof of which the verdict would be wrong, a new trial will be granted, although there was evidence to prove the fact.^ If the judge presiding at a trial submits the case to the jury under instructions which permit them to find a ver- dict which the evidence is not sufficient to sustain, the other party is entitled to a new trial, although the instruc- tions as an abstract proposition were accurate.* A new trial will not be granted on account of a casual overstatement by the judge to the jury of the requisite degree of certainty in proving facts, if at the same time he states in explanation of his meaning the true rule of law." § 12. Admitting or refusing Testimony contrary to Law. — A new trial will not be granted on the ground that improper evidence was admitted and commented on by the judge, if no objection to its admission were made at the trial, but the objection will be considered as waived.* If an action be founded on a written instrument in which no consideration is expressed, and no objection be made at the trial of the want of consideration, the objection cannot be made after verdict, as the ground of a new trial.'' It is held that a party had a right to a new trial if proper evidence was excluded, or improper evidence received, or erroneous instructions were given.* 1 Jackson d. Woodruff etal. C.Cody, 5 ^yiiitcher i>. Shattuck, 3 Alien, 9 Cow. 140. 319. 2 Ex parte Baily, 2 Cow. 479. 6 -Wait ». Maxwell, 5 Pick. 217. 8 Truesdell v. Wallis, 4 Pick. 63. ' Arms v. Ashley, 4 Pick. 71. * Brightman v. Eddy, 97 Mass. 478. » Tuttle v. Gates, 24 Me. 395. § 13.] NEW TRIAL. 385 If incompetent evidence is admitted at a trial, a new trial must be granted, although since the former trial a statute has been passed under which the evidence would be competent.* Rulings on the competency of evidence offered upon motion for a new trial are subject to revisions on exceptions.^ If a verdict for the plaintiff has been set aside solely be- cause of the admission of improper evidence put in to prove one material fact, the court has power to confine the new trial to proof of that fact only.^ The admission of incom- petent evidence to prove undisputed or immaterial facts fur- nishes no ground for a new trial.'' The admission of material incompetent evidence under ob- jection is ground for a new trial, although neither counsel nor court alludes to it afterwards in the course of the trial ; ^ but a new trial will not be granted merely because testimony was admitted which was irrelevant, and did not bear upon any question decided by the jury against the losing party.® § 13. TTsavoidable Absence or Mistake of Witnesses. — The court will sometimes grant a new trial on account of the unavoidable absence of witnesses.^ But this must be where the party was so situated that a continuance could not be had ; for if a party, knowing his witnesses to be absent, choose to risk a trial without their testimony, he ought to abide by the result ; ^ and a new trial is never granted for the neglect of a party in not coming prepared with evidence which he knew to exist, and might have produced at the former trial, or for not going into the examination of that evidence.^ But if the attendance of a material witness on one side be prevented by the fraud or misconduct of the other party, a new trial will be granted.*"* If the judge stop the party from producing all his evidence, 1 Woodrow V. Mansfield, 106 Mass. * Barry v. Bennett, 7 Met. 354. 112. ' 2 Salk. 645 ; 6 Mod. 22. 2 Woodward v. Leavitt, 107 Mass. ' Mercer v. Sayre, 7 Johns. 306. 453. » 2 Salk. 647, 653 ; 1 Wils. 98 ; Gist ' Wayland v. Ware, 109 Mass. 248. v. Mason, 1 T. E. 84 ; Vernon v. Hankey , * Bragg V. Boston & Albany R. E. 2 T. E. 113. Co., 9 Allen, 54. lo 11 Mod. 52, 141. 5 Magnire v. Middlesex R. R., 115 Mass. 239. 25 386 NEW TEIAL. [CH. XXX. upon the ground that sufficient has been given in, and the verdict be against such party, a new trial will be gran-ted.^-: § 14. Discovery of New and Material Evidence. — The most common cause for granting a new trial in our courts is the discovery of new and material evidence : since the trial. In order to support a motion for a new trial upon the ground of newly discovered evidence, it ought to be made to appear that the testimony has been discovered since the trial, or that no laches is imputable to the party, and that the testi- mony is material ; if the party had known of the existence of the testimony, and could not procure it in time, he ought to have applied to postpone the former trial.^ A new trial will not in general be granted for the purpose of introducing newly discovered evidence merely cumulative in its character ; * nor for the purpose of impeaching the testi- mony given at a former trial by discrediting the witnesses, or by proving them to have been convicted of crimes which ought to have excluded them from testifying.* In slander for charging the plaintiff with a felony, the court refused to grant a new trial to let in newly discovered evi- dence in support of the plea of justification.® A party will not be aided after verdict, or after a report in chancery, or in the case of an award of referees, by a new trial, unless he can impeach the justice of the verdict, report, or award, by facts of which he could not avail himself in the former trial ; or where he was prevented from doing it by the fraud, accident, or other act of the opposite party, with- out any neglect or improper conduct of his own.^ If the new evidence go to impeach the whole of the oppo- 1 Dunham v. Baxter, 4 Mass. 79. . * Hammond v. Wadhams, 5 Mass. i' Stockbridge v. West Stockbridge, 3.'53; Commonwealth w. Green, 17 Mass. 13 Mass. 302; HolUngsworth v. Napier, 515; Halsey v. Watson, 1 Caines, 24; 3 Caines, 182; Dennett w. Dennett, 44 Shumway d. Fowler, 4 Johns. 425 ; Du- N. H. 531 ; Watts v. Howard, 7 Met. ryee t).-Denniston,i 5 Johns. 248 ; Row- 478. ley V. Kinney, 14 Johns. 186. ' Smith V. Brush, 8 Johns. 84 ; Wal- ^ Beers v. Eoot, 9 Johns. 264. ler V. Graves, 20 Conn. 305 ; Howard v. « Standen v. Edwards, 1 Ves. Jr. 133 ; • Grover, 28 Me. 97 ; Gardner «. Mitchell, Marine Ins. Co. v. Hodgson, 7 Granch, 6 Pick. 114; Plymouth v. Mills, 7 Al- 332; Duncan v. Lyon, 3 Johns. Ch. len, 438. 356 ; Bigelow u. Newell, 10 Pick. 348. § 15.] I NEW TRIAL. 387 site party's case by the imputation of fraud, a new trial will be sometimes granted ; as where payment was sworn to at the trial by two witnesses, who, there was strong reason to believe, had been tampered with.^ The court will decide upon the materiality of the newly discovered evidence, and grant or refuse the motion or peti- tion for the new trial accordingly .^ § 15. When New Trial will not be granted. — When substan- tial justice has been done, a new trial will not be granted merely because of some immaterial matter introduced on the trial.^ A new trial will not be granted to enable the defend- ant to plead the Statute of Limitations.* The court will not grant a new trial when the equity is strongly in favor of the verdict, although what was stated by the court as the law, and on which the verdict was founded, is doubtful." The court will set aside a verdict which is against the law and the evidencei^ but the. court. will not. set aside a verdict as against evidence, unless satisfied that substantial injustice has been done.'^ A new trial will not be granted on the ground that a juror sat in the trial as to whom there existed a good cause of chal- lenge, but of which the party neglected to avail himself when the jury was impanelled ; ^ nor because one of the jurors had not been drawn and returned according to law, if the objec- tion be not made till after verdict;® nor on the ground that some of the jurors were irregularly selected, although the. losing party did not know of such irregularity before the verdict;^" nor on the ground that a talesman sat in the trial of a cause for which he was not returned ; ^^ nor because one of the jury was more than sixty-five years old, which was not known to the losing party until after the verdict was returned.12 1 Peterson y. Barry, 4 Bin. 481. . ' Gould v. White, 26 N. H. 178. 2 Sawyer v. Merrill, 6 Pick. 478. » Jeffries v. Randall, 14 Mass, 205. 8 Barry v. Bennett, 7 Met. 354; » Amherst u. Hadley, 1 Pick. 38. Cowlea V. Coe, 21 Conn. 220. i» Page v. Danvers, 7 Met. 326. ; * Doty t!. White, 2 Root, 426. " Rowland v. Gifford, 1 Pick. 43. 6 Rogers k. Page, Brayt. (Vt.) 169. " Munroe v. Brighani, 19 Pick. 368. 6 Trask v. Bowers, 4-N. H. 312. 388 NEW TBIAL. [CH. XXX. The statutes provide that " if a party knows of an objection to a juror in season to propose it before the trial, and omits to do so, he shall not afterwards be allowed to make the same objection, unless by leave of the court," and that " no irregu- larity in a writ of venire facias, or in the drawing, summon- ing, returning, or impanelling of jurors, shall be sufficient to set aside a verdict, unless the party making the objection was injured by the irregularity, or unless the objection was made before the returning of the verdict." ^ It is held that although an infant is disqualified from serv- ing as a juror, yet, if his name is on the list of jurors returned and impanelled, his serving as a juror does not entitle him against whom a verdict has been rendered to have the verdict set aside, although he was ignorant of the fact of minority until after the verdict.^ Interest of a juror, if known to counsel before the trial, although not known to his client until after verdict, is no ground for granting the client a new trial.^ A party who has not challenged a juror or claimed the right to have him examined under the statutes is not as mat- ter of law entitled to a new trial, because of the juror's relationship to the other party or his counsel, although with- out fault he was ignorant of the fact until after verdict.* § 16. The mode of obtaming a new trial is by petition or motion. The twenty-sixth rule of the Rules of the Supreme Judicial Court of Massachusetts provides that " no motion for a new trial shall be sustained in any civil action after verdict, either on account of any opinions or decisions of the judge given in the course of the trial, or because the verdict is alleged to be against evidence or the weight of evidence, unless, within three days after the verdict is returned, the counsel of the party complaining of the proceedings or of the verdict shall file a motion for a new trial, specifying the grounds of his complaint, and cause a copy of the motion to be delivered to the adverse counsel on the day the same shall 1 Pnb. St. c. 170, § 39, 40. * Woodward v. Dean, 113 Mass. 297 ; ^ Wassura v. Feeney, 121 Mass. 93. Smith v. Earle, 118 Mass. 531. ' Kent V. Charlestown, 2 Gray, 281. § 17.] NEW TRIAL. 389 be filed. And if it shall be alleged, as a ground of the motion, that the verdict is against the evidence or the weight of it, the counsel of the party shall, within ten days after filing his motion, make out and deliver to the clerk a legible copy of his minutes of the oral evidence, and specifj^ the depositions or documents on which he intends to rely in support of his motion; otherwise the motion shall be stricken off, and judg- ment may be rendered on the verdict, on the motion of the counsel for the party in whose favor the verdict shall be re- turned: Provided, that, should the trial of any case be had so near the close of any term that the foregoing rule cannot be complied with, the motion for a new trial shall be made be- fore the court adjourns, and the specification of the reasons shall be filed within three days afterwards ; and such time, not exceeding ten days, shall be allowed for a compliance with the residue of the rule as the presiding judge shall order." The Rules of the Superior Court allow such motions to be filed within four days after verdict.^ § 17. Motions for new trials are usually heard by the judge who presided at the trial, and at the term of the court when the trial was had, or soon after it, while the evidence in the case is fresh in his recollection. If the ground of the motion is such as to require the admission of new evidence, such evi- dence is received, and the motion then argued to the court on the whole evidence, so far as it is pertinent to the matter alleged in the motion. It is held that a judge of the Superior Court has no au- thority under the statute, at the hearing of a motion for a new trial, to report for the determination of the Supreme Judicial Court a question of law which might have been and was not raised before the verdict ; ^ or a case heard with- out a jury, without making any decision in matter of law or entering of record a finding upon the facts equivalent to the verdict of a jury upon which judgment may be rendered.^ 1 Knle 35. » Terry v. Brightman, 129 Mass. 2 Aldrich v. Springfield, Athol, &c. 535. K. E., 125 Mass. 404. 390 NEW TEIAL. [CH.XXX. § 18. Report of Evidence. — It is discretionary with a judge of the Supreme Judicial Court to report the evidence so as to lay the foundation for a motion for a new trial.^ § 19. New Trial as to Part. — A new trial may be granted to determine a particular point or to cor-rect a particular error in the former trial without opening the whole case.^ § 20. Trial justices and police, municipal, and district courts have no power to grant new trials.'' ' Miller K. Baker, 20 Pick. 285. Mass. 248; Warshauer ». Jones, 117 . 2 Winn V. Columbian Ins. Co., 12 Mass. 345. Pick. 279 ; Bardwell iv Conway Ins. Co., 3 Pub. St. c. l53, § 6; Taylor ». 118 Mass. 465 ; Wayland v. Ware, 109 Taunton, 113 Mass. 290. § 5. APPEALS. 891 CHAPTER XXXI. APPEALS. § 1. An appeal is a mode of removing a case from an inferior court or judge to a superior court. An appeal may be taken from the judgment of a police, municipal, or district court, and from the judgment of a trial justice to the Superior Court, and from the Superior Court and the probate courts to the Supreme Judicial Court. The rules regulating appeals are prescribed by statute. § 2. Appeal from a Trial Justice. — The statutes provide that any party aggrieved by the judgment of a trial justice in a civil action, may appeal to the Superior Court.^ § 3. Appeal from a Police, Municipal, and District Court. — It is also provided by statute that a party aggrieved by a judg- ment of a police, municipal, or district court, may appeal to the Superior Court.^ § 4. The provisions of the statutes in relation to appeals from the judgments of trial justices are made to apply to appeals from the judgments of police, municipal, and district courts ; ^ appeals from these courts and from trial justices may therefore be considered together. § 5. There must be a final judgment before there can be an appeal.* No appeal lies from interlocutory decrees or proceedings ; as, for instance, if the court should order a new indorser to be furnished, or grant an amendment, or refuse to dismiss the action, or to nonsuit the plaintiff.^ But any final disposition of the case, or sending the parties 1 Pub. St. v. 155, § 28. * Bowker v. Palmer, 2 Gray, 553. 2 Pub. St. u. 154, § 39, 43. ^ Lamphere v. Lamprey, 4 Mass. 107. 3 lb. 392 APPEALS. [CH. XXXI. out of court, will be sufficient to sustain an appeal ; as where the court arrests the judgment, and so renders none ; ^ or where an action is dismissed without costs, because the writ is lost from the files,^ or for want of an indorser. § 6. When an Appeal must be claimed. — An appeal from a police, municipal, or district court, or from a trial justice, must be claimed within twenty-four hours after the entry of the judgment appealed from.* § 7. The appellant must recognize to the adverse party with sufficient surety or sureties, to be approved by the adverse party or by the justice, in a reasonable sum to be fixed by the justice, or approved by the adverse party, with condition to enter and prosecute his appeal with effect, and to satisfy with- in thirty days of the entry thereof any judgment which may be entered against him in the Superior Court upon said ap- peal for costs.* The appellant may recognize by attorney.^ The justice or court may for sufficient reason extend the time. In determin- ing the sufficiency of the sureties upon such recognizance, the justice or court may examine upon oath the persons offered as sureties, and all other witnesses produced by either party.* § 8. When no Recognizance is required. — When an appeal is claimed, or the removal of an action is requested by the de- fendant in a proceeding before a trial justice, in which such defendant has given a bond to dissolve the attachment made in such case as provided by law (except in proceedings under chapter 175 of the Public Statutes), no recognizance or de- posit shall be required for the allowance of such appeal or removal.^ Sunday is excluded from the twenty-four hours within which an appeal must be claimed.^ § 9. When a Bond to prosecute may be given. — The Public Statutes provide that in the municipal courts of the City of Boston, instead of entering into a recognizance, the party ap- pealing in civil proceedings shall file a bond with surety or 1 Bemis v. Faxon, 2 Mass. 141. 5 Adams v. Eobinson, 1 Pick. 461. 2 Gilbieth v. Brown, 15 Mass. 178. « Pub. St. c. 15.5, § 29. 8 Pub. St. c. 155, § 29. ' Pub. St. c. 155, § 33. * lb. 8 McIniflFe v. Wbeelock, 1 Gray, 600. § 11.] APPEALS. 393 sureties to the adverse party within the same time, upon the same conditions, and with the same powers in the judge and clerk, as are provided in respect to recognizances in police and district courts. The attorney of record of the appellant may execute such bond in his behalf.^ By statute of 1882, c. 95, these provisions relating to filing a bond and its execution by the attorney of record are made to apply to the several municipal, police, and district courts of the Commonwealth. Such provisions do not, however, appear to apply to trial justices. By this statute of 1882 above referred to, the provisions of Pub. St. c. 155, § 30, appear to be repealed so far as they were made to apply to police, municipal, and district courts. The provision of Pub. St. c. 154, § 52, relating to munici- pal courts of the City of Boston is imperative that " instead of entering into a recognizance the party appealing in civil proceedings shall file a bond." The statute of 1882, c. 95, specifies that these provisions " shall appl}'^ to the several municipal, police, and district courts in the Commonwealth." They are therefore as imperative on these last-named courts as on the municipal courts of Boston. The party appealing in any of these courts must therefore recognize or give bond. Before trial justices the party appealing must recognize or de- posit money as provided in Pub. St. c. 155, § 30. § 10. When an Appeal must be entered. — An appeal from the decision of a trial justice, or of a police, municipal, or district court, to the Superior Court, must be entered at the term of the last-named court next to be held in the county where the appeal is taken.^ § 11. Papers to be filed — In an appeal from a trial justice in a civil action the appellant must produce at the court ap- pealed to a copy of the record, and of all the papers filed in the case, except that, when depositions or other written evi- dence or documents are so filed, the originals must be pro- duced in the court appealed to instead of copies ; and if the appellant fails to produce such copies or papers, or to enter 1 Pub. St. c. 154, § 52. 2 Pub. St. c. 155, § 28. 394 APPEALS. [CH. XXXI. and prosecute bis appeal, the court may, on the complaint of the adverse party, affirm the former judgment, or render such other judgment as law and justice may require.^ If the appeal is taken from adjudgment of a police, muni- cipal or district court, or when such action or proceeding is removed to the Superior Court, the clerk, or, if there is no clerk, the justice, must transmit the original writ or process and all papers connected with or filed in the case, including recognizances, and also a brief certificate of the proceedings, to the clerk of the Superior Court, and the same must there be entered in the same manner as copies are required to be entered in appeals from trial justices.^ § 12. Appeals in Other Cases. — An appeal lies to the Su- perior Court from the decision of a magistrate on charges of fraud in proceedings against a poor debtor.^ The proceedings on such appeal are prescribed by statute.* An appeal lies to the Superior Court from the decision of a court of insolvency respecting proof of claims against the insolvent,^ and upon questions of discharge,^ and from decisions of commissioners of insolvent estates of persons deceased.'' The mode of pro- cedure on the appeal in each of these cases is specifically prescribed in the chapters of the statutes referred to in the notes below. § 13. Effect of an Appeal. — From the moment when an ap- peal is properly claimed and allowed, the judgment appealed from becomes wholly inoperative, and no execution can issue upon it; nor can it be the foundation of an action of debt, or a bar to another action for the same cause, even if the appellant fail to enter or prosecute his appeal.^ If an appel- lant do not enter his appeal, the remedy of the appellee is to complain of his neglect, and pray affirmation of the judgment appealed from. The effect is the same if the appeal, when duly claimed, be not allowed. The appeal is valid; and although the court 1 Pub. St. c. 155, § 34; Kulea of Su- 6 p„b. St. c. 157, § 36. perior Court, 4, 5. 6 puj,. gt, ^ 157^ § gj 2 Pub. St. c. 154, § 40. 7 Pub. St. c. 137, § 11. 8 Pub. St. c. 162, § 50. 8 Campbell v. Howard, 5 Mass. 376. * Pub. St. c. 162, § 51. § 14.]. APPEALS. 395 below decide that it is not, and refuse to receive the recogni- zance of the party and proceed to judgment and execution, yet the court above will sustain the appeal, and take the proper measures to give it effect.^ But if an appeal be claimed in a case not authorized by law, it will be dismissed, and the judgment below remain in full force.2 The appeal in such a case is a mere nullity, even if it should be allowed ; the case remains where it was, and all .proceedings upon it in the court above are erroneous; and if in such cases the appellant fail to produce the papers and enter the appeal, the court above will not, on complaint of the appellee, affirm the decision appealed from, or allow costs. The recognizance of the appellant in the court below to prosecute is void, and he cannot suffer by not fulfilling its condition.^ If one defendant be defaulted and the other appeals, or if, in a trustee process, the principal be defaulted and the , trustee appeals, and wi'ce versa, the p'dtty appealing carries the rest with him. . § 14. If the appellant omit to enter his appeal, it does not revive or restore the judgment appealed from, for that is to all intents and purposes vacated. Even a judgment in favor of a defendant, from which the plaintiff has appealed, can never be pleaded as a bar to a new action ; and to obtain the benefit of the former proceedings, the appellee must present a complaint to the court appealed to, at the term when the appeal ought in due course to have been entered, praying that the former judgment be affirmed. Instead, however, of its being the affirmation of a former judgment, it is in fact a new judgment for the same thing.* An appeal for cause shown may be allowed to be entered after the day fixed by the rules of court, and even after com- plaint for affirmance.^ The entering of a review by one party- did not prevent an appeal by the other.® ' 1 Bemis v. Faxon, 2 Mass. 141 ; Lam- ' Campbell v. Howard, 5 Mass. 376 ; phear v. Lamprey, 4 Mass. 107. Wetherbee v. Johnson, 14 Mass. 412. 2 Commonwealth v. Messinger, 4 * Howe's Pr. 448. Mass. 462, 471. ^ Bennett v. Whitney, 1 Tyl. 59. " Hubbard v. Leonard, 1 D. Chip. 216. 396 APPEALS. [CH. XXXI. An appeal from the main question takes with it all inci- dental orders, and makes the whole in effect the subject of revision.^ § 15. How Actions appealed are tried. — All SUch actions are in general tried on the appeal, without any reference to the proceedings iu the court below. Thus the plaintiff may- move for a new indorser, or the defendant to have the action dismissed, or to plead double, or in abatement, although the same motions were overruled in the court below ; and a plea to the action, or further proceedings of any kind, will be no waiver of the objection, although no exceptions were taken in the court below.^ Where, however, one defendant is defaulted in the court below, and the other after trial appeals, it has not been con- sidered that the cause could be open for trial on appeal as to both. And in some cases an order, though erroneous, cannot be reversed where it has been executed ; thus, an order to furnish a new indorser, or to exhibit books or papers for the inspection of the adverse party, although objected to, can- not be annulled if they have been complied' with. And in partition and account, if the cause have proceeded to final judgment in the court below, on an appeal therefrom the in- terlocutory decrees cannot be re-examined.^ § 16. When an Appeal does not lie. — No appeal lies from a verdict of a jury, or the finding of a judge of the Superior Court upon a matter of fact, in the trial of a case without a jury;* or where a case is submitted to the court upon a statement of facts in connection with a deposition of the plaintiff.6 When the judgment of the Superior Court, on a case stated, involves the decision of facts or a drawing of infer- ences of fact, no appeal lies therefrom.^ § 17. As to appeals from probate courts to the Supreme Judicial Court, see ante, p. 225-228. ^ Willej V. Thompson, 9 Met, 329. - Knowles v. Bachelder, 106 Mass. ' Eathbone v. Rathbone, 4 Pick. 343. 89; Washburn «. Washburn, 10 Pick. 5 Cochrane ». Boston, 1 Allen, 480. 375. 6 Keegan v. Cox, 116 Mass. 289; » Howe's Pr. 448. West v. Piatt, 120 Mass. 421. § 20.] APPEALS. 397 § 18. As to appeals from decisions of commissioners to re- ceive and allow claims against an estate represented insol- vent, see ante, p. 229. § 19. As to appeals from a judge of insolvency in proceed- ings under the insolvent laws of the State, see ante, p. 235— 237. § 20. As to appeals from the decisions of the Superior Court to the Supreme Judicial Court in matters of law, see post, next chapter. An appeal from a decree in equity of the Superior Court may be had to the Supreme Judicial Court, and in case of such decree it is provided by statute that "the justice by whom the decree was made shall, at the request of the appel- lant, report the facts found by him as far as material, provided that such request be made within four days after the appel- lant has been notified of the entry of the decree ; otherwise the granting of such report shall be in the discretion of the justice." ^ » St of 1883, c. 223, § 6, 7. 398 QUESTIONS OF LAW. [CH. XXXU. CHAPTER XXXII. QUESTIONS OP LAW. § 1. By what Court these are decided. — ' All questions of law on exceptions, on appeals from the Superior Court, on cases stated by the parties, and on special verdicts, and all issues in law, are heard and determined by the full bench of the Supreme Judicial Court.^ § 2. How Questions of Lawr are rsiised and carried to that Court. — In the Superior Court, questions of law may be raised and carried to the full bench of the Supreme Judicial Court by appeal,^ by exceptions,^ and by report.* In the Supreme Judicial Court, questions of law arising upon the decision of a single justice of that court may be carried to the full bench for final determination by excep- tions ^ and by report,^ or may be reserved by such justice. The statutes provide that " questions of law, whether arising upon a trial or other proceeding, or upon a motion for a new trial on account of an opinion, direction, order, or refusal of a single justice in matter of law, may be reserved for the consideration of the full court, and so much of the case as is necessary for understanding the question shall be reported for that purpose." ^ In referring to a similar statute in the case of Phillips v. Soule,® Bigelow, C. J., said : " The power to reserve a case on questions of law under the statute is vested exclusively in the justice before whom the trial or other proceeding in 1 Pub. St. c. 150, § 7. 6 Pub. St. c. 150, § 7. 2 Pub. St. c. 152, § 10 ; St. of 1883, " Pub. St. c. 153, § 6. C. 223, § 6, 7. I Pub. St. c. 150, § 8. s Pub. St. c 153, § 8. 8 6 Allen, 151. 4 Pub. St. c. 153, § 6; St. of 1883, C 223, § 7. § 5.] QUESTIONS OF LAW. 399 which questions may arise takes place. It is a power resting in the exercise of a sound discretion, which the whole court will in no degree revise or control." " Nor ought it to be used unless the questions are of so grave or doubtful a nature as in the opinion of the presiding judge to require further consideration, or the case is of such a nature as to render such a mode of determining the questions of law involved in it expedient or necessary for the final dis- position of the cause." The decision of a single judge not to reserve a case is held not subject to a revision by the whole court.^ Questions of law may also be re-examined on a writ of error. See ante, p. 63-75. § 3. How Exceptions are taken. — When in the course of any trial or hearing before a justice of the Supreme Judicial Court or of the Superior Court, with or without a jury, a party is aggrieved by any opinion, ruling, direction, or judg- ment of the court, in matters of law, it is the usual practice for the party or his attorney to make a note of the ruling or decision objected to, and request the court to save the ques- tion of which the court also makes note. The rights of the party excepting are thus saved and the trial proceeds as if no exceptions had been taken. If the verdict or the decision of the court be in favor of the party taking an exception, no proceeding is had on it. § 4. Ezoeptions must be reduced to 'Writing. — If, however, the verdict or decision be against the party taking the except tion, then the exception or exceptions must be reduced to writing and filed with the clerk of the court. § 5. Notice of tbe filing of the exceptions must be given to the adverse party before the adjournment without day of the term in which the exceptions are taken, and within three days after the verdict in the case, or after the opinion, ruling, direction, or judgment excepted to is given. For good cause shown, a further time, not exceeding five days unless by con- sent of the adverse party, may be allowed by the court.^ 1 Phillips V. Soule, 6 Allen, 150; ler, 9 Allen, 166; Stnart D.Stuart, 123 Jamaica Pond Aqueduct Co. v. Chand- Mass. 370. 2 Pub. St. c. 153, § 8. 400 QXJESTIONS OF LAW. [CH. XXXII. § 6. Notice to Parties of Decision. — If an action is tried without a jury, the clerk shall notify the parties thereto when a decision is made ; and exceptions or a motion for a new trial may be filed within three days after such notice is re- ceived. But nothing herein contained shall be so construed as to prevent the court from allowing further time, as in other cases. ^ § 7. Piling of Exceptions and Duty of the Clerk. — It is the duty of the clerk immediately on the filing of the exceptions to present them to the court ; if found conformable to the truth, they will be allowed and signed by the presiding judge ; if not found to be conformable to the truth they will not be allowed.' Exceptions filed by the defendant after verdict for the plaintiff may be allowed, notwithstanding the defendant's death meanwhile, although the action does not survive, and if they are overruled, judgment may be rendered as of the day when the verdict was returned,^ although no administra- tor has been appointed.* In passing on a bill of exceptions, no statute of another State can be considered, which is not made a part of the bill of exceptions.^ The time of filing exceptions must appear of record,^ and in all cases the adverse party must have an opportunity to be heard concerning their allowance.^ The requirements in re- lation to exceptions must be strictly complied with.* § 8. Form and Signature of a Bill of Exceptions. — No par- ticular form for a bill of exceptions is prescribed. " The rules of the courts require that all exceptions shall be reduced to writing." * The only part of the bill which has a form adopted in practice is the caption which is given in note.^" A bill of exceptions should contain a statement of the facts or evidence in the case, and of the ruling of the judge, and of 1 Pub. St. t. 153, § 9. 8 Doherty v. Lincoln, 114 Mass. 362. 2 Pub. St. c. 153, § 8. » Rules of Superior Court, 36. s Kelley v. Eiley, 106 Mass. 339. lo ,. s^pEBiOR Coukt • Tapley v. Martin, 1 1 6 Mass. 275. « Hames v. Hanrahan, 105 Mass. 481. " Suffolk, ss. Teem, 188 . * Browne i>. Hale, 127 Mass. 161. "John Doe r. Richard Roe. ' Pub. St. c. 153, § 8. • "Defendant's Exceptions." § 10.] QUESTIONS OF LAW. 401 any requests for ruKngs, if any, which he declines to give, so far as the same may be necessary to present to the court clearly the question or questions of law to be decided, and should conclude in substance as follows : — The , feeling aggrieved by said (rulings, opinions, di- rection, or judgment as the case may be), excepts thereto and prays that his exceptions may be allowed. It should not set forth the whole of the judge's charge to the jury, but only the points of law raised at the trial and the rulings thereon.' A general exception to the entire charge is irregular and cannot be sustained.^ A party cannot except to an erroneous instruction, which is given to the jury at his request.^ When the law and the fact are to be passed upon by the same tribunal, it becomes important that the bill of exceptions should distinctly show what was passed upon as fact and what was ruled as law.* A bill of exceptions must be con- fined strictly to matters of law,^ and must show that the questions relied on were raised at the trial. ^ § 9. The exceptions must be restored to the files of the court within five days after the same are presented to the judge, with a certificate under his hand either allowing or disallow- ing the same, unless he finds that further time is necessary for the examination or hearing upon the same, not exceeding ten days unless for reasons rendering more delay necessary, which shall be certified by him on restoring the papers.^ § 10. Amendment of Exceptions. — After a bill of excep- tions has been allowed and has been entered in the Supreme Judicial Court, it is within the exclusive jurisdiction of that court, and cannot be altered by the court below without leave of the higher court. It may, however, be altered by the judge of the court on motion of either party and by leave of the Supreme Judicial Court.^ It cannot, however, be 1 Burt 1^. Merchants' Ins. Co., 115 ' Bamacoat v. Gunpowder, 1 Met. iss. 1. 22.5. 2 Curry v. Porter, 125 Mass. 94. « Burke v. Sarage, 13 Allen, 408. ' Dennis v. Maxfield, 10 Allen, 138. ' Pub. St. c. 153, § 10. * Manning v. Lowell, 130 Mass. 21. ' McCarren v. McNulty, 7 Gray, 139 ; Perry v. Breed, 117 Mass. 155. 26 402 QUESTIONS OF LAW. [CH. XXXII. amended by consent of parties without the consent of the judge of the court below.^ § 11. Procedure after Decision. — When the trial is by a jury, if the exceptions are sustained, the verdict is set aside, and when the trial is by a judge, if the exceptions are sus- tained, his findings of facts are set aside,^ unless it appears that the other evidence in the case would not admit of any other verdict.^ If the exceptions are overruled, judgment will be ordered on the verdict, if there be a verdict; otherwise, on the decision of the court. § 12. How to prove Exceptions. — It sometimes becomes necessary for a party taking exceptions to prove them, and then his petition must be presented to the Supreme Judicial Court. The statutes provide that, " if the justice disallows or fails to sign and return the exceptions, or alters any state- ment therein, and either party is aggrieved, the truth of the exceptions presented may be established before the Supreme Judicial Court upon petition setting forth the grievance, and thereupon, the truth thereof being established, the exceptions shall be heard, and the same proceedings had as if they had been duly signed and brought up to said court with the petition." * By statute of 1882, c. 239, the above provision is made to apply to any case in which a justice of the Supreme Judi- cial or Superior Court, from physical or mental disability or death, has failed to sign and return exceptions as therein provided. " In any case in which exceptions have been taken, but the justice has failed to sign or return the same by reason of physical or mental disability or death, the party taking the exceptions may apply to the Supreme Judicial Court at the law term holden for the county in which the case is pending, next after knowledge of such disability or death shall have come to the excepting party, for leave to establish said ex- 1 Ashley v. Eoot, 4 Allen, 504. » Wayland v. Ware, 109 Mass. 248. 2 Robinson v. Trofitter, 106 Mass. * Pub. St. c. 153, § 13. 51, 54. § 13.] QUESTIONS OF LAW. 403 ceptions ; and said court may entertain such application, and hear the exceptions when established as in cases already pro- vided for by existing statutes and by the rules of the Supreme Judicial Court." ^ The rules of the Supreme Judicial Court provide that, " whenever a party shall seek to establish before this court the truth of any allegations in a bill of exceptions, which a judge shall have refused to allow and sign, he shall, within twenty days after notice of such refusal, file his petition, veri- fied by affidavit, setting forth in full said allegations and all facts material thereto, in the court in which the exceptions would by law have been entered, if duly signed and allowed ; and shall, before filing his petition, give notice thereof to the adverse party, by delivering a copy thereof to him or his attorney of record. And no party shall be allowed to es- tablish the truth of any such allegations in this court, if he shall have failed to comply with the requisitions herein pre- scribed." ^ As to the time when the twenty days begin to run, see case of Brown v. Oilman.^ The affidavit must aver that the allegations in the petition are true.* § 13. Report. — The statutes provide that, after verdict or decision, the courts may report the case for determination by the Supreme Judicial Court.'' Exceptions allowed in a case so reported should not be stated in separate bill, but be incorporated in the report,^ and must show M'hat questions of law arose in the Superior Court and were intended to be reported.'^ Such reports are usually prepared by the counsel in the case reported, although signed by the presiding judge. The caption is in form like that given for exceptions. A judge of the Superior Court has no authority to report for the determination of the Supreme Judicial Court a case tried upon a plea in abatement.^ 1 St. of 1882, c. 239, § 1, 2. « Aldrich v. Boston & Worcester ' Rule 28. E. R., 100 Mass. 31. 8 115 Mass. 56. ' Wright v. Quirk, 105 Mass. 44. » Tuft8 V. Newton, 117 MaBS. 68. « Stackpole v. Hunt, 9 Allen, 539. 6 Pub. St. c. 153, § 6. 404 QUESTIONS OF LA.W. [CH. XXXII. § 14. Appeal from Superior Court. — The statutes provide that " a party aggrieved by a judgment founded upon matter of law apparent on the record, in any proceeding, civil or criminal, except a judgment upon an answer or plea in abate- ment or motion to dismiss for defect of form or process, may appeal therefrom to the Supreme Judicial Court." ^ Under this section no case can be brought before the Supreme Judicial Court by appeal until the action has been finally disposed of by verdict or judgment.^ Judgment for a plaintiff is not final until damages are assessed.^ The ap- peal lies only for matters apparent on the record, and until the record is fully extended the clerk's docket is the record.* As to what is matter apparent on the record, see cases referred to.® See ante, chapter on Appeals, p. 391. § 15. As to Waiver of Appeal. — The statutes provide that "an issue of law joined in the Superior Court shall not be waived by consent of parties after such appeal has been en- tered in the Supreme Judicial Court, but that the court may, for good cause, allow the parties to withdraw or amend their pleadings, and, if the same result in an issue of fact, the case shall be remanded to the Superior Court to be there tried ; but no execution shall issue upon the judgment appealed from, unless the appeal is waived, until the case is so re- manded." ^ § 16. Questions of Law in Probate Courts. — All questions of law as well as questions of fact in the Probate Court may be carried to the Supreme Judicial Court by appeal, that court having appellate jurisdiction of all matters determina- ble by the probate courts and the judges thereof, except in cases in which other provisions are specially made.^ See ante, p. 225-^228. § 17. Case Stated. — Questions of law are often carried from 1 Pub. St. u. 152, § 10. 6 Bowles v. Palmer, 2 Gray, 553 ; 2 Bennett v. Clemence, 3 Allen, 431 ; Powers u. Provident Inst, for Savings, Hogan V. Ward, 117 Mass. 67. 122 Mass. 443 ; Standish u. Old Colony ' Riley c. Famsworth, 116 Mass. 223. R. B. 129 Mass. 158. * Greenwood o. Bradford, 128 Mass. « Pnb. St. c. 152, § 10. 296. 7 Pub. St. c. 156, § 5. § 20.] QUESTIONS OF LAW. 405 the Superior Court to the Supreme Judicial Court by appeal from a judgment of court on an agreed statement of facts. In such case a statement in writing is made of all the material facts and signed by the parties or by their attorneys. Upon this statement a judgment is entered by the Superior Court I in favor of one party, and thereupon the other party appeals ' from the judgment to the Supreme Judicial Court. § 18. The statement should be a statement of facts, not of evidence. If testimony of a witness is included in it, such testimony will be taken to be true and dealt with as such.^ All the material facts should be stated. ^ The whole court will not reconsider a finding upon a mat- ter of fact of a single judge before whom a case has been tried without a jury.^ § 19. Questions of La^r before Sheriff's Jury. — As to ques- tions of law raised in trials before a sheriff's jury, see post^ chapter 43. § 20. When Exceptions or Appeal are not duly entered. — " If by mistake or accident a question arising upon an appeal, or upon exceptions in the Superior Court, is not duly entered in the Supreme Judicial Court, or if, for a like reason, a com- plaint founded on an omission to enter such question has not been entered by the adverse party, the court, upon petition filed within one year after the question or complaint should have been entered, and upon such terms as it deems just and reasonable, may allow the party taking the appeal or excep- tion to enter the question, or the adverse party to enter his complaint, as the case may be ; and when so entered, the court shall proceed therein as if it had been entered at the proper term. But no security by bond, attachment, or other- wise, discharged by the omission of either party to enter the question or complaint, shall be revived and continued in force by the entry of such question or complaint." * " If a party who has taken an appeal or an exception which has been allowed, neglects to enter the question in the I Gorham v. Stearns, 1 Met. 366. ' Jamaica Pond Aqueduct Co. v. ' Morse v. Mason, 103 Mass. 560; Chandler, 9 Allen, 159. Gregory v. Pierce, 4 Met. 480. « Pub. St. c. 150, § 17. 406 QUESTIONS OF LAW. [CH. XXXII. Supreme Judicial Court, the adverse party may enter a complaint and have the judgment, opinion, ruling, or order afl&rmed." ^ § 21. The Case is not transferred, only the Question. — Where questions of law are carried to the Supreme Judicial Court upon appeal, by bill of exceptions, reserved case, or otherwise, the case is not transferred, but only the question to he determined.^ The case remains in the Superior Court, and is continued to await the decision of the Supreme Judicial Court on the questions of law. § 22. Copies for the Hearing. — The statutes provide that " the clerk shall, at the expense of the party appealing or taking exceptions, or of the plaintiff if a case is reserved or reported, or of the Commonwealth in all criminal cases, pre- pare and transmit to the Supreme Judicial Court sitting for the proper county one copy of every paper on file in the case, except papers used in evidence only, and also one copy of all papers made part of the ease or referred to in the bill of exceptions or report, or so much thereof as necessary fully to present the question of law, for the use of the chief jus- tice, and like copies for the clerk of the Supreme Judicial Court, to be kept on file in said court ; and one copy of the bill of exceptions, or report, or papers upon which the ques- tion of law arises on appeal, for each associate justice, and a like copy for each party and the reporter of decisions. And any original papers used in the trial which are needed in the Supreme Judicial Court shall be transmitted to the clerk of said court, to be by him kept on file until the rescript in such action is sent. The expense of such copies and transmission shall be "taxed in the bill of costs of the prevailing party, if he has paid the same." ^ Such copies shall be transmitted to and entered on the law docket of the Supreme Judicial Court for the proper county, as soon as may be, and made a matter of record in the court where the action is pending.* § 23. Who to enter Question, &o. — The party taking ex- 1 Pub. St. .;. 150, § 16. 8 Pub. St. u. 152, § 15. 2 Pub. St. c. 153, § 15. .4 Pub. St. i:. 153, § 15. § 26.] QUESTIONS OF LAW. 407 ception or appealing, or the plaintiff if a case is reserved or reported, must cause to be prepared the copies required by law, and enter the question at the proper term. The copies required, and the duties of the parties and the clerk in re- lation thereto, are stated in the last two preceding sections. § 24. Order of Hearings. — The Statutes provide that "questions of law entered upon the docket of the full court shall be argued, when reached, in their order, if, either party is ready, unless the court, for good cause shown, post- pones the same. But no party shall be compelled to be ready for argument within ten days after the question has been duly reserved of record in the court where the case is pending." ^ § 25. Ex parte Hearing. — It is also provided by statute, that " the court may hear a question ex parte when it is reached in the order of the docket and only one party is ready for argument ; or, if neither party is ready, the excep- tions may be passed upon by the court without argument, or the case may be postponed when a special reason exists therefor ; but no case that has been postponed shall be again in order for argument until all the questions ready for argument have been argued, postponed, or otherwise disposed of."^ § 26. Briefs. — At or before the commencement of the argu- ment of each case upon the law docket, each party must de- liver to the other, and furnish to each of the judges and to the reporter, a printed or written statement, on paper of the usual quarto size, and signed by counsel, of the points on which he intends to rely, and the authorities intended to be cited in support of them, arranged under the respective points. And in eases where it may be necessary for the court to go into examination of evidence, each party must briefly specify, in his printed or written statement of points, the leading facts which he deems established, with a reference to the pages of the papers where the evidence of such facts may be found .^ 1 Pub. St. c. 150, § 9. 8 Rules of S. J. Court, 31. 2 Pub. St. c. 150, § 11. 408 QUESTIONS 01 LAW. [CH. XXXII. § 27. Arguments limited. — All arguments of counsel, either before the full court, before a single justice, or before the jury, are limited to two hours on each side, unless before the commencement of the argument, for good cause shown, the court shall allow further time ; and, when more than one counsel are to be heard on the same side, the time may be divided between them, as they may elect.^ § 28. Decisions and Rescript. — The statute provides that the full court shall, as soon as may be after the decision of the questions submitted to it, make such order, direction, judg- ment, or decree as is fit and proper for the further disposi- tion of the case, and enter the same, or cause a rescript containing a brief statement of the grounds and reason of the decision to be filed therein.^ The court are here authorized to make such order or direction as is fit and proper. In exercising this power while sustaining exceptions, the court may restrict the new trial to that part of the case which alone has been or could be af- fected by the error.^ The court may also, 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 afterwards remit the record to the court from which it has been removed, to carry such judgment into effect, or in- stead theiieof 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.* § 29. When Exceptions are Frivolous. — If, upon the hear- ing of a case brought before the court upon exceptions al- leged, it appears that the exceptions are frivolous, immaterial, or intended for delay, the court may award agaiust the party taking the exceptions double costs from the time when the same were alleged, and also interest from the same time, at the rate of twelve per cent a year on any sum found due 1 Rules of S. J. Court, 32. » Wayland v. Ware, 109 Mass. 248, » Pub. St. c. 150, § 12. 252. ♦ Pub. St. c. 150, § 12. § 29.] QUESTIONS OF LAW. 409 for debt or damages ; or may award any part of such ad- ditional costs and interest.^ This provision is limited to exceptions, and does not ex- tend to appeals.^ Double costs are not imposed unless moved for.^ ' Pub. St. c. 150, § 14. " Norris v. Lynch, 121 Mass. 586, 2 Ames V. Stevens, 120 Mass. 218. 588. 410 PARTITION. [CH. XXXm. CHAPTER XXXIII. PARTITION. § 1. How Partition may be made. — Persons holding lands as joint tenants, coparceners, or tenants in common, may be compelled to divide such lands either by writ of partition at the common law, or on petition for partition as provided by statute.! Partition of lands may also be made by deeds of the several joint tenant or tenants in common. The only mode intended to be considered here is that pro- vided by statute, namely, petition for partition. It is the mode now usually resorted to in this Commonwealth to ob- tain partition of estates. § 2. Who may maintain such Petition. — Such petition may be maintained by any person who has an estate in possession, but not by one who has only a remainder or reversion ; pro- vided, however, that when the whole or any part of the estate to be divided is under a lease, such partition shall not preju- dice the rights of the lessee. Such petition for partition may be maintained notwith- standing any of the tenants in common may be alone or jointly with others, trustee, attorney or guardian of any other tenant.^ A joint tenant, or tenant in common, though disseised, may maintain this process.^ § 3. Who cannot maintain such Petition. — The statutes pro- vide that, " no tenant for a term of years, unless at least twenty years of such term remain unexpired, shall maintain such petition against a tenant of the freehold ; but when two or more persons hold jointly or in common as tenants for a ' Pub. St. c. 178, § 1. » Marshall v. Crehore, 13 Met. 462. ' Pub. St. u. 178, § 3, 68, 69. § 6.] PARTITION. 411 term of years, either of them may have his share set off and divided from the others, and such partition shall continue in force only so long as their estates endure, and shall not af- fect the premises when they revert to the respective landlords or reversioners." ^ It is held that the petition will not lie when all parties interested in the land of which partition is to be made join in the petition .2 § 4. Commencement of Proceedings. — The statutes provide that " one or more of the persons so holding lands may apply by petition to the Supreme Judicial Court or Superior Court, held for the county in which the lands lie, for a partition of the same ; and said courts may cause partition to be made and the share or shares of the petitioners to be set off and assigned ; and the residue of the premises shall remain for the person or persons entitled thereto, and subject, if more than one person is so entitled, to a future partition." * § 5. The Petition, — its Indorsement and Filing. — The peti- tion for partition must set forth the rights and titles, so far as known to the petitioner, of all persons interested in the prem- ises who would be bound by the partition, whether they have an estate of inheritance for life or for years ; whether in possession, remainder, or reversion ; and whether vested or contingent; and if the petitioner holds an estate for life or years, the person entitled to the remainder or reversion shall be considered to be one of the persons so interested, and as such entitled to notice.* It must be indorsed and filed.^ It may be filed in term time or vacation, in the ofBce of the clerk of the court to which it is addressed.^ § 6. Service on Respondent. — A summons to appear and answer thereto must be signed by the clerk and served upon each of the parties named in the petition as interested in the premises, if he can be found in this Commonwealth, by deliv- 1 Pub. St. c. 178, § 4. 4 Pub. St. c. 178, § 5 ; Hazard v. Lit- 2 Swett V. Bussey, 7 Mass. 503. tie, 9 Allen, 260. s Pub. St. c. 178, § 2. 6 Pub. St. c. 178, § 6, 7. 6 Pub. St. c. 178, § 7. 412 PAKTITION. [oh. XXXIII. ering' to him or leaving at the place of his abode, fourteen days at least before the sitting of the court, a copy of the petition and summons, attested by the clerk or by the officer who serves the process.^ § 7. Alternative Service. — The petitioner may, fourteen days at least before the sitting of the court to which he intends to present his petition, without filing such petition in the clerk's office, cause the parties interested to be served with a copy thereof, attested by the officer, by delivering or leaving the same in the manner aforesaid fourteen days at least before such sitting of the court. § 8. other notices must be given to parties interested as the court may order .^ § 9. A guardian for an infant or insane person interested in the premises must be appointed by the court.* § 10. Appearance and Pleadings of Respondents. — Any per- son interested in the premises may appear and answer to the petition, and may plead or answer, either separately or jointly with any other respondents, any matter tending to show that the petitioner ought not to have partition as prayed for, either in whole or in part, and the further pleadings must be con- ducted as in actions at common law.* § 11. If a person not named in the petition appears and pleads or answers, the petitioner may reply that such person has no estate or interest in the lands, and may .pray judgment if he shall be admitted to object ; and the petitioner may in the same replication answer to such plea any other matter as he might have done if he had not disputed the respondent's right to appear ; and if upon such replication it appears that the respondent has no estate or interest in the lands, the matter of his plea or objection to the partition shall be no further inquired of.® § 12. If two or more persons appear as respondents, claiming the same share of the premises to be divided, it will not be necessary to decide on their respective claims, except for the 1 Pub. St i;. 178, § 7. * Pub. St. c. 178, § 14. 2 Pub. St. i:. 178, § 10, 11. 6 Pub. St. c. 178, § 15. 3 Pub. St. t. 178, § 12. § 15.] PAETITION. 413 purpose of determining which will be admitted to appear in the suit ; and if partition is made, the share so claimed will be left for whichever of the parties proves, in a suit to be thereafter brought between themselves, to be entitled to it.^ If in such case it is decided in the suit for partition that either of the respondents is not entitled to the share that he claims, he will be concluded by the judgment so far as it re- spects the partition and the assignment of the shares, but may bring an action against the other claimant in the manner provided in sections thirty-nine and forty. ^ § 13. 'Removal of Case to Supreme Judicial Court. — When the petition is commenced in the Superior Court, any re- spondent may at the first term of his appearance, by making affidavit substantially as required for the removal of actions at law, remove such petition to the Supreme Judicial Court.^ § 14. Judgment. — If upon the trial of an issue it appears that the petitioner is entitled to have partition as prayed for, he will recover his costs of such trial against the party who objected to such partition, and shall have execution therefor. If such issue is found or decided against him in whole or in part, the adverse party will recover against him the costs of the trial and shall have execution therefor ; but judgment may, notwithstanding, be rendered for the petitioner to have partition, and to have assigned to him such part of the premi- ses, if any, as he appears to be entitled to. If it appears that the petitioner is entitled to have partition, whether for the share or proportion claimed in his petition or for any less share, the court will award the interlocutory judgment that partition be made. § 15. Commissioners to make Partition. — The court will appoint three or five disinterested persons as commissioners to make the partition and to set off to the petitioner the share or shares belonging to him, which share or shares shall be ex- pressed in the warrant. The commissioners, before proceeding to the execution of their duties, must be sworn faithfully and impartially to exe- 1 Pub. St. i;. 178, § 16. 8 Pub. St. c. 178, § 13. 2 Pub. St. c. 178, § 17. 414 PARTITION. [CH. XXXIH cute the same, a certificate of which oath shall be made on the warrant by the person who administers it. § 16. They must give sufficient notice of the time and place appointed for making the partition to all persons interested therein who are known and within the Commonwealth, that they may be present at the making thereof.^ All must meet for the performance of any of their duties, but the acts of a majority shall be valid.^ § 17. They must make a return of their doings under their hands, together with their warrant. If their report is con- firmed, judgment will be rendered that the partition be firm and effectual forever.^ If there are several petitioners, they may, at their election, have their shares set off together or in severalty.* § 18. When the premises consist of a mill or other tenement which cannot be divided without damage to the owners, or when any specific part of the estate is of greater value than either party's share and cannot be divided without damage to the owners, the whole estate, or the part thereof so incapable of division, may be set off to any one of the parties who will accept it, he paying to any one or more of the others such sums of money as the commissioners may award to make the partition just and equal ; or the commissioners may assign the exclusive occupancy and enjoyment of the whole, or of the part, to each of the parties alternately for certain specified times in proportion to their respective interests.^ This statute confers upon the commissioners full power to determine whether the estate can be divided without damage to the owners, and if not, to which of the owners it shall be assigned, paying such sums by way of owelty as may be fixed by the commissioners.® § 19. Partition of Several Parcels of Land. — On a petition for partition of an estate consisting of several parcels of land, the commissioners are not obliged to set off to each co-tenant a portion of every parcel, but are authorized to assign to one 1 Pub. St. c. 178, § 8, 9. 4 Pub. St. c. 178, § 25. 2 Pub. St. c. 178, § 23. 6 Pub. St. c. 178, § 26. » Pub. St. c. 178, § 25. 6 King v. Reed, 11 Gray, 490, 491. § 23.] PARTITION. 415 or more or all an entire parcel, each according to the situation and circumstances of the estate.^ § 20. When the Interlocutory Judgment is not Necessary. — When the parties interested agree to certain commissioners to make the partition, there is no need of the interlocutory judg- ment that partition be made.^ And after the warrant to the commissioners has issued on the petition, it is too late to object to the existence or validity of the respondent's title to some interest in the land.^ § 21. Division of "Water Rights. — Persons who are inter- ested as joint tenants, tenants in common, or otherwise, in a mill privilege, water-right, or other incorporeal hereditament, may be compelled to divide the same, either by suit in equity in the Supreme Judicial Court, or in the manner hereinbefore provided for the division of land. In the latter case the commissioners appointed to make partition must set forth in their return the best method of setting off to the several parties their respective shares or interests, and thereupon the court may require the parties interested to perform such acts as justice and equity may require, and may make all such orders and decrees in the premises, according to the course of proceedings in equity, as maj' be necessary to do justice be- tween the parties. Partition may also be made of the water of a natural stream, not navigable, the banks of which are owned by different riparian proprietors.* § 22. When Respondent may recover for Improvements. — In certain cases particularly described in the Public Statutes, c. 178, §§ 31, 32, it is there provided that the respondent shall recover for improvements made by him on the premises to be divided, making due allowance for rents, profits, and other damages for which he is chargeable, and that the peti- tioner shall not have judgment for partition until he pays to such respondent the sum he may so recover. § 23. Appeal. — Either party may appeal from a judgment of a Superior Court upon a report of commissioners in any 1 Hagar v. Wiswall, 10 Pick. 152. » Brown v. Bulkley, 11 Cnsh. 168. 2 Symonds v. Kimball, 3 Mass. 299. " Pub. St. c. 178, § 76, 77. 416 PARTITION. [CH. XXXIII. matter of law apparent upon the record to the Supreme Judi- cial Court ; but upon an appeal from the judgment upon the report of commissioners, the interlocutory judgment awarding that partition be made will not be drawn in question.^ § 24. Costs and Expenses. — The statutes provide that " the expenses and charges of the commissioners shall be ascer- tained and allowed by the court ; the other costs shall be taxed in the usual manner ; and the whole shall be paid in such manner as the court may direct, except the costs of a trial of issues. When there is more than one petitioner, the whole costs and charges payable by the petitioners shall be paid in proportion to the shares or interests they respectively hold in the premises." " "When the petitioner is opposed by any respondent there- in named, and it appears that the petitioner is entitled to have partition as prayed for, he shall recover against the opposing party costs from and after the filing of the plea or answer, to be taxed as in other civil actions." ^ The costs to be taxed are limited to the costs accruing between the filing of the answer and the rendering of the verdict.^ § 25. Probate courts have concurrent jurisdiction with the Supreme Judicial Court and Superior Court of petitions for partition of lands held bj' joint tenants, coparceners, or ten- ants in common, in cases where the shares or proportions do not appear to be in dispute or uncertain.* When it appears that the shares are in dispute or uncertain, the court may order the case to be removed to the Superior Court, and it must be so removed at the request of either party.^ § 26. Partition in a Probate Court in such cases is made in the same manner as is provided in the case of a partition of the estate of a deceased person among his heirs or devisees,^ which is in the manner following. § 27. Partition of Estates of Deceased Persons. — The Pro- 1 Pub. St. c. 178, § 33. < Pnb. St. u. 178, § 45. 5 Pub. St. c. 178, § 29, 30. 6 Pnb. St. c. 178, § 46. « Powell V. Jenny, ll Allen, 104. « Pub. St. c. 178, § 47. § 31.] PARTITION. 417 bate Court in which the estate of a deceased person has been settled, or is in a course of settlement, may upon petition of any of the -parties interested make partition of all the real estate of such deceased person, lying within the Common- wealth, among his heirs or devisees, and all persons holding under them by conveyance or otherwise, in the manner and under the restrictions hereinafter provided.^ § ,28. The partition must be made by three or five disinter- ested persons, to be appointed as commissioners for that purpose by the court. Such commissioners shall, before proceeding to the execution of their duties, be sworn faith- fully and impartially to execute the same, and shall pro- ceed therein in the manner before prescribed with regard to commissioners appointed by the courts of law, except as otherwise provided in the statutes.^ § 29. Notice and Proceedings. — Specific directions are given by statute as to the notice to be given to parties in- terested, the appointment of an absent heir, or guardian for an infant, and the rules which must govern the commission- ers in making the partition.^ § 30. The expenses and charges incurred in such proceedings must be ascertained and allowed by the court, and paid by all the parties interested in the partition in proportion to their respective shares or interests in the premises. If any one neglects to pay his part, an execution therefor may be issued against him.* § 31. 'When such Partition cannot be made. — No partition can be made by the Probate Court Avhen the shares or pro- portions of the respective parties are in dispute between them, or appear to the court to be uncertain by reason of depending upon the construction or effect of a devise or con- veyance, or upon other questions that the court deems proper for the consideration of a court of common law and of a jury.s 1 Pub. St. c. 178, § 48. * Pnb. St. c. 178, § 58. 2 Pub. St. c. 178, § 49. 6 Pub. St. c. 178, § 59. » Pub. St. c. 178, § 51-57 ; St. 1882, c. 55. 27 418 PARTITION. [CH. XXXIII. § 32. Proceedings may be had on Petition of any one of the Parties. — It is the duty of the Probate Court to make such partition of the real estate of a deceased person among his heirs or devisees -and persons holding under them, upon the petition of one of them, if there is no real uncertainty as to their respective shares or proportions, although one of the parties may insist that there is a dispute or controversy con- cerning them. The judge must of necessity determine in the first instance, whether, upon the facts shown, he can take and retain jurisdiction of the case. On this question of jurisdic- tion, however, his decision is not final. An appeal from it may be taken to the Supreme Judicial Court.^ § 33. The Court which first takes Jurisdiction holds it, — When proceedings for partition are lawfully commenced in either court, the court in which they are commenced can re- tain jurisdiction of the case, saving the right of appeal in all cases when allowed by law.^ § 34. Return of Commissioners may be set aside. — " In all cases of partition, the court may for any sufScient reason set aside the return and commit the case anew to the same or to other commissioners, whereupon the same proceedings may be had as before." ^ § 85. 'When accepted, the return must remain in the office of the clerk of the courts, or in the registry of probate, as the case may be ; and a copy of the return, certified by the clerk or register, shall be recorded in the registry of deeds for the county or district where the land lies.* 1 Dearborn v. Preston, 7 Allen, 192, « Pub. St. c. 178, § 74. 193. * Pub. St. c. 178, § 75. 2 Pub. St. c. 178, § 64 ; Potter v. Hazard, 11 Allen, 187. 3.] LIENS AND PBOCESS TO ENFORCE THEM. 419 CHAPTER XXXIV. LIENS AND PEOCESS TO ENFORCE THEM. § 1. Iiiens on Iiand and Buildings. — The statutes provide that " any person to whom a debt is due for labor performed or furnished, or for materials furnished and actually used in the erection, alteration, or repair of a building or structure upon real estate, by virtue of an agreement with or by con- sent of the owner of such building or structure or of any person having authority from or rightfully acting for such owner in procuring or furnishing such labor or materials, shall have a lien upon such building or structure and upon the in- terest of the owner thereof in the lot of land upon which the same is situated, to secure the payment of the debt so due to him and of the costs which may arise in enforcing such lien," ^ except otherwise provided in the statutes. § 2. When Claimants may join. — When two or more per- sons have performed such labor or furnished materials for such purpose for their common benefit and account, their petition to enforce a lien should be joint, and if one of them dies the petition may be prosecuted by the survivor or sur- vivors.^ The lien is waived by taking a note in payment of the account.^ No lien exists for labor performed or furnished in the re- moval of a building.* § 3. "W^hen the agreement is for labor performed or furnished, and for materials furnished upon an entire contract and for an entire price, a lien for the labor alone may be enforced, if it can be distinctly shown what such labor was worth, but in no 1 Pub. St. c. 191, § 1. » Green ». Fox, 7 Allen, 85. 2 Bockwood V. Walcott, 3 Allen, 458. * Trask v. Searle, 121 Mass. 229. 420 LIENS AND PEOCESS TO ENFORCE THEM. [CH. XXXIV. case can such lien be enforced for a sum greater than the price agreed upon for the entire contract." ^ § 4. Notice of a Lien. — No lien will attach for materials furnished unless the person furnishing the same before so do- ing gives notice in writing to the owner of the property to be affected by the lien, if such owner is not the purchaser of such materials, that he intends to claim such lien.^ § 5. Notice to prevent Lien. — " The owner of a building or structure in process of erection or of being altered or re- paired, if he is a person other than the party by whom or in whose behalf a contract for labor and materials has been made, may prevent the attaching of a lien for labor not at the time performed, or for materials not then furnished, by giving notice in writing to the person performing or furnish- ing such labor, or furnishing such materials, that he will not be responsible therefor." ^ Orally forbidding the mechanic to do further labor will not prevent the attachment of the lien.* § 6. statement of Account to be Filed. — The statute pro- vides that " the lien shall be dissolved unless the person desiring to avail himself thereof, within thirty days after he ceases to labor on or to furnish labor or materials for the building or structure, files in the registry of deeds for the county or district in which the same is situated a statement of a just and true account of the amount due him, with all just credits, given ; a description of the property intended to be covered by the lien, sufficiently accurate for identification ; and the name of the owner or owners of such property, if known. If a lien is claimed only for labor performed or fur- nished under an entire contract which includes both labor and materials at an entire price, the contract price, the num- ber of days of labor performed or furnished, and the value of the same, shall also be stated. The statement shall be sub- scribed and sworn to by the person claiming the lien, or by some one in his behalf." ^ 1 Pub. St. c. 191, § 2. 4 Shaw v. Thompson, 105 Mass. 345, 2 Pub. St. c. 191, § 3. 350. 8 Pub. St. c. 191, § 4. S Pub. St. c. 191, § 6. § 8.] LIENS AND PEOOESS TOENFOECE THEM. 421 § 7. Inaccuracy of Statement. — It is also provided by stat- ute that " the validity of the lien shall not be affected by any inaccuracy in the statement relating to the property to be covered by it, if such property can be reasonably recognized from the description, nor by any inaccuracy in stating the amount due for labor or materials, unless it appears that the person filing the statement has vrilfully and knowingly claimed more than is his due." ^ If the name of the owner of the property is known to the party filing the statement, a mistake in the name will be fatal to the validity of the lien.'' It is not necessary that the statement should contain an averment that it is " a just and true account." It is sufficient if the certificate in fact contains a just and true statement of the account, not wilfully or knowingly inaccurate.* § 8. The following is the form of the statement in general use, and of the oath of the claimant thereto : — Commonwealth op Massachusetts. I, A. B., hereby certify that the following is a just and true account, with all just credits given, of the amount due to me for [here insert "labor performed, or materials furnished and actually used] in the [here insert " erection," " altera- tion," or " repair "] of a building situated on a, lot of land in in said Com- monwealth, which lot is described as follows: [here insert a description of the lot] said lot of land being owned, to the best of my knowledge and belief by ACCOUNT. /> ■ To And I further certify that I ceased to [here insert " perform labor on," " furnish labor for," or " furnish materials for,"] said building on the day of 18 , and that said [here insert "labor was performed," or "materials were fur- nished and actually used," &c.,] by virtue of an agreement with, &c., &c. ; and I hereby claim a lien upon said building, and upon the interest of the owner there- 1 Pub. St. c. 191, § 8. ' Gilbert v. Fowler, 116 Mass. 375- 2 Kelly V. Laws, 109 Mass. 395. 377. 422 LIENS AND PROCESS TO ENFORCE THEM. [CH. XXXIT. of in the lot of land upon which the same is situated, to secure the payment of the debt due to me as aforesaid, and the costs which may arise in enforcing said lien. A. B. ss. 187 . Then personally appeared the above named A. B., and made oath that the foregoing certificate by him subscribed is true, before me. Justice of the Peace. As to the time when the statement should be filed, see cases referred to in note.^ § 9. The Statute must be strictly complied with. — The lien depends wholly upon the provisions of the statute. A failure to comply with its requirements will destroy the right of the petitioner to enforce his lien. His right can be established only by a substantial compliance with the terms of the stat- ute.^ But an inaccuracy in stating the items called for will not invalidate the proceedings unless the petitioner know- ingly and wilfully claims more than is due.^ § 10. Commencement of Suit. — When the petition to en- force a lien is inserted in a writ, the making of the writ is held to be the commencement of the suit.* § 11. " If the creditor dies without having commenced such a suit, it may be commenced and prosecuted by his executor or administrator ; or if he dies after having commenced a suit, it may be prosecuted by his executor or administrator as it might have been by the deceased if living." ^ § 12. The lien may be enforced by petition to the Superior Court in the county where the building or structure is sit- uated. The petition may be filed in term time, or in the clerk's office in vacation. The date of the filing is the com- mencement of the suit. The petition may be inserted in a writ of original summons, and be served, returned, and entered as in other civil cases.^ " Whether filed as a petition or inserted in a summons, the ' Miller K.Batchelder, 117 Mass. 179, 2 Gogin v. Walsh, 124 Mass. 516, 181 ; Turner v. Wentworth, 119 Mass. 517. 459-464; Getchell o. Moran, 124 Mass. ^ Smith v. Norris, 120 Mass. 58. 404,408; Gale v. Blaikie, 129 Mass. * SpoiTord w. Huse, 9 Allen, 575. 206 ; "Wood v. Simons, 110 Mass. 110, » Pub. St. u. 191, § 38. 116. 6 Pub. St. c. 191, § 10-12. § 15.] LIENS AND PROCESS TO ENFORCE THEM. 423 petition shall contain a brief statement of the contract on which it is founded and of the amount due thereon, with a description of the premises subject to the lien and all other material facts and circumstances, and shall pray that the premises may be sold and the proceeds of the sale applied to the discharge of the demand." All the regulations concerning the indorsement of original writs shall apply to the indorsement of petitions filed under this chapter.! § 13. When in District and Other Courts. — "When the amount of the claim does not exceed three hundred dollars, the lien may be enforced by petition to a police, district, or municipal court, or trial justice ; and such courts and justices shall have like power and authority within their jurisdiction as are conferred by this chapter upon the Superior Court, and the parties shall have like rights of appeal as exist in other civil cases." ^ § 14. Several claimants may join in the same petition.^ No- tice must be given as provided in the statutes.* § 15. Procedure on Petition. — The owner of the property may contest the claims of every creditor, and the court may hear and determine all such claims in a summary manner, either with or without a jury, as the case may require.^ The court may at any time allow either party to amend his plead- ings as in actions at law.^ In the proceedings on the petition of a creditor to enforce his lien, every creditor having a lien on the same property may appear and prove his claims.^ The court will determine the amount of the lien of each creditor,^ and order a sale of the whole or a part of the property on which the liens are established,^ and a distribution of the proceeds to and among the several creditors to the amount of their respective debts,!" and the surplus, if any, to be paid to the owner of the prop- erty, unless it had been previously attached or taken on 1 Pub. St. c. 191, § 13, 14. « Pub. St. c. 191, § 20. 2 Pub. St. c. 191, § 11. ' Pub. St. c. 191, § 19. 8 Pub. St. >;. 191, § 15. " Pub. St. c. 191, § 22-24. * Pub. St. u. 191, § 16, 17. " Pub. St. c. 191, § 25-27. 5 Pub. St. t. 191, § 18, 19. W Pub. St. c. 191, § 28, 29. 424 LIENS AND PROCESS TO ENFORCE THEM. [CH. XXXIV. execution,^ in which last named case it will be applied to satisfy the execution of the attaching creditor.^ Interest maybe added to the claims proved, though not claimed in the statement or petition.^ § 16. Order in which Liens will be paid. — If an £lttachiuent is made after the filing of a statement, and if after the attach- ment another statement is filed, the creditor in the latter statement will be entitled to be paid only out of the residue of the proceeds remaining after paying all that is due on the demand, a statement of which was filed before the attach- ment, and after satisfying the attaching creditor. When there are several attaching creditors, they will as be- tween themselves be entitled to be paid according to the order of their attachments, but when several creditors who are en- titled to mechanics' lien have equal rights as between them- selves, and the fund is insufficient to pay them in full, they will share the fund equally in proportion to their respective debts.* § 17. When the Suit is Premature. — "If the suit is com- menced by the petitioning creditor before his right of action accrues, his claim may nevertheless be allowed, if the suit is carried on by any other creditor as provided in the preceding section ; but he will not in such case be entitled to costs, and he may be required to pay the costs incurred by the debtor, or a part thereof, as the court may deem reasonable." ^ § 18. The costs are in all other respects subject to the dis- cretion of the court, .and will be paid from the proceeds of the sale, or by any of the parties in the suit, as justice and equity require.® § 19. other liens may be enforced by petition to a police, district, or municipal court, or to a trial justice in the county where the petitioner resides.^ The proceedings in such cases are prescribed by statute. Either party may appeal, and the prevailing party is entitled 1 Pub. St. c. 191, § 30. 6 pnb. St. c. 191, § 40. 2 Pub. St. c. 191, § 33. 6 Pub. St. c. 191, § 41. » Jobnson v. Boudry, 116 Mass. 196. ' Pub. St. c. 192, § 24-28. * Pub. St. c. 191, § 34, 35. § 21.] LIENS AND PROCESS TO ENFOECE THEM. 425 to his costs.^ The jurisdiction of such court or trial justice is not limited by the amount of the claim or by the value of property .2 § 20. Liens on a vessel for labor performed or materials furnished on account of such vessel may be enforced by petition to the Superior Court.^ § 21. The petition to enforce such lien may be entered in court or filed in the clerk's office in vacation, or may be in- serted i:i a writ of original summons, with an order of attach- ment, and served, returned and entered like other civil actions. It must contain a brief statement of the labor, ma- terials or work done or furnished, and all other material facts and circumstances, and pray that the vessel may be sold and the proceeds of the sale applied to the discharge of the demand.* Any number of persons having such liens may join in a petition to enforce the same.* 1 Pub. St. c. 192, § 29, 30. * Pub. St. c. 192, § 18. ^ Busfield V. Wheeler, 14 Allen, 139. ' Pub. St. c. 192, § 19. s Pub. St. c. 192, § 14-17. 426 DIVOROK [CH. XXXV. CHAPTER XXXV. DIVORCE. § 1. Jurisdiction. — The Supreme Judicial Court has exclu- sive jurisdiction of petitions for divorce and nullity of mar- riage.^ § 2. Causes for Divorce. — A divorce " may be decreed for adultery, impotency, extreme cruelty, utter desertion contin- ued for three consecutive years next prior to the filing of the libel, gross and confirmed habits of intoxication, cruel and abu- sive treatment, or, on the libel of the wife, when the husband, being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable maintenance for her." Also, " when either party has separated from the other with- out his or her consent and has united with a religious sect or society that professes to believe the relation of husband and wife void or unlawful, and has continued united with such sect or society for three years, refusing during that term to cohabit with the other party ; or when either party has been sentenced to confinement at hard labor for life or for five years or more in the State prison or in a jail or house of cor- rection." ^ § 3. Decrees of Divorce to be Nisi in the First Instance. — The statutes provide that " all decrees of divorce shall in the first instance be decrees nisi, to become absolute after the ex- piration of six months from the entry thereof, without further notice thereof hj publication or otherwise, on application of either party to the court, or any justice thereof, in term time or vacation ; and on such application the court or justice shall make a final decree, unless the court has for sufiicient cause, on application of any party interested, otherwise ordered." ^ 1 Pub. St. c. 150, § 5. 8 St. of 1882, v;. 223. 2 Pab. St. u. 146, § 1, 2. § 6,] DIVORCE. 427 § 4. Custody and Maintenance of Minor Children. — "Upon a decree of divorce, or upon petition at any time after such decree, the court may make such decree as it may deem ex- pedient concerning the care, custody, and maintenance of the minor children of the parties, and may determine v^ith which of the parents the children or any of them shall remain ; and the court may afterwards from time to time, on the petition of either of the parents, revise and alter such decree or make a new decree, as the circumstances of the parents and the benefit of the children may require." ^ " The court may make orders as to the custody and mainte- nance of the infant children of divorced parents and their removal from the State as provided by statute." ^ "In all proceedings for divorce and for the custody of minor children, interlocutory orders may be passed by a sin- gle judge in -dnj county, either in term time or vacation." ^ § 5. Form and Requisites of a Libel. — A libel for a divorce is in form a petition. It must be addressed to the Supreme Judicial Court; must allege that the parties were lawfully married to one another, and the date and place of their mar- riage ; that they have lived together as husband and wife in the State, and thei time and place of such residence. It must allege clearly and definitely the cause or causes for the di- vorce, and conclude with a prayer that the bonds of matri- mony between said parties may be dissolved and for further and other relief. " When a libel is brought by a wife against her husband, if she desires a decree for alimony, or for leave to resume her maiden name, or for the custody of her minor children, or that all the personal property which her husband received by reason of his marriage with her may be assigned to her for her own use, or any other special matter, a prayer for such matter should be inserted in the libel." § 6. " It must be signed by the libellant, if of sound mind and of legal age to consent to marriage ; otherwise it may be signed by the guardian of the libellant or by a person admit- 1 Pub. St. n. 146, § 29. » Pub. St. c. 146, § 35. 2 Pub. St. c. 146, § 31, 32. 428 DIVORCE. [CH. XXXV. ted by the court to prosecute tlie libel as his or her next friend." ^ If signed only by the attorney of the libellant, though specially empowered to sign it, it cannot be sustained if the libellant was of sound mind.^ § 7. Venue of Libel. — The suit must be heard and deter^ mined in the county in which one of the parties lives, except that, when the libellant has left the county in which the par- ties have lived together, the adverse party stiU living therein, the libel shall be heard and determined in the court held for that county.^ § 8. Entry of Libel and Notice. — It may be presented to the Supreme Judicial Court or to a justice thereof in any county, in term time or vacation, or it may be filed in the office of the clerk of said court in vacation.* Notice to the adverse party must be given as required by statute or ordered by the court.® § 9. 'When Property may be attached. — " Upon a libel by a wife for a divorce for a cause accruing after marriage, an attachment to secure a suitable support and maintenance to her and to such children as may be committed to her care and custody may be made upon the husband's real and per- sonal estate by the officer serving the libel." ® The attacliment may be made upon the summons or order of notice issued on the libel, by common attachment or by trustee process, and the amount for which attachment is to be made must be expressed in the summons or order of notice.' § 10. Proceedings on Libel. ^ The Public Statutes, c. 146, § 33, relating to divorce, provides that the Supreme Judicial Court may in all cases where the course of proceeding is not specially prescribed, hear and determine all matters coming within the purview of that chapter according to the course of proceeding in ecclesiastical courts and in courts of equity, 1 Pub. St. c. 146, § 7. 6 Pnb. St. c. 146, § 9, 10. ^ Gould t). Gould, 1 Met. 382. « Pub. St. c. 146, § 11. 8 Pub. St. c. 146, § 6. ' Pub. St. c. 146, § 12. * Pub. St. c. 146, § 8. § 13.] DivoKCB. ' 429 and may issue process of attachment and of execution and all other proper and necessary processes. § 11. Exceptions at Hearing. — When a libel is heard before a single judge, either party may take exceptions in the same manner and with the same effect as in a suit at law.^ But no appeal lies to the full court in matters of fact.^ In all proceedings for divorce and for the custody of minor children, interlocutory orders may be passed by a single judge in any county, either in term time or vacation, and upon a divorce, or upon petition at any time after a divorce, the Supreme Judicial Court may decree alimony to the wife, or a part of her estate, in the nature of alimony, to the hus- band.^ § 12. Alimony. — The court may enforce decrees made for allowance, for alimony, or for allowance in the nature of alimony, pending libels, or upon or after final decrees of divorce, in the same manner as decrees are enforced in equity, and when alimony or other annual allowance is decreed for the wife or children, the court may require sufficient security to be given for its payment according to the terms of the decree.* § 13. Hearing of Libel. — If the libelee appears, the case will be set down for hearing by the court as a contested case. If the libelee does not appear, the libellant will, after his or her default, be heard ex parte. Before entering a default of the libelee in such case, the court will require positive proof that the order of notice upon the libel has been served on the libelee, as required in the order. At the hearing on the libel the allegations in the libel must be proved to the satisfaction of the presiding judge, and these allegations must state a legal cause for the divorce prayed for. A divorce will not be granted unless a legal marriage is proved,^ when the marriage is denied.^ 1 Pub. St. c. 146, § 34. * Pub. St. c. 146, § 37, 38. ^ Sparhaivk v. Sparhawk, 120 Mass. 5 Mangne v. Mangue, 1 Mass. 240. 390. 6 HiU V. HiU, 2 Mass. 150. 8 Pub. St. c. 146, § 35, 36. 430 DIVOBCE. [CH. XXXV. § 14. Trial by Jury in Divorce Cases. — Previous to 1855 no law existed in this Commonwealth giving to parties a right to a jury in the trial of a libel for divorce. In that year by statute,^ it was provided that either party to a libel for divorce might have a trial by jury by complying with the provisions of the statute in relation thereto. The same provision sub- stantially was re-enacted by the General Statutes of 1860.^ In 1877 this provision was repealed.^ There is now no law in this State giving to parties a right to a trial by jury in a case of a libel for divorce. Have the court power to allow a trial by jury in such case, or of any matters material to the issue ? In the case of Carter v. Carter,* Gray, C. J., says : " Our divorce act ex- pressly authorizes this court in all cases where the course of proceeding is not specially prescribed to hear and determine all matters coming within its purview according to the course of proceeding in ecclesiastical courts and courts of equity, and to issue all proper and necessary processes." " When the jurisdiction in divorce is vested in the court of chancery, the ordinary course of proceeding is to refer the question of alimony to a master." It is also provided by statute that " the 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, at the bar of the Su- preme Judicial Court, or the Superior Court." ^ The provisions of the statute seem to give the same power to the court in case of a libel for divorce, as in a suit in equity, and consequently empowers the court to fi-ame issues of fact to be tried by a jury in case of a libel for divorce. In either case the parties have no absolute right to a trial by jury. Either party may apply for a jury, but the appli- cation is to the discretion of the court. The court in the exercise of its discretion will not order a trial by jury, unless 1 St. of 1855, § 2-5. < 109 Mass. 306, 309. 2 Gen. St. c. 107, § 15. 5 Pub. St. c. 151, § 27. 8 St. of 1877, t. 178, § 4. § 19.] DIVOECE. 431 it is satisfied that the issue is one which can be more satis- factorily tried by a jury than by the court.^ § 15. The parties are competent witnesses in the trial, but the judges have usually declined to grant a divorce on the uncorroborated testimony of the libellant, when other evi- dence could be had. This, however, is a general rule of practice, not an inflexible rule of law.2 § 16. The court may allow amendments to libels, and may order the libellant to file specifications of facts. It is dis- cretionary with the court to allow or refuse an amendment of a libel during the trial,^ or to order further specification of the alleged criminal acts on a libel for the cause of adultery.* § 17. Payment of Money into Court by the Husband. — " The court may require the husband to pay into court, for the use of the wife during the pendency of the libel, such sum of money, although exceeding the taxable costs, as may enable her to maintain or defend the libel ; " * but such amount is not to exceed a reasonable amount for the compensation of counsel and other expenses, without regard to the amount which might properly be charged as between counsel and client by the counsel actually employed.^ The wife shall also, when it appears to be just and equi- table, be entitled to alimony during the pendency of the libel.^ § 18. No Restraint on Personal Liberty. — The COUrt sitting in any county may, on the petition of the wife, prohibit the husband from imposin* any restraint on her personal liberty during the pendency of the libel. ^ § 19. Care and Custody of Children. — The court may, on the application of either party, make such order concerning the care and custody of the minor children of the parties dur- ing the pendency of the libel as shall be deemed expedient and for the benefit of the children.^ 1 Ross V. New England Ins. Co., 120 » Pnb. St. c. 146, § 15. Mass. U3-U7. ^ Baldwin v. Baldwin, 6 Gray, 341. 2 Bobbins v. Robbins, 100 Mass. 150. ' Pub. St. t. 146, § 15. « Ford I'. Ford, 104 Mass. 198. « Pub. St. c. 146, § 16. 4 Harrington v. Harrington, 107 » put,. gj, j.. 145^ § 17. Mass. 329. 432 DIVORCE. [CH. XXXV. § 20. Leave to resume Maiden Name. — The court, upon granting a divorce to a woman, may allow her to resume her maiden name or the name of any former husband.^ When such change of name is desired, a prayer therefor should be inserted in the libel. If not inserted in the libel a motion therefor should be filed. § 21. Alimony. — " Upon a divorce, or upon petition at any time after a divorce, the Supreme Judicial Court may decree alimony to the wife, or a part of her estate, in the nature of alimony, to the husband, and may enforce decrees made for allowance for alimony, or for allowance in the nature of alimony, pending libels, or upon or after final decrees of di- vorce, in the same manner as decrees are enforced in equity. " When alimony or other annual allowance is decreed for the wife or children, the court may require sufficient security to be given for its payment according to the terms of the decree." ^ § 22. How Payment of Alimony is enforced. — A decree for alimony made by the Supreme Judicial Court can be enforced only by that court and cannot be enforced by an -action on the decree in the Superior Court.^ The court will not issue an execution for alimony without an affidavit that it is still unpaid and notice to the respondent.* It is, however, within the discretion of the presiding judge, and the failure to give notice does not invalidate the execution.^ A decree for alimony may be enforced by scire facias, or by process for contempt.^ § 23. Decrees as to Alimony may be revised. — After a de- cree for alimony or other annual allowance for the wife or children, and also after a decree for the appointment of trus- tees to receive and hold property in trust for the use of the wife or children as before provided, the court may, from time to time, on the petition of either party, revise and alter its decree respecting the amount of such alimony or other annual 1 Pub. St. c. 146, § 21. * Newcomb v. Kewcomb, 12 Gray, 2 Pub. St. c. 146, § 36, 37, 38. 28. ' Allen t). Allen, 100 Mass. 373 j Bur- « Chase .v. Chase, 105 Mass. 385, roughs V. Purple, 107 Mass. 428. 386. ° Slade V. Slade, 106 Mass. 499. § 25.] DIVORCE. 433 allowance and respecting the payment thereof, and also re- specting the appropriation and payment of the principal and income of the property so held in trust, and may make any decree respecting said matters which it might have made in the original suit.^ § 24. Costa. — Upon petitions for alimony, and upon peti- tions to revise and alter a decree under this chapter, the court may award costs to either party as justice and equity may require.^ In libels for divorce when no provision is expressly made by law, the costs are wholly in the discretion of the court, but no greater sum can lawfully be taxed than is allowed for similar charges in suits at common law.^ § 25. AVrit of Ne Exeat Regno. — As to the use of this writ, in divorce cases, see ante, chapter on Judicial Writs, p. 199. 1 Put. St. i;. 146, § 38. 8 Pub. St. c. 198, § 17. 2 Pub. St. c. 146, § 39. 28 434 BASTA-KDY PROCESS. [CH. XXXVI. CHAPTER XXXVI. BASTAEDT PEOCBSS. § 1. A prosecution in a bastardy case is instituted by a com- plaint and warrant. It is in the form of a criminal prosecu- tion, but is in substance and effect a civil suit.^ § 2. The complaint may be made by a woman who has been delivered of a bastard child, or is pregnant with a child which if born alive may be a bastard, against the person whom she accuses of being the father of the child. As to what other parties may make it, see post, p. 438. It must be made to a police, district, or municipal court, or trial justice.^ § 3. The Examination. — The court or trial justice will take her accusation and examination, in writing under oath, re- specting the person accused, the time when and place where the complainant was begotten with child, and such other circumstances as the court or trial justice deems necessary for the discovery of the truth of such accusation.^ It is not necessary that the original complaint to the magis- trate should be in writing,* nor need the accusation and examination be signed by the complainant, although the more usual practice has been to have them signed as well as sworn to by the mother.^ The court or trial justice should examine the complainant on oath carefully and fully to all the material averments, and the examination may be written by another person in the absence of the court, or trial justice, before the examination.® A paper entitled the " voluntary complaint, accusation, and 1 Pnb. St. c. 85, § 22; Wilbur v. » Smith w. Hayden, 6 Cush. 111,113. Crane, 13 Pick. 284, 289. 5 Williams v. Copeland, 5 Allen, 209. 2 Pub. St. c. 85, § 1. « Sayles v. Fanning, 13 Gray, 538, 8 lb. 539. § 6.] BASTARDY PEOCESS. 435 examinatioa o£ a certain woman, charging a man with being the father of a child likely to be born a bastard, stating when and where the child was begotten, sworn to by the complain- ant," is held to be a suflScient complaint, examination, and accusation.! § 4. The Warrant. — The court or trial justice may issue a warrant against the person accused, returnable before the same or any other court or trial justice having jurisdiction thereof in the county. The warrant may run throughout the State, and any officer to whom it is directed may serve it and apprehend the defendant in any county.^ To entitle the complainant to maintain such a prosecution, the bastard child must have been born in the State,^ and the defendant must be a resident of the State. It is not neces- sary that the complainant should be an inhabitant of the State or have a legal settlement in it,* or that the bastard child should have been begotten in the State.^ The com- plaint may be made after the death of the bastard.^ No stat- ute of limitations applies to it.'' It may be made against a minor.* § 5. Proceedings when the Accused is arrested. — A person arrested on a warrant issued on a complaint against him as the putative father of a bastard child may be released upon giving bonds as required by statute,^ and the hearing on the complaint may be continued from time to time by the court or trial justice upon the accused giving the bond required by the statutes, and if he does not appear before the court or trial justice as provided in the condition of the bond, he will be defaulted." § 6. Proceedings in Case of Default. — In case of such de- fault, the case, with a copy of the complaint, warrant, and bond, must be transmitted to the Superior Court in the same county.!' 1 Gallory ti. Holland, 15 Gray, 50. ' Wheelwright v. Greer, 10 Allen, 2 Pub. St. c. 85, § 1. 389,391. 8 Grant v. Barry, 9 Allen, 459; s McCall w. Parker, 13 Met. 372,381. Mc^adden v. Prye, 13 Allen, 472. » Pub. St. e. 85, § 4, 5. < Hill V. Wells, 6 Pick. 104. l" Pub. St. c. 85, § 6, 7. s McFadden v. Frye, 13 Allen, 472. " Pub. St. c. 85, § 7. « Meredith v. Wall, 14 Allen, 155. 436 BASTARDY PEOCESS. [CH. XXXVI. § 7. Hearing before the Magistrate. — If the party accused appears, he is entitled to a hearing before the court or trial justice, and upon and after such hearing the court or trial justice may require the accused to give bond with sufficient sureties to appear and answer to the complaint at the next term of the Superior Court holden for the transac- tion of civil business, and abide the order of court thereon ; and may order him to be committed until such bond is given .^ § 8. Entry in Superior Court. — The case must be entered at the term of the Superior Court holden next after such or- der of said inferior court. The action may be entered in the Superior Court by filing therein a copy of the accusation warrant and proceedings of such inferior court or trial jus- tice, and the Superior Court then has jurisdiction of the case." § 9. Course of Proceeding. — The statutes provide that the prosecutions in such cases, "except as otherwise expressly provided, shall be according to the course of proceedings in civil cases, and shall not be entertained at a term of the Superior Court held exclusively for the transaction of crimi- nal business, but may be tried before police, district, or muni- cipal courts when sitting for civil or criminal business." -^ § 10. Supplementary Complaint. — In practice it is USUal tO file a new and more formal complaint in the Superior Court, reciting the proceedings before the inferior court or trial jus- tice, and alleging all facts essential to sustain a prosecution against the party accused as the father of the bastard child." Upon such supplementary complaint it has been usual to try the case. The formal complaint is simply a mode of stating the facts and framing an issue with a view to a convenient and orderly trial of the matter in controversy.^ It may be signed by the attorney of the complainant.* It 1 Pub. St. c. 85, § 9. 4 Eice v. Chapin, 10 Met. 5, 6. 2 Chapel B. "White, 3 Cush. 537 ; Reed ' Reed v. Haskins, 116 Mass. 198, V. Haskins, 116 Mass. 198. 199. 3 Pub, St. c. 85, § 22. 6 Bent v. Ayers, 116 Mass. 263. § 16.] BASTARDY PROCESS. 437 need not be sworn to.^ It may be amended.^ The court may in its discretion allow it to be filed at any term.^ § 11. Respondent's Plea or Answer. — To this supplementary complaint the respondent should plead or answer, and may be ordered by the court so to do, and the issue to be tried is thus made up.* § 12. The issue to the jury is whether the defendant is guilty or not guilty.* § 13. If he is found not guilty he will be discharged and recover costs as in other civil actions.^ § 14. Judgment against Defendant. — If the jury find him guilty, or if he is defaulted, he will be adjudged by the court to be the father of such child, and will stand charged with the maintenance thereof, with the assistance of the mother, in such manner as the court shall order ; and ordered to give a bond as required by statute, and to be committed until he give such bond. The verdict in either case is final.'^ § 15. Defendant may take Poor Debtor's Oath. — Whoever has been imprisoned ninety days for having failed to comply with an order of the court, as provided in this chapter, may have the benefit of the laws for the relief of poor prisoners committed on execution : provided that he procures like noti- fication of his intention to take the" oath prescribed to poor debtors to be served upon the clerk of the citj' or town where the child of which he is the reputed father has its legal set- tlement, if there is such place in this state, and also upon the complainant, if living, thirty days at least before the time ap- pointed for taking the oath.^ § 16. Action of Contract by Mother. — " The mother of such child, and said city or town, or the State, respectively, may at all times after the liberation of such prisoner, or taking said oath, recover by action of contract any sum of money which 1 Sabins v. Jones, 119 Mass. 167. « Pub, St. c. 189, § 32 ; c. 85, § 15. "• Bailey v. Chesley, 10 Cush. 284. ' Pub. St. c. 85, § 15. « EeedK. Haskins, 116 Mass. 198. 8 p„b. St. c. 85, § 20. See ante, * Smith V. Hayden, 6 Cush. 111. p. 144. - Pub. St. c. 85, § 16. 438 BASTARDY PEOCESS. [CH. XXXVI. otiglit to have been paid to them respectively by him, in pur- suance of such Older of court." ' A judgment for costs in such proceedings is to be enforced by execution in the form usual in civil actions.^ § 17. Venue of the Process. — The action is transitory, and ' if both parties live in the State the complaint may be brought in the' county -where either one of the parties lives, although the child was born and begotten in another county .^ § 18. Evidence. — The mother of the child shall be ad- mitted as a witness in support of the complaint, and may be compelled to testify ; but her admissions shall not be used against her in any criminal prosecution, except for perjury committed while so testifying.* If, upon her first examination before the court or trial jus- tice before mentioned, she accuses any man of being the father of such bastard child, and, being put upon the dis- covery of the truth respecting such accusation in the time of her travail, she accuses the same man of being the father of the child of which she is about to be delivered, and has con- tinued constant in such accusation, the fact of such accusa- tion in time of travail may be put in evidence upon the trial to corroborate her testimony.^ If no accusation was made by the mother at the time of travail, no evidence as to accusations made by her afterwards can be admitted.^ Such evidence is only when specially authorized by statute.'' § 19. Complaint by Overseers of the Poor, &o. — " If a woman entitled to make a complaint refuses or neglects so to do when requested by an overseer of the poor of the place where she resides or has her settlement, or one of the State board of health, lunacy and charity, or the superintendent of the State alrbshouse, or a person authorized' by either of them to make the request, or either of her parents or her guardian, ' Pub. St. c. 85, § 21. 4 Williams v. Campbell, 3 Met. 209 ; " Pub. St. c. 198, § 32. Gallary v. Holland, 15 Gray, 50. " Young i;. Makepeace, 108 Mass. ' Pub. St. c. 85, § 16. 2.33, 236. 6 Ray v. Coffin, 123 Mass. 365. ' Bowen v. Eeed, 103 Mass. 46-49. § 20.] BASTARDY PEOOESS. 439 the person so requesting may make the complaint ; and when already made, if she refuses or neglects to prosecute the same, either of said persons may prosecute the case to final judgment, for the benefit of the parent, guardian, city, town, or State." i Leave of court to prosecute should be first obtained.^ " When a woman is an inmate of the State almshouse, a complaint by her or in her behalf may be made either in the county where she then is, or where she last had her usual place of abode before becoming such inmate, and the warrant shall be returnable in the latter county or the county where the defendant resides." * " When a complaint is made in the county of SufPolk, by or in behalf of an inmate of the house of industry at Deer Is- land, the warrant shall be returnable -before the municipal court of the city of Boston." * § 20. What Persons may' settle such a Case. — This is par- ticularly prescribed by statute.^ 1 Pub. St. c. 85, § 2. » Pnb. St. c 85, § 3. 2 Noonan v. Brogan, 3 Allen, 481, * Pub. St. c. 85, § 17-19. 483. 6 lb. 440 AUDITORS AND ASSESSOES. [CH. XXXVII. CHAPTER XXXVII. AUDITORS AND ASSESSORS. § 1. The office of Auditor is one of great antiquity in the common law. In Holmes v. Hunt, Gray, C. J., says : " The practice of referring matters of account to auditors as subor- dinate officers of the court is' of very ancient origin. In the common law, action of account, which was in use as early as the reign of Henry III., the court, upon rendering the interlocutory judgment quod computet, assigned auditors to take the accounts between the parties." " In the last century and in the early part of the present, the action of account was in use in Massachusetts, but it was gradually superseded by the action of assumpsit in the nature of account or for money had and received." ^ § 2. When an Auditor may be appointed. — Our statutes provide that " when a cause is at issue, whether the form of the action is contract, tort, or replevin, a police, district, or municipal court, when both parties assent thereto in writing, and any other court in its discretion, may appoint one or more auditors to hear the parties, examine their vouchers and evidence, state accounts, and report upon such matters there- in as may be ordered by the court." ^ The appointment of an auditor is a matter entirely in the discretion of the court, and its refusal to appoint one is no ground for a new trial.^ § 3. The rule issued. — A rule or order of the court in the nature of a commission is issued by the clerk of the court to the auditor, stating the matter referred to him. 1 122 Mass. 512, 513. s Pierce v. Thompson, 6 Pick. 192. 2 Pub. St. c. 159, § 51. § 6.] AUDITORS AND ASSESSORS. 441 The rules of the Supreme Judicial Court provide that " whenever auditors shall be appointed in any action the rule shall be taken out and proceeded upon within such time dur- ing the term or in vacation as that the report shall be made at the next succeeding term of the court." No similar rule has been adopted or enforced by the Superior Court. Fre- quently several terms of the court are passed after a case is referred to an auditor before his report is filed in court. By a rule of the Superior Court, however, no case referred to an auditor shall be put on the trial list by the clerk before the report is filed. ^ § 4. The auditor must give notice to the parties of the time and place appointed for their, meeting, and may adjourn from time to time as may be necessary. If there is more than one auditor, all must meet and hear the cause, but a report by a majority shall be valid.^ It is held that an auditor to whom a report is recommitted for amendment in matter of form need not give notice to or hear the parties.^ § 5. The court may for cause discharge the auditors and ap- point others, and may recommit the report for revision or further examination to the same or to other auditors.* The refusal of a judge of the Superior Court to recommit the report of an auditor is not a subject of exception.^ § 6. The duties of an auditor are in general to investigate accounts. The rule of court under which he acts in Massa- chusetts usually empowers him to hear the parties, examine their vouchers and evidence, state accounts, and make report thereof to the court. In the case of Locke v. Bennett,^ the duties of auditors are defined by Mr. Justice Fletcher. He says : " The auditors are to hear the parties, and, of course, they are to hear them for the purpose of deciding such matters as may be heard. But in regard to what matters are the auditors to hear the 1 Rule 14. » Packard v. Eeynolds, 100 Mass, " Pub. St. c. 159, § 52, 53. 153. s Webber v. Orne, 15 Gray, 351. » 7 Cush. 451. * Pub. St. c. 159, § 54. 442 AUDITOES AND ASSESSOES. [CH. XXXVII. parties, and to examine their vouchers and evidence ? In the words of the statute, they are ' to hear the parties,' in the most general terms ; they are to hear them as to everything, without limit and without restriction, bearing upon the mat- ter which they have in charge and the duty which they have to perform ; that is, taking and stating an account. They are to hear them upon everything material in relation to the account; everything proper to be considered in deciding upon the merits of the claims of the respective parties. They are not only to examine vouchers, but evidence in relation to all questions arising in the investigation of accounts." In that case it was held that the auditor was authorized to consider whether a particular individual was the authorized agent of one of the parties, to purchase, on his behalf, the goods charged by the other in account against him. In the case of Corbett v. Greenlaw,^ Mr. Justice Endicott, in stating the opinion of the court, says : " It is well settled that an auditor is authorized to hear and determine all ques- tions incidental to and necessarily involved in a statement of the accounts, and which are essential for the correct determi- nation of the matter submitted to him. Upon what ques- tions he may pass, depends upon the nature of the contro- versy, and varies with the exigencies of each particular case. He may allow or disallow promissory notes which enter into the account between the parties ; he may determine whether a person was the agent of the defendant to purchase the goods sued for ; he maj' report that the acceptor was in funds at a certain time ; he may, in stating the account where a party seeks to redeem land from a mortgage, find an agree- ment to treat principal and interest as a new debt, on which interest may be computed thereafter." That case was a petition to enforce a lien under the Gene- ral Statutes, c. 160, and it was held that the auditor had au- thority to determine whether the petitioner's certificate was seasonably filed, whether he had wilfully claimed more than was his due, and all matters of fact legitimately involved in the question of the lien. » 117 Mass. 167. § 9.] AUDITOES AND ASSESSOES. 443 § 7. Powers of Auditors at Hearings before them. — Audi- tors are authorized to issue summonses for witnesses and to administer oaths or afErinations to all persons offered as wit- nesses before them ; * and the statute provides that if a per- son duly summoned and obliged to attend as a witness fails to attend befoi-e an auditor appointed by the Supreme Ju- dicial Court or Superior Court, it shall be considered a con- tempt of the court, and may be punished by a fine not exceeding twenty dollars.^ No other pOwer to punish for a contempt of court appears to be given to auditors by the statutes of Massiachusetts. And a doubt has been expressed by the court as to the con- stitutionality of the act whereby this power is conferred upon them.^ The power, if constitutional, must be exercised, or some steps taken towards its exercise, commenced either before the case in which the witness was summoned is finished, or at least before the court in which it is pending is finished and ended without adjournment.* § 8. The hearing before an auditor is conducted like a hear- ing before the court by which the auditor is appointed. § 9. As to the duties of an auditor in making his report, Gray, C. J., in Fair v. Manhattan Ins. Co.,"* says: "An au- ditor is not limited in his report to a naked summary of the facts found, or of the account between the parties ; but may, at his discretion, include in it a narrative of the circumstances of the case, and a statement of the evidence given before him, and his reasons for his conclusions ; such a statement may be considered by the jury, and the respect which they should p^y to his report may be affected by the manner in which he appears to have performed his duty." The auditor is to investigate and report upon such matters only as are embraced in the record, and he cannot allow any sum or claim that is not included in the declaration or set-off.^ 1 Pub. St. c. 169, § 1, 12, 13. « Clarke's Case, 12 Cash. 320, 322. 2 Pub. St. c. 169, § 5. « 112 Mass. 329. s Whitcomb's Case, 120 Mass. 118, « Merrill v. Enssell, 12 N. H. 74; 124. Flint V. Hubbard, 1 Allen, 252. 444 AUDITORS AND ASSESSORS. [CH. XXXVII. The report should state definite!}' and specifically the find- ings of the auditor on all matters committed to him, so as to- give full and accurate information thereof. When necessary to a full understanding of accounts between the parties, such accounts should be restated in the report, showing the balance found by the auditor to be due to either party. ^ § 10. Power of the Court as to Auditor's Report. — The court, for cause shown, may discharge the auditor or may re- commit a report to the same or another auditor,^ or revise it and order certain portions of it stricken out.^ If an auditor in making his report states the facts upon which his conclusions are founded, and these facts are not sufficient in law to sup- port the conclusions, the court may instruct the jury accord- ingly.* In Allen v. Hawks,^ Chief Justice Shaw said : " It is for the court to determine whether the auditors have pursued their authority and completed their duty, and conducted honestly and correctly, and to accept or reject or recommit the report." An objection to the form of the report, to the fulness or manner in which the auditor has stated the evidence, or the reasons by which he has been influenced or to the qualifica- tions of witnesses testifying before him, should be raised by motion to recommit the report for amendment before trial.® § 11. Auditor's Report Prima Facie Evidence. — The statutes provide that the auditor's report shall be prima facie evidence upon such matters only as are expressly embraced in the or- der.'^ This statute is held to be constitutional.^ The testimony of an auditor is inadmissible to contradict or modify his report.^ The court has authority to require an auditor's report to be read at the trial, although neither party relies upon it.^" The report of an auditor made in a case to a police, muni- 1 Copeland w. Crane, 9 Pick. 73. 'Fair o. Manhattan Ins. Co., 112 2 Pub. St. c. 159, § 54. Mass. 320, 331, and cases there cited. ' Paddock «. Commercial Ins. Co., 104 ' Pub. St. c. 159, § 51. Mass. 530 ; Jones v. Stevens, 5 Met. 373. ^ Holmes v. Hunt, 122 Mass. 505. * Morrill u. Keyes, 14 Allen, 222. 'Packard v. Reynolds, 100 Mass. 5 Fair o. Manhattan Ins. Co., 112 153. Mass. 320, 331. 10 Clark v. Fletcher, 1 Allen, 53. § 13.] AUDITORS AND ASSESSORS. 445 cipal, or district court, if the case is carried to the Superior Court by appeal, may be used in the trial in that court.^ The report is not binding and conclusive in itself, although it may become so if no substantial objection is shown to it.^ In the case of Fair v. Manhattan Ins. Co., Gray, C. J., said : " An auditor's report is not governed by all the rules regulating the admission of ordinary evidence offered by either party. It is the report of an officer appointed by the court under authority of the statute. It is made by the statute prima facie evidence only upon such matters as are referred to the auditor. It does not, technically speaking, change the burden of proof. The object of the statute is to simplify and elucidate the trial of those matters, and is not to be defeated or evaded at the election of either or both parties. If the plaintiff relies on the auditor's report at all, he may be required to read the whole of it ; but the part which is unfavorable, as well as that which is favorable to him, is only prima facie evidence. As the court may refer a case to an auditor without, or even against, the consent of the parties, it may require his report to be read at the trial, although neither party desires it. " Where the statute makes the leTport prima facie evidence, it does not establish an invariable measure of the degree of confidence with which the jury shall receive the auditor's re- port. It merely gives the party in whose favor the auditor reports the benefit of his finding in the first instance, and declares it to be sufficient to support the claim or defence, unless in the opinion of the jury it is overcome by other evidence." ^ § 12. Costs. — Auditors have no power over the question of costs, either to allow or disallow them.* § 13. Compensation of Auditors. — The court will award reasonable compensation to auditors, to be paid by the county, if the auditor is appointed by the Supreme Judi- cial Court or the Superior Court. If the auditor is ap- pointed by any other court, the compensation awarded may 1 Webber v. Orne, 15 Gray, 351. » 112 Mass. 329. ' Lyman v. Warren, 12 Mass. 412. * Lyman w. Warren, 12Mas3.412,413. 446 AUDITORS AUD, ASSESSORS. [CH. XXXVII. be paid by either party and taxed in his bill of costs if he prevails ; but the plaintiff shall be responsible for such pay- ment, and the court may make all orders and decrees, and issue any process which to it may appear necessary or proper in order to enforce the same.^ § 14. The powers and duties of assessors are substantially the same as those of auditors in all matters relating to the hearings before them, and the making of their reports, and their reports are subject to be recommitted or reviewed by the court. In Paddock v. Commercial Ins. Co.,^ Chief Justice Gray said : " Whenever, in the absence of special provisions of statute or of the rule of reference, a case at common law or in equity or admiralty is referred to a subordinate officer, for the purpose of finding facts and reporting them to the court, whether he is styled assessor, auditor, master in chancery, or commissioner, his findings may be reviewed by the court ; and the appropriate wa^ of bringing them before the court for this purpose is by specific exceptions to his findings, and by his report of the evidence on the points on which his excep- tions are taken." When an action at law previous to a trial is referred to a person to hear the parties and state accounts, he is styled an auditor. When, after a general verdict for a plaintiff, or after a general finding for the plaintiff by the court, or after an agreement of parties that a judgment shall be entered for the plaintiff for a sum to be determined, a person is appointed to assess the damages in the case, he is styled an assessor. An assessor is appointed by consent of parties. His pow- ers, so far as derived from the statutes, are the powers con- ferred upon auditors.3 The findings of an assessor have the weight of a verdict, and are not to be set aside unless they clearly appear to be erroneous.* An assessor has no power to 1 Pub. St. i;. 159, § 55. Co., 10 Gray, 131, 143 ; Fisk v. Gray, '■' 10* Mass. 531. 100 Mass. 191 ; Dean v. Emerson, 102 * Fisk V. Gray, 100 Mass. 191, 193. Mass. 480 ; Taber v. Jenny, 1 Spfague, * Paddock v. Commercial Ins. Co., 315. 104 Mass; 531 ; Heebner v. Eagle Ins, § 14.] AUDITORS ANB ASSESSOKS. 447 decide the question of costs.^ A master in chancery is an officer of a court sitting as a court in equity. It is, how- ever, proper to state here that his powers in the hearing of parties are substantially the same as those of auditors and assessors. An auditor or assessor having completed his report should file it in the office of the clerk of the court in which the ac- tion is pending. The Supreme Judicial Court and the Superior Court will award reasonable compensation to assessors and masters in chancery to be paid by the counties.^ I Fisk W.Gray, 100 Mass. 191. '^ St. of 1882, c. 216. 448 AEBITBATION. [CH. XXXVm. CHAPTER XXXVIII. AEBITBATION. § 1. Arbitration at Common Law. — One mode of settling matters in dispute between parties is by reference to arbitra- tion. A reference is the voluntary act of the parties, and to be binding must be by parties capable of contracting. Every person who can release his right in the matter referred may be a party to the submission. Mr. Tidd says : " Arbitrations are of two kinds ; first, when there is a cause depending in court, and, second, when no cause is depending. The submission in the former case is either by rule of court or judge's order, before the trial, or by order of nisi prius at the trial, which may be afterwards made a rule of court." " In the other case the submission is made by agreement of the parties, which is either in writing or by parol." ^ The general principles of the common law in relation to arbitration are adopted in Massachusetts. Additional pro- visions on the subject and new forms of procedure are con- tained in our statutes. § 2. Modes of Arbitration. — The common-law modes of ar- bitration are by a rule of court where an action on the matter referred is pending in court ; by a submission in writing, the parties giving mutual bonds to abide the award ; or by a sub- mission by parol. In addition to these common-law methods is that provided by our statutes, which is much resorted to.^ The submission by parties giving mutual bonds and the submission by parol are generally denominated submissions in pais, and can only be enforced by action. 1 2 Tidd's Pr. 819. 2 Pub. St. c. 188. § 5.] ARBITRATION. 449 A written submission supersedes one previously made by parol.i An agreement to submit to arbitrators does not oust the courts of jurisdiction, and when such is its effect it is in valid. 2 § 3. What Matters may be referred. — It may be stated as a general rule at common law that all controversies which might be the subject of an action may be referred to arbitra- tors. A town may submit to arbitration, under this statute, a controversy to which it is a party, and a vote of a town, em- powering its selectmen to settle a claim against it at their discretion, authorizes the selectmen to submit the claim to arbitration.^ § 4. What may not be referred. — The question how much a defendant should pay to the plaintiff for the plaintiff's sur- render of a lease to him at a future day is not a subject of submission to arbitrators under this statute.* Neither is a claim under the mill act for damage occasioned to land by flowing it by a mill dam,^ nor any question concerning the title to real estate.^ § 5. Arbitration under the Statute. — The statutes provide that all controversies which might be the subject of a per- sonal action at law or suit in equity may be submitted to the decision of one or more arbitrators, in the manner therein provided, and prescribe the following form of submission. The parties must appear in person, or by their lawful agents or attorneys, before a justice of the peace, and there sign and acknowledge an agreement in substance as follows: — " 'Know all men, that , of , and , of , have agreed to submit the demand, a statement whereof is hereto annexed (and all other demands between them as the case may be) to the determination of , and , 1 Loring v. AHen, 3 Met. 576 ; Sy- * Burghardt v. Owen, 13 Gray, 300. monds v. Mayo, 10 Cnsh 39. 6 Henderson v. Adams, 5 Cush. 610, 2 Bowe V. Williams, 97 Mass. 163; 612; Carpenter k. Spencer, 2 Gray, 407. Emerson v. Wadman, 122 Mass. 384. 6 Fowler v. Bigelow, 8 Mass. 1. " Campbell v. Upton, 1 13 Mass. 67. 29 450 AEBITKATION. [CH. XXXVIII. the award of whom, or the greater part of whom being made and reported within one year from this day to the Superior Court for the county of , the judgment thereon shall be final ; and if either of the parties neglects to appear before the arbitrators, after due notice given them of the time and place appointed for hearing the parties, the arbitrators may proceed in his absence. Dated this day of , in the year . . " The justice, who may be one of the arbitrators, shall sub- join to the agreement his certificate, in substance as follows : " » , ss. , . Then the above-named , and , personally appeared (or, the above-named , personally, and said , by said , his attorney, appeared, as the case may be) and acknowledged the above instrument by them signed to be their free act. Before me, , Justice of the Peace.' " ^ If a specific demand is submitted to the exclusion of others, such demand should be set forth in the statement annexed to the agreement; otherwise it is not necessary to annex any statement of a demand, and the submission may be of all de- mands between the parties, or of all demands which either has against the other. The submission may be varied in this respect in any other manner, according to the agreement of the parties. An agreement to submit all demands shall be deemed to include only such as might be the subject of a personal action at law or of a suit in equity.^ § 6. Requirements as to the Submission. — The submission under the statute must be signed and acknowledged by all the parties to it.^ When there are two or more persons par- ties of one part, it must be signed and acknowledged by each. 1 Pub. St. c. 188, § 1, 2. » Abbott V. Dexter, 6 Cush. 108. 2 Pub. St. c. 188, §3, 4. § 9.] AEBITRATION. 451 If one party is a partnership, the submission must show who are the members of the firm.-' A submission to three arbitrators which named only two, and provided that they should choose the third, is not in com- pliance with the statute and gives no jurisdiction.^ An award of three referees, acknowledged before one of themselves as a justice of the peace is held to be void, although both parties appeared and were heard before the referees, and although the submission stipulated that the award of a majority should be sufficient.^ § 7. The Time fixed for the Return cannot be changed by the Parties. — In a case referred under the statute, it is held that an agreement in writing, by the attorneys of both parties, to extend the time for returning the award, is held to be in- valid.* It is doubtful whether any change in the time limited originally in a submission can be subsequently varied without an agreement in writing and the formality of an acknowledg- ment before a justice of the peace.^ In case an award has been recommitted to the arbitrators by the court, no provision is made by statute as to the time of the return of the second award, and it may be accepted although not returned into court until after the expiration of a year from the date of the submission.^ § 8. What to do with the Award. — In case of a reference under the statutes it is provided that "the award shall be delivered by one of the arbitrators to the court designated in the agreement, or shall be enclosed and sealed by the arbi- trators and transmitted to the court, and shall remain sealed until opened by the clerk."'' § 9. The award may be returned at any term or session of the court held within the time limited in the submission, and the parties shall attend without any express notice for that purpose ; but the court may require actual notice to 1 Abbott 0. Dexter, 6 Cush. 108; Wes- * Franklin Mining Co. v. Pratt, 101 son V. Newton, 10 Cush. 114. Mass. 359. 2 Franklin Mining Co. v. Pratt, 101 ' Burghardt v. Owen, 13 Gray, 300, Mass. 359. 302. » Heath v. Tenny, 3 Gray, 380. « Sperry v. Eicker, 4 Allen, 17, 18. ' Pub. St. c. 188, § 8. 452 AKBITKATION. [CH. XXXVIII. be given to either party before it proceeds to act upon the award. 1 § 10. The court shall have cognizance of the award in the same manner, and may proceed thereon, as if it had been made by referees appointed by a rule of court, and may ac- cept or reject it, or recommit it to the same arbitrators for a rehearing. When accepted and confirmed by the court, judgment shall be rendered thereon as upon a like award by referees.* § 11. The time 'within which the aw^ard shall be made and reported may be varied according to the agreement of the parties, but no award made after the time fixed by the agree- ment shall have any legal effect or operation, unless made upon a recommitment by the court to which it is reported.^ The award may be returned to a court commenced before the award was made.* § 12. Appeal. — It is provided by statute that an appeal founded on matter of law apparent upon the record shall be allowed from any order or judgment of the Superior Court on an award made under the statute, or that a party ag- grieved may bring a writ of error for any error in law or fact as in other cases, and that the Supreme Judicial Court shall thereupon render such judgment as the court below ought to have rendered." § 13. Exceptions may be taken to an order of the Superior Court, accepting or rejecting an award made by referees ap- pointed under a rule of court.^ § 14. Submission by Hule of Court. — This mode of sub- mission can be resorted to only when an action is pending in court. The parties may then agree to refer the action to one or more persons. The names of the arbitrators are entered upon the docket, by the clerk and the action postponed or continued to await the award. A rule of the court signed by the clerk is then issued to be delivered to the referee or 1 Pub. St. c. 188, § 9. « Pab. St. c. 188, § 12; Ellicott r. 2 Pub. St. t. 188, § 10. Coffin, 106 Mass. 365-369. 8 Pub. St. c. 188, § 5. « Miller o. Miller, 2 Pick. 570 ; Olney ' Skeels v. Chickering, 7 Met. 316. v. Brown, 2 Pick. 571 ; Fay v. Bond, 3 Allen, 433. § 16.] AEBITKATION. 453 referees, as the authority to him or them to act in the prem- iaes, and to notify and hear the parties, make an award, and report the same to the court. § 15. What may be included in the Submission. — Such a submission may by agreement comprehend other matters in controversy between the parties not embraced in the action.^ Such submissions are usually made by the parties or with their expressed consent, but they may be made by the attor- neys of record.^ § 16. The Hearing before Arbitrators. — Whether the sub- mission be under a rule of court or under the statute, the rules of practice as to the hearing are the same. All the ar- bitrators must meet and hear the parties.^ The power of arbitrators to summon and compel the at- tendance of witnesses, and to swear them, is the same as stated in the last chapter in relation to auditors. A trial be- fore arbitrators generally is and should be conducted in the same manner, and governed by the same rules, as a trial in the courts where the reference is held. In Maynard v. Frederick,* Chief Justice Bigelow said: "It is well settled that referees are not bound by the strict rules of law as to the admission of evidence. They may examine witnesses interested in the event of the suit who would be incompetent in a court of law ; and the reason given is that arbitrators are the sole and exclusive judges both of law and fact. And they may examine the witnesses either under oath or not, at their discretion." In Maine it is held that referees may receive or reject tes- timony which at common law would be inadmissible.* It is held in New Hampshire that, unless restricted by the terms of the submission, arbitrators or referees may decide ques- tions of law and of evidence contrary to what the court would have done.® It is held in Vermont to be no objection to an award that neither the arbitrators nor witnesses were sworn, 1 Berkshire W^ooUen Co. v. Day, 12 Adams, 11 Cush. 549; Asp v. Warren, Cnsh. 128. 108 Mass. 589. 2 Buckland v. Conway, 16 Mass. 396. ^ Smith v. Gorman, 41 Me. 405. 8 Short B. Pratt, 6 Mass. 496 ; Pub. » Greenough v. Eolfe, 4 N. H. 357 ; St. c. 188, § 7. Piersons v. Hobbs, 33 N. H. 31. * 7 Cush. 250. See also Fairchild v. 454 ARBITRATION. [CH. XXXVIII. where the parties agreed that they need not be, or where the law of the place does not require it.^ § 17. The Award. — The usual mode of submission under the statute and under a rule of court is the same, as to the power of a majority of the arbitrators to make an award.^ The usual submission to certain persons named as referees is with a provision that " the award of whom or the greater part of whom being made," &c., "judgment thereon shall be final." 3 Under such a submission it is held that it must directly appear that all the referees met and heard the parties, although the majority might make a valid award.* Arbitrators, having met and come to a final decision, may sign the award at different times and places without again meeting for that purpose.^ § 18. The Award' must conform to the Submission. — Refer- ees have no authoritj"- to consider and report upon any matter not contained in the submission.® The legal presumption, unless the contrary appears, is that arbitrators decide all the matters which are submitted to them and only those.' The award is invalid if the referees do not pass upon all the matters submitted to them.* Under a submission to arbitration of counter-demands, an award that one of the parties recover of the other a fixed sum, and that " the same is in fulLof all matters referred," is held to be good.^ § 19. Decisions of Arbitrators are Conclusive. — Arbitrators have authority to decide conclusively all questions of law, necessary to the decision of questions submitted to them, unless they are restricted by the terms of the submission, or unless it appears on the face of their award that they in- tended to decide according to law, but have decided contrary ' Woodrow V. O'Connor, 28 Vt. 776. « Tudor v. Peck, 4 Mass. 242; Bean 2 Pub. St. c. 1S8, § 7. V. Farnum, 6 Pick. 269. 3 Pub. St. c. 188, § 2. ' Sperry v. Ricker, 4 Allen, 17. * Short V. Pratt, 6 Mass. 496 ; Sperry * Bean v. Farnum, 6 Pick. 269. V. Ricker, 4 Allen, 17. ^ Harden v. Harden, 11 Gray, 435. ' Campbell v. Upton, 113 Mass. 67 ; Blodgett V. Prince, 109 Mass. 44. § 22.] ARBITEATION. 455 to law; and there is no distinction in this respect between the authority of arbitrators who are selected from the legal pro- fession and that of other arbitrators. The decision of arbi- trators to whom all questions of fact and law are submitted and who act fairly is conclusive unless it can be impeached and avoided by proof of fraud practised on them, or proof of mis- take or accident, by which they were deceived and misled, so that their award is not in fact the result of their judgment.^ § 20. What shall be done with the Award. — The award made by arbitrators under a rule of court, being properly sealed up and directed, should be returned to court, according to the terms thereof, in order that a judgment may be rendered thereon ; but an award made on a submission in pais need not be returned to any court, as no judgment can be rendered on such an award.^ The award may properly be delivered to the prevailing party, and the only remedy on it is by action or a bill in equity for specific performance.^ When an award returnable to a court is duly returned and entered, the court may recommit it, reject it, or accept it and enter judgment upon it ;* and may enter judgment for a less sum than the report awards the plaintiff, the latter relinquish- ing the excess upon the record.^ § 21. The time vrithin which the award may be made and re- turned into court may be varied according to the terms of the submission and the rule. The usual order in such a rule is that the award be made to the court at any term thereof as soon as may be. Reasonable time is always allowed by the court to parties for the trial of the case and return of the award. See ante, p. 451. § 22. Proceedings. — When the award of referees acting under a rule of court has been returned into court, the subse- quent proceedings in relation thereto are the same as in case of a reference under the statute. 1 Boston Water Power Co. v. Gray, ' Shearer v. Mooers, 19 Pick. 309. 6 Met. 131. * Pub. St. c. 188, § 10. 2 roster V. Durant, 2 Cush. .550 ; 6 phelps v. Goodman, 14 Mass. 252. Woodbury v. Proctor, 9 Gray, 19 ; Shear- er V. Mooers, 19 Pick. 308. 456 ARBITRATION. [CH. XXXVIII. § 23. Objections to an Award. — The Rules of the Superior Court provide that " all objections to the acceptance of an award, and all motions to have the same recommitted, shall be reduced to writing, and the ground of such objection or motion distinctly stated ; and if the objections and motions are grounded upon facts, those facts shall be verified by affi- davit, unless the same are apparent from the record, or from the papers on file in the case, or are agreed to in writing, and signed by the parties or their attorneys. " ^ § 24. When an Award may be set aside. — When it is sought to set aside an award upon the ground of mistake committed by arbitrators, it is not sufficient to show that they came to a conclusion of fact erroneously, however clearly it may be demonstrated that the inference drawn by them was wrong. It must be shown that by some error they were so misled or deceived, that they did not apply the rules which they intended to apply to the decision of the case, so that upon their own theory a mistake, was made, which has caused the result to be something different from that which they had reached.^ An award may be recommitted for improper conduct by arbitrators, or for rehearing or for amendments in matters of form or for other sufficient cause.^ § 25. Costs in Arbitrations. — Arbitrators under an agree- ment in pais where no cause is pending, without special au- thority to award costs, have no power to award costs to either party.* If the submission give the arbitrators power to award as to costs, an award that one party pay to the other the costs of reference taxed at a certain sum is good without stating the items.^ When arbitrators award costs it is better to state the items. In an arbitration under the statute, if there is no provision in the submission concerning costs and expenses, the arbitra- 1 Eule 20. * Blood v. Robinson, I Cash. .389. 5 Davis V. Henry, 121 Mass. 150, 154. » Peters v. Peirce, 8 M.ass. 398; Vose 8 Conrad v. Massasoit Ins. Co., 4 Al- v. How, 13 Met. 244 ; Tallman v. Tall- ]en, 20 ; Morville v. American Tract man, 5 Cush. 326. Soc, 123 Mass. 129, 139; Roberts v. Old Colony R. R., 123 Mass. 552. § 26.] AEBITKATION. . 457 tors may make such award respecting them as they judge reasonable, including a compensation for their own services ; but the court may reduce the sum charged for compensa- tion if it appears unreasonable.^ In a reference under a rule of court the matter is reg- ulated by the rule. If that contains no restriction of the powers of the referees, they may award costs to either party in whole or in part.^ If the award is silent on the subject of costs, the prevailing party is entitled to recover them.^ § 26. Compensation of Arbitrators. — Keferees usually make some arrangement as to their compensation before the award is signed by them. This matter is wholly within their dis- cretion under the circumstances of the case. They may re- quire the prevailing party to pay them the full amount of their compensation, and include the sum in the costs allowed to him, or they ma'y require each party to pay to them one half of that amount, and award the prevailing party the sum so paid by him in his bill of costs ; or they may make any other adjudication in relation to it that may seem to them just and proper. In all cases they have a right to retain their award until their fees are paid to them, and it is usually advisable to do so. 1 Pub. St. u. 188, § 11. » Woolson v. Boston & Worcester ' Nelson v. Andrews, 2 Mass. 164; R,K. Co., 103 Mass. 580. Bacon v. Craudon, 15 Pick. 79. 458 EVIDENCE. [CH. XXXIX. CHAPTER XXXIX. EVIDENCE. §1. Who are Competent Witnesses. — At common law all persons interested in the resnlt of a cause are deemed incom- petent to testify in the trial of it unless their evidence is against their interest.^ But the policy of the law in this respect in our Commonwealth is changed by statute. Our statutes provide that " no person of sufficient understanding, whether a party or otherwise, shall be excluded from giving evidence as a witness in any proceeding, civil or criminal, in court, or before a person having authority to receive evidence, except in the following cases : — " First, Neither husband nor wife shall be allowed to tes- tify as to private conversations with each other. " Second, Neither husband nor wife shall be compelled to be a witness on any trial upon an indictment, complaint, or other criminal proceeding, against the other. " Third, In the trial of all indictments, complaints, and other proceedings against persons charged with the commission of crimes or offences, a person so charged shall, at his own re- quest, but not otherwise, be deemed a competent witness ; and his neglect or refusal to testify shall not create any pre- sumption against him." ^ Facts in relation to the interest of a witness in the result of the suit on trial, or in relation to crimes committed by him which formerly caused the exclusion of his testimony, may now be shown for the purpose of affecting his credibility.^ The statutes provide that the conviction of a witness of a 1 1 Greenl. Ev. § 326, 430. 8 Pub. St. c. 169, § 19-22. s Pub. St. t. 169, § 18. § 6.] EVIDENCE. 459 crime may be shown to affect his credibility,^ and it is held that the word " conviction " implies a judgment of a court.^ § 2. The testimony of a person may be used in the trial of a case by putting the witness upon the stand and examining him orally, or, under certain circumstances named in the next chapter, his deposition may be taken and read to the court or jury at the trial. In relation to oral testimony the first thing to be consid- ered is, how to procure the attendance of witnesses. § 3. The attendance of -witnesses at a trial is compelled by a subpoena, which is a judicial writ directed to the witnesses, commanding them to appear before the court, and, at the time therein specified, to give their evidence in the case named in the writ. The form of subpoena which is used in all common cases is prescribed by statute. It is not required to be under seal, and it may be signed in all cases by any of the clerks of the several courts, or by any justice of the peace.^ It is most gen- erally signed by one of the counsel in the case, who is a justice of the peace. § 4. Who may issue a Subpoena. — Every clerk of a court of record, and every justice of the peace, may issue summonses for witnesses in all civil cases pending before courts, magis- trates, auditors, referees, arbitrators, or other persons author- ized to examine witnesses.* Any number of witnesses may be included in one subpcsna. § 5. Subpoena of United States Court. — The SubpCBna is plainly of no force beyond the jurisdictional limits of the court in which the action is pending, and from which it issued ; but the courts of the United States, sitting in any district, are empowered by statute to send subpoenas into any other district, provided that in civil causes the witnesses do not live more than one hundred miles from the place of trial. § 6. Service of Summons on Witnesses. — A summons for a witness may be served in any county by an officer qualified ' Pub. St. «. 169, § 19. 8 St. of 1784, c. 28, § 5. 2 Commonwealth v. Gorham, 99 " Pub. St. c. 169, § 1. Mass. 420. 460 EVIDENCE. [CH. XXXIX. to serve a civil process, or by a disinterested person, by exhib- iting and reading it to the witness, or by giving him a copy thereof, or by leaving such copy at the place of his abode.' There is no limited time before the trial within which a sub- poena must be served. It must of course be done so as to give the witnesses summoned a reasonable time to come to the place specified, if they reside at a distance ; but where they are at hand the subpoena is generally served at most but the day before the trial, and often after the trial has commenced. A summons in the morning to attend in the afternoon of the same day has been held insufficient, though the witness lived in the same town and very near the place of trial.^ No person is obliged to attend as a witness unless the fees allowed by law for one day's attendance, and for travelling to and returning from the place where he is required to attend, are paid or tendered to him.^ § 7. When a "Witness fails to attend. — If a person duly sum- moned and obliged to attend as a witness under the provisions of the statutes fails so to do without a reasonable excuse, he will be liable to the aggrieved party for all damages occasioned by such failure, to be recovered in an action of tort.* Such failure to attend will also be considered a contempt of the court, and may be punished by a fine not exceeding twenty dollars ; and the court, justice, master in chancery, county commissioners, or auditor, in such case, may issue a warrant to bring such witness before them to answer for the contempt, and also to testify as a witness in the cause in which he was summoned.^ If the summons be served by an officer, as in practice it generally is, his simple return upon the back thereof is evi- dence of the service. But if served by any indifferent person, his affidavit is necessary to show that it has been done. § 8. Duty of a "Witness to attend. — When a witness has made his appearance at court in pursuance of the subpoena, he is bound to remain until the cause is determined, or he is ' Pub. St. c. 169, § 2. * Pnb. St. c. 169, § 4. " 1 Greenl. Ev., § 314 and note. ^ Pab. St. c. 169, § 6, 6. « Pub. St. c. 169, § 3. § 11.] EVIDENCE. 461 discharged by the party wbich summoned him. He has a right, however, to demand the payment of his fee for each day's attendance on each day, and if it be not paid, he may safely depart, but not without such demand and refusal. § 9. When a Witness's Fees should be paid to him. — Witnes- ses are entitled to their legal fees for travel and one day's attendance before they can be compelled to appear and testify in an action, and, if they are to be kept in attendance, they must be paid their legal fees for one day in advance of every day they attend, unless they waive their right to be so paid. The fees for travel and one day's attendance should be paid to a witness when he is summoned. The fees for subsequent attendance usually are not paid till the day he is discharged from further attendance, unless the witness requires it. The fees of a witness w^ho attends at the request of a party with- out being summoned, though not called to testify, may be cer- tified and taxed in the bill of costs.^ § 10. Habeas Corpus ad Testificandum. — If the witness be in custody at the time of the trial, the only way of bringing him into court to give evidence is by a writ of habeas corpus ad testificandum. This writ can be obtained only upon motion to the court, stating that the witness is a material one, and the fact of his being in custody. If the motion is allowed, the writ is issued by the clerk, directed to the officer in whose custody the witness is, commanding such officer to bring the witness into court. The witness is thereupon brought in to testify.^ § 11. When Witnesses are protected from Arrest. — Mr. Greenleaf states the rule to be, that " witnesses as well as parties are protected from arrest while going to the place of trial, while attending there for the purpose of testifying in the cause, and while returning home ; eundo, morando, et redeundo. A subpoena is not necessary to this protection if the witness has consented to go without one; nor is a writ of protection essential for this purpose, its principal use being to prevent the trouble of an arrest and an application for dis- 1 Farmer v. Storer, 11 Pick. 241. ^ Howe's Pr. 230, 231 ; 2 Tidd's Pr. 274. 462 EVIDENCE. [CH. XXXIX. charge by showing it to the arresting officer, and sometimes, especially when a writ of protection is shown, to subject the officer to punishment for contempt." ^ He cites several cases to sustain this rule,^ and the cases of Ex parte McNiel, contra.^ The cases of Ex parte McNiel do not appear to be in con- flict with the rule stated by Mr. Greenleaf. In the first of those cases it is held that a writ of protection is not necessary to one whose duty brings him to the court, whether as a juror, witness, or party. In the other case no such question was raised. § 12. Subpoena duces tecum. — If a person who is not a party to the cause have in his possession any written instru- ment, &c., which could be evidence for either party at the trial, instead of the common subpoena, a subpoena duces tecum should be served upon him, commanding him to bring with him and produce at the trial the instrument named. This writ may be made from the common one by adding the command to bring the specified instrument, and is signed, served, and returned in like manner with the former. The witness, upon being duly summoned and having his fees tendered or paid to him, must attend at the trial with the instrument required, and produce it in evidence, unless he have some lawful or reasonable excuse for withholding it, of the validity of which excuse the court, and not the witness, is to judge. And if he fail to obey the commands of the subpoena, he will undoubtedly be liable as in the case of the common writ.* § 13. Preparation for Trial. — Having taken the proper measures to procure the attendance of witnesses, the next step is the preparation of the evidence for the trial. A careful and thorough preparation of the evidence in a case, before the time of trial, is generally of great importance, and in making this preparation the rules which are to be applied at the trial should be borne in mind. 1 1 Greenl. Ev. § 316. 3 Cow. 381 ; Bours v. Tnckerman, 7 2 Meekins v. Smith, I H. B. 636 ; Johns. 538. Arding «. Flower, 8 T. E. 536 ; Noriis ' 3 Mass. 288 ; 6 Mass. 264. V. Beach, 2 Johns. 294 ; Sanford v. Chase, * Howe's Pr. 230. § 16.] EVIDENCE. 463 The evidence must be relevant to the issue to be tried. The material facts may be proved either by direct evidence, or by circumstances from which they may be inferred. ^ § 14. The Best Evidence must be produced. — By this is meant that no evidence shall be received which is merely substitutionary in its nature, so long as the original evidence can be had. The rule only excludes that evidence which itself indicates the existence of more original sources of information.^ § 15. Hearsay Evidence is Incompetent. — The term " hear- say " is used with reference to that which is written as well as to that which is spoken, and in its legal sense it denotes that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests also in part on the veracity and competency of some other person. Such evidence is held incompetent to establish any fact which in its nature is susceptible of being proved by witnesses who can speak from their own knowledge. A witness cannot be allowed to testify what another person stated to him, either orally or in writing, as evidence of the truth of the statement so made, unless it was the admission of a party to the action adverse to the one calling the witness.^ § 16. The burden of proof is on the party having the affirm- ative to maintain. Generally the plaintiff has the affirmative, and consequently has the burden of proof. Whenever the plaintiff is obliged to produce any proof in order to establish his right to recover, he is generally required to go into his whole case, and prove every fact necessary to maintain such right.* This, like all other rules, has its ex- ceptions, and in many cases it is difficult to determine on whom the burden of proof rests. These are in brief some of the general rules which govern in the trial of a case, and which should be borne in mind in the preparation for it. The evidence in a case consists of documents and the testimony of living witnesses. 1 1 Greenl. Ev. § 51-55. « 1 Greenl. Ev. § 99-183. » 1 Greenl. Er. § 82-89. * I Greenl. Ev. § 74-78. 464 EVIDENCE. [CH. XXXIX. § 17. Impeachment of a Witness. — A witness may be im- peached, — First. By showing the improbabilities of his story by a cross- examination . Second. By disproving the alleged facts stated by him. Third. By general evidence affecting his credibility .^ Fourth. By proof of his conviction of a crime.^ § 18. The party producing a -witness is not allo-wed to impeach his credit by evidence of bad character, but may contradict him by other evidence, and may also prove that he has made at other times statements inconsistent with his present testi- mony ; but before such last-mentioned proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness, and he must be asked whether or not he has made such statements, and, if so, allowed to explain them.* A party to a cause who calls the adverse party as a witness is allowed the same liberty in the examination of such witness as is allowed upon cross-examination.* § 19. Limit of Evidence to impeach Witnesses. — In impeach- ing the credit of a witness, the examination must be confined to his general reputation, and not be permitted as to particu- lar facts. The regular mode of examining into the general reputation is to inquire of the witness whether he knows the general reputation of the person in question among his neighbors, what that reputation is, and whether from such knowledge the witness would believe that person under oath.^ § 20. How Witness may refresh his Memory. — The right of a party or other person, in testifying as a witness, to refer to written instruments or memoranda, is recognized by our courts. Mr. Greenleaf says : " Though a witness can testify only as to such facts as are within his own knowledge and recol- lection, yet he is permitted to refresh and assist his memory by the use of a written instrument, memorandum, or entry in 1 1 Greenl. Ev. § 461. i Pub. St. c. 169, § 20. ' Pub. St. c. 169, § 19. 6 1 Greenl. Ev. § 461. ' 1 Pub. St. c. 169, § 22. § 21.] EVIDENCE. 465 a book. It does not seem to be necessary that the writing should have been made by the witness himself, nor that it should be an original writing, provided that after inspecting it he can speak to the facts from his own recollection." ^ This doctrine is sustained by the decisions of the court in Massachusetts^ and New Hampshire.* The same doctrine is held in New York.* In Vermont, it is held to be suflBcient if the witness shall be able to state that the memorandum is correct.^ The memorandum is not evidence, although the witness swears that he believes it to be correct. It may be used only to refresh his recollection.^ It has been held that a memorandum made by a witness from recollection of dates, amounts, and figures, may be re- ferred to by him to enable him to state with accuracy details which he could not repeat without the aid of the paper.'' A witness may refresh his memory by reading from a schedule prepared by his clerk, in his presence and under his direction.^ In New Hampshire, a witness whose deposition had been previously taken was permitted to refresh his recollection by referring to a copy of his deposition.^ A witness may be re- quired by the court to look at memoranda or papers within his power to aid his recollection.!" Whether a party shall cross-examine a witness upon a paper used by him to refresh his memory before the witness has so used it, or whether he shall wait for that purpose till the general cross-examination, is held in Massachusetts to be within the discretion of the court.!! § 21. Books of Original Entries. — Another kind of evidence is entries made by a party himself in his own shop-book, sup- ported by the suppletory oath.^^ 1 1 Greenl. Ev. § 436. « Butler v. Benson, 1 Barb. (N. T.) 2 Coffin V. Vincent, 12 Cush. 98-100. 526. 2 Huckius ly. People's, &c. Co., 31 ' Fhinney v. Andrews, 41 Vt. 631. N. H. 238. 8 State v. Lull, 37 Me. .246. ^ Lawrence v. Baker, 5 Wend. (N. ' George v. Joy, 19 N. H. 544. Y.) 301 ; Huff V. Bennett; 6 N. Y. 337 ; ^ Chapin v. Lapham, 20 Pick. 467. Zimmerman v. Schonfeldt, 6 N. Y. 147. i' Commonwealth v. Burke, 114 Mass. 5 Downer v. Eowell, 24 Vt. 343. 261. 12 1 Greenl. Ev. § 117-119. 30 466 EVIDENCE. [CH. XXXIX. Before the books of a party can be admitted in evidence they are to be submitted to the inspection of the court ; and if they do not appear to be a register of the daily business of the party, and to have been honestly and fairly kept, they are excluded. The party must also swear that the articles therein charged were actually delivered, and the labor and services actually performed ; that the entries were made at or about the time of the transactions, and are the original entries thereof, and that the sums charged and claimed have not been paid.^ Entries thus made are not, however, received in all cases as satisfactory proof of the charges, but only as proof of things which, from their nature, are not generally susceptible of better evidence. They are satisfactory proof of goods sold and delivered from a shop, and of labor and services person- ally performed.^ ' The admission of the party's own books and his own entries has long been permitted in Massachusetts. The frequency as well as importance of the use of books of account, supported by the suppletory oath of the party claiming under them, is very much diminished by the statutes which allow parties to be witnesses in all cases for themselves, or to be called by any other party in the case. Now a party can testify to the correctness of the charges in his account in all cases, and can use the original entries or copies to refresh his recollection, iu whatever form the ac- count may have been kept. § 22. The report of an auditor in a case is prima facie evi- dence of such matters as are expressly embraced in the order of his appointment. It is, however, only prima fade evi- dence.3 It does not change the burden of proof.* In the case of the Star Glass Co. v. Morey,^ an action on an account annexed which was referred to an auditor whose re- port was put in evidence on the trial, the presiding judge instructed the jury that the report was legal evidence, which 1 1 Greenl. Ev. § 119, and note. * Morgan v. Morse, 18 Gray, 1,50; 2 1 Greenl. Ev. § 118, 119, and note. Bradford v. Stevens, 10 Gray, 379. 8 Pub. St. c. 159, § 51. s 108 Mass. 570. § 24.] EVIDENC3. 467 settled the controversy, and entitled the parties to have judg- ment accordingly, unless one party or the other should satisfy them that the auditor was in error. It was held that this instruction afforded no ground of exception. When an auditor's report in favor of one party states par- ticular facts from which a conclusion in favor of either party may be inferred, the jury, from these facts, without other evidence, may give a verdict against the conclusion of the auditor;^ but the findings of an auditor of facts have the weight of a verdict, and, especially when they depend upon a conflict of testimony, are not to be set aside unless they clearly appear to be erroneous.^ The findings of an auditor may be reversed by the court, and the appropriate way of bringing them before the court for that purpose is by specific exceptions to his finding, and by his report of the evidence upon the points on which ex- ceptions are taken. ^ § 23. Documents. — If documents, such as statutes, public or private, records of any courts, judgments, foreign or do- mestic, verdicts, &c., be required in the course of a trial, the party needing them will procure the originals, if necessary, at their place of deposit ; or copies, where they are admissible, authenticated according to the laws of evidence in the vari- ous cases.* If deeds, or wills, or writings not under seal, or books of accounts, or private papers of any sort, be required, the party, if they be not controlled by his adversary, will obtain and produce the originals, or copies, where allowable, duly au- thenticated ; and, in cases where the execution of such papers must be proved, will provide himself with the legal evidence of the subscribing witnesses, or otherwise, to that point, by oral testimony or by depositions.'' § 24. " Signatures to written instrument declared on or set forth as a cause of action or ground of defence or set-off in an action at law, will be taken as admitted, unless the party 1 Emerson v. Patch, 129 Mass. 299. ' lb. 2 Paddock o. Commercial Ins. Co,, » 1 Greenl. Ev. § 81. 104 Mass. 521, 631. '1 Greenl. Ev. § 82-89. 468 EVIDENCE. [CH. XXXIX. sought to be charged thereby shall file in court, within the time allowed for answer, a special denial of the genuineness of such signature, and a demand that the party relying there- on shall prove the same at the trial." ^ § 25. View by Jury. — Another mode of informing a jury of the facts in a case on trial frequently resorted to is by a view of the premises or place in dispute between the parties. It was first allowed in England in several real actions, and subsequently by Statute 4 and 5 Anne, c. 16, § 3, was allowed in other actions where it should appear to the court to be proper and necessary. The design of the proceeding was to enable the jury better to understand the matter in contro- versy between the parties. The practice relating to a view in this country and in England is now generally regulated by statute.^ In Massachusetts, general power is given to the courts, at the request of either party, in any case, to allow a view by jury when it appears to the court that such view is necessary to a just decision ; ^ and it may be ordered by the court in a criminal case.* It is not strictly necessary to apply for a view by the jury until the cause comes into court for trial ; but it is usual and convenient to apprise the adverse party and the court, before the trial comes on, that such a motion is to be made." When circumstances occur in the course of the trial which render a view necessary, it may be granted at the discretion of the court any time before verdict. When a view is to be had, the court appoints two persons (one being named by each party) to show the place in dispute to the jury. An attorney of each party is usually selected for this purpose. An officer is then sworn to take charge of the jury. The persons appointed to attend the jury and show the place in dispute should merely point out such things as they, the jury, desire to see, but not discuss any matter relative to them. 1 Pub. St. c. 167, § 21. . 4 Pnb. St. c. 214, § 11. 2 Stearns's Real Actions, 112. 6 Stearns's Real Actions, 115. 8 Pub. St. c. 170, §43. § 28.] EVIDENCE. 469 It is the duty of the officer having charge of the jury not to permit any discussion before the jury by the agents of the parties, and not to permit any other person to speak to the jury in relation to tlie case, and, when the view is completed, to return the jury into court, unless otherwise directed by the court. If the officer is not expected to return the jury into court immediately after the view, special directions are given to him by the court what to do with them, and he is sworn accordingly.^ § 26. Interrogatories to Parties, and Ans-wers. — A mode of discovering facts and documents from an opposing party is provided by statute. It provides that " 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 interrogatories 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." ^ To such interrogatories there must 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 de- rive some material benefit in the action from the discovery which he seeks, if the same is fairly made, and that the dis- covery is not sought for the purpose of delay .^ Such affidavit is not conclusive evidence that the interrog- atories are material.* § 27. Answers to Interrogatories. — The statute provides that 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, fur- ther time is allowed by the court ; and that the answers shall be in writing, signed by the party and upon his oath.^ § 28. If the party to a suit is a corporation, the opposite party may examine the president, treasurer, clerk, or any 1 Stearns's Eeal Actions, 115. ' Foss v. Nutting, 14 Gray, 484. 2 Pub. St. c, 167, § 49. " Pub. St. c. 167, § 51, 52. 8 Pub. St. c. 167, § 50. 470 EVIDENCE. [CH. XXXIX. director or other officer thereof, in the same manner as if he were a party to the suit. Each interrogatory must be answered separately and fully. The party interrogated may introduce into his answer any matter relevant to the issue to which the interrogatory relates.^ § 29. May be filed in Police Courts, &c. — These provisions of the statutes relating, to interrogatories and answers apply to civil actions before trial justices, and before any police, municipal, or district court. §30. Interrogatories may be amended. — The COUrt may allow interrogatories to be amended, and may also in their discretion permit new interrogatories to be filed. A party to an action cannot, however, as a matter of right, file succes- sive sets of interrogatories to the other party and require answers under oath.^ The affidavit annexed to a set of interrogatories is not con- clusive that they are material.^ § 31. What must be Answered. — "A defendant is bound to answer interrogatories as to such matters only as tend to support the plaintiffs claim, and not as to matters which relate exclusively to his own defence. If he neglects or refuses to answer a proper interrogatory, he may be de- faulted. But if matters which he is not as well as matters which he is bound to answer are embraced in a single inter- rogatory, he is not required to take the risk of separating the two ; and cannot under a general order to make further an- swers, with which he has complied in apparent good faith, be defaulted for imperfections in such answers, without a specific order of the court as to the particulars in which they are in- sufficient and opportunity to amend them." * § 32. Several Plaintiffs or Defendants. — Interrogatories may be addressed to one of several plaintiffs, or to one of several defendants, and the answers thereto are admissible in evidence. Each individual is to answer for himself and to 1 Pub. St. c. 167, § 53, 54. 8 Foss v. Nntting, 14 Gray, 484. 2 Hancock v. Franklin Ins. Co., 107 * Wetherbee v. Winchester, 128 Mass. Mass. 113, 116. 293-295. § 36.] EVIDENCE. 471 make oath to the truth of his own statements, and neither of them can be required to testify of facts not known by him, though they may be within the knowledge of the other parties to the suit.^ § 33. Such an answer is competent evidence against the per- son making it of the facts stated therein, although it was taken and filed in another suit, and although the issues in the two suits be different.^ It is within the discretion of the court to extend the time for filing an answer, or to refuse to do so.^ § 34. Proceedings ■whete a book or other writing is called for are prescribed by statute.* § 35. A Party need not criminate himself. — The party in- terrogated is not obliged to answer a question or produce a document the answering or producing of which would tend to criminate himself, or to disclose his title to any property the title whereof is not material to the trial of the action in the course of which he is interrogated, or to disclose the names of the witnesses by whom or the manner in which he proposes to prove his own case.® It is not sufficient for a party interrogated to say that he declines to answer because it would tend to criminate him ; it must be shown affirmatively that it would do so. He must answer under oath that such would be the effect of his answer.® § 36. " If an answer contains irrelevant matter, or is not full and clear, or if an interrogatory is not answered, and the party interrogated refuses to expunge or amend, or to answer a particular interrogatory, the court or a justice thereof may on motion order such irrelevant matter to be expunged, or such imperfect answer to be made full and clear, or such in- terrogatory to be answered, within such time as may seem reasonable." '^ " When an answer is adjudged irrelevant or insufficient, or 1 Stetson V. Walcott, 15 Gray, 545. ' Pub. St. c. 167, § 56. » VPiUiams V. Cheney, 3 Gray, 215. « Hobbs v. Stone, 5 Allen, 109, 110. 8 Harding v. Noyes, 125 Mass. 572. ' Pub. St. v,. 167, § 57. * Pub. St. c. 167, § 55. 472 EVIDENCE. [CH. XXXIX. when a party is ordered to answer an interrogatory, such or- der 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." ^ § 37. "If a party neglects or refuses to expunge, amend, or an- swer 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." ^ § 38. During the trial of any action the court may allow in- terrogatories 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 inter- rogatories 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.^ In actions before police, municipal, or district courts the in- terrogatories and answers may be filed by either party, at any time after the commencement of the action, and the answers shall be filed within such time as such courts or trial justices shall respectively order.* § 39. Notice to produce Papers. — If any written instrument which would be evidence for one party, if produced, be in the possession or control of the other, the former should serve the latter, or his attorney or agent, with a notice to produce it at the trial. There is no particular form of this notice, but a copy of it should be kept, attested to be a true one, by the person who delivers the original. If the party who has the instrument do not produce it, the other, upon proving the service of the notice, will be permitted to prove the contents of the instrument by a copy or other secondary evidence, in the same manner as if it had been destroyed or lost. A party who produces a paper at a trial, on the call of the adverse party, is entitled to read such paper in evidence for himself, after the party calling for it has inspected it and de- clined to use it, if it appear to be the identical instrument 1 Pub. St. c. 167, § 58. 8 Pub. St. c. 167, § 60. 2 Pub. St. c. 167, § 59. i Pub. St. c. 167, § 93. § 40.] EVIDENCE. 473 called for.^ If a paper duly called for is not produced by the party having it, its contents may be proved by parol.^ The regular time for calling for the production of papers is not until the party who requires them has entered upon his case.^ There are three cases in which such notice to produce is not necessary. First, where the instrument produced and that to be proved are duplicate originals; secondly, where the instrument to be proved is itself a notice, such as a no- tice to quit, or notice of the dishonor of a bill of exchange ; and, thirdly, where, from the nature of the action, the defend- ant has notice that the plaiutiif intends to charge him with the possession of the instrument, as, for example, in trover, for a bill of exchange. And the principle of the rule does not require notice to the adverse party to produce a paper belonging to a third person, of which he has fraudulently ob- tained possession ; as where, after service "of a subpoena duces tecum, the adverse party had received the paper from the wit- ness, in fraud of the subpcena. In respect to the time when such notice should be given, it is the general rule that it should be served a reasonable time before the commencement of the trial.* And it must be such as under the known circumstances of the case will enable the party to comply with the call. Proof that the party has the instrument in court does not, except in extraordinary cases, render notice to produce it unnecessary.^ § 40. To prevent a. 'Witness from attending Court is a Con- tempt. — Preventing, or using means to prevent, a witness from attending court who has been duly summoned, is also punishable as a contempt of court. On the same principle, it is deemed a contempt of court to serve process upon a witness even by a summons, if it be done in the immediate or constructive presence of the court upon which he is attending, though any service elsewhere without personal restraint, it seems, is good.^ ' Reed v. Anderson, 12 Cush. 481. « 2 Tidd's Pr. 803; 1 Greenl. Ev. ' Bemis v. Charles, 1 Met. 440. § 562. " 1 Greenl. Ev. § 562. ^ i Greenl. Ev. § 562. 6 1 Greenl. Ev. § 316. 474 EVIDENCE. [CH. XXXIX. § 41. Privileged Communications. — Communications made by a person to his confidential counsellor, solicitor, or attor- ney are held to be privileged communications, and the party to whom they are made cannot be compelled to disclose them. Neither can such party be compelled to disclose papers de- livered to him or letters sent to him in that capacity.^ § 42. Attesting Witnesses to a VTiU. — The provisions of sects. 18, 19, and 20 of the chapter 169 of the Public Stat- utes relating to witnesses do not apply to the attesting wit- nesses to a will or codicil.^ The statutes require that a will shall be attested and sub- scribed by three or more competent witnesses. The witness must be competent at the time of his attestation. His subse- quent incompetency will not prevent the probate of the will.^ Competent witnesses are those who are not disqualified by reason of interest, crime, or deficiency of understanding. § 43. Competency of Attesting Witnesses. — The statutes provide that a mere charge on the lands of the testator for the payment of his debts shall not prevent his creditors from being competent witnesses to his will ; but that a beneficial devise or legacy made in a will to a person who is a subscrib- ing witness thereto, or to the husband or wife of such a per- son, shaE be void unless there are three other competent subscribing witnesses to such will.* An interest to disqualify a witness must be a vested in- terest, not contingent, and must also be pecuniary.^ A person named as executor in a will is competent as a witness to it.^ A wife is not a competent witness to her husband's will,^ nor to a will which contains a devise to her husband.® § 44. Proof of Laws, Records, Documents, &c. — The stat- utes prescribe the method of proving records and judicial proceedings of courts, acts of incorporation, statutes, books, papers, documents, the unwritten or common law of any State, or territory, or country.^ 1 1 Greenl. Ev. § 236-252. « Wyman v. Symmes, 10 Allen, 153. '^ Pub. St. c. 127, § 1. 7 Peas v. Allis, 110 Mass. 157. « Pub. St. c. 127, § 2. 8 Sullivan v. Sullivan, 106 Mass. 474. * Pub. St. c. 127, § 2, 3. 9 Pub. St. c. 169, § 67-74. 5 Hawes v. Humphrey, 9 Pick. 350. § 2.] DEPOSITIONS. 475 CHAPTER XL. DEPOSITIONS. § 1 . What Depositions may be taken. — When a witness whose testimony is wanted in a civil cause or proceeding pending in this Commonwealth lives more than thirty miles from the place of trial, or is about to go out of the Common- wealth and not to return in time for the trial, or is so sick, infirm, or aged as to make it probable that he will not be able to attend at the trial, his deposition may be taken.^ So, the deposition of a witness without this Commonwealth may be taken.2 A party to a suit may take his own deposition, or that of the adverse party, to be used in an action between them,^ and having taken one deposition of such party or of a witness, may take a second deposition of the same person.* The rules of the courts provide that " depositions may be taken within the Commonwealth, for the causes and in the manner by law prescribed, in term time ; provided they be taken in the town in which the court is holden, and at an hour when the court is not actually in session ; but the court may, upon good cause shown, specially order a deposition to be taken at any other time or place." ^ Depositions may also be taken to perpetuate testimony.^ § 2. Modes of taking Depositions. — Two modes of taking depositions to be used in actions or proceedings pending are prescribed by statute. First, by causing the deponent to appear before a magis- 1 Pub. St. c. 169, § 24. * Akers v. Demond, 103 Mass. 318. 2 Pub. St. c. 169, § 40. 6 Rules of S. J. Court, § 19 ; Eules 8 Pub. St. c. 169, § 65; Chase v. of Superior Court, § 9. Breed, 5 Gray, 441. e Pub. St. c. 169, § 45. 476 DEPOSITIONS. [CH. XL. trate at a certain time and place, and giving notice to the adverse party to be present. Second, by filing interrogatories in the office of the clerk of the court, and giving notice there- of to the adverse part}', who may also file cross-interroga- tories, and when these are filed a commission is issued to take the deposition without the presence of either party. Deposi- tions of witnesses in the State are taken according to the first mode ; depositions of witnesses out of the State are usually taken by the second mode. § 3. Mode of taking in the State. — At any time after the cause is commenced by the service of process, or after it is submitted to arbitrators or referees, either party may apply to a justice of the peace, who shall issue a notice to the ad- verse party to appear before said justice or any other justice of the peace, at the time and place appointed for taking the deposition, and to put such interrogatories as he thinks fit.^ §4. Notice to Adverse Party and Service thereof. — "The notice may be served on the adverse party, or his agent or attorney ; and when there are several plaintiffs, defendants, or parties on either side, a notice served on either of them shall be sufficient. The notice must be served by delivering an attested copy thereof to the person to be notified, or by leaving such copy at his place of abode, not less than twenty-four hours before the time appointed for taking the deposition, and also allow- ing time for his travel to the place appointed, not less than at the rate of one day, Sundays excluded, for every twenty miles' travel. Instead of the written notice before prescribed, the notice may be given verbally by the justice taking the deposition, or it may be wholly omitted if the adverse party or his attorney in writing waives the right to it.^ But where the adverse party does not appear to defend within the time required by law, the justice may take the deposition without giving any notice,^ Notice to take the depositions of several witnesses may be 1 Pab. St. c. 169, § 25. 3 St of 1883, c. 188, § 1. 2 Pub. St. c. 169, § 26-28. § 8.] DEPOSITIONS. 477 included in one notice, and the depositions so taken may be enclosed together in one envelope and directed to the court. It must appear in the oiificer's return that notice of the time and place appointed for taking a deposition had been served on an adverse party. ^ Eeading the notice to the per- son to be notified is not sufficient.'^ § 5. Oath to Deponent. — The deponent must be svrorn or affirmed to testify the truth, the whole truth, and nothing but the truth, relating to the cause for which the deposition is taken. He may then be examined by the justice and the parties if they think fit, and his testimony must be taken in writing. § 6. Examination of Deponent. — The party producing the deponent has a right first to examine him, either upon verbal or written interrogatories, on all the points which he deems material ; the adverse party may then examine him in like manner ; after which either party may propose such further interrogatories as the case may require. § 7. Deposition, by whom written. — The deposition must be written by the justice, or by the deponent, or by some dis- interested person, in the presence and under the direction of the justice, and it must be carefully read to or by the depo- nent, and then be subscribed by him. § 8. Certificate of Magistrate, &c. — The justice must annex to the deposition a certificate of the time and manner of tak- ing it, the person at whose request, the cause or suit for which it was taken, and the reason for taking it, and stating also whether the adverse party attended, and, if not, stating the notice, if any, that was given to him."* The certificate must show that the positive requirements of the law have been complied with regarding the time and manner of taking the deposition ; otherwise it will not be admissible in evidence, if objected to by the opposite party.* An amendment of the certificate may be allowed by the court.^ I Hunt V. Lowell Gas Light Co., 1 * Simpson v. Carlton, I Allen, 109, Allen, 343. 116. '■i Young 11. Capen, 7 Met. 289. ^ Hitchings v. Ellis, 1 Allen, 475, ' Pub. St. c. 169, § 29-32. 476. 478 DEPOSITIONS. [CH. XL. It is advisable always to annex the certificate to the depo- sition by a seal or some other mode of actual attachment. But it is held that where books are made a part of a deposi- tion and were sealed up with the certificate and other papers in an envelope, the deposition was admissible in evidence.^ § 9. " The deposition must be delivered by the justice to the court, arbitrators, referees, or other persons before whom the cause is pending, or enclosed and sealed by him, and directed to them, and must remain sealed until opened by them." ^ The certificate of the clerk of a court of record that a deposition has been opened and filed by him is sufficient evidence that it has been duly returned, filed, and opened by him.^ § 10. The Magistrate should be free from Interest. — He should not only be free from any interest in the event of the suit in which the deposition is taken, but he should also be free from any prejudice against or in favor of either of the parties to it. The relationship of the magistrate to one of the parties has been held not to disqualify him from taking a deposition in a cause. In Vermont, it is held that a son-in-law of a party is not disqualified.* It was also so held in Massachusetts in Chandler v. Brainard.^ In the last-named case the court, in the opinion, remarks that " in general it is reprehensible in a magistrate to take testimony in a cause where he is nearly related to one of the parties." In New Hampshire, it is held that depositions taken before an uncle of one of the parties to a suit cannot be admitted in evidence.^ So where a justice acted as attorney for the plaintiff in taking a deposition, and afterwards took deposi- tions as a justice, it was held that he was incompetent, but that the objection not being made in due time the depositions should be admitted.' In Massachusetts, a deposition that would otherwise have been, rejected was admitted where the 1 Shaw V. McGregory, 105 Mass. 96. 6 14 pjck. 285. 2 Pub. St. c. 169, § 33. « Bean v. Quimby, 5 N. H. 94. 8 Rodn V. Hapgood, 8 Gray, 394. ' Whichler v. Whichler, 11 N. H. * Heacock v. Stoddard, 1 Tyler, 344. 348. § 12.] DEPOSITIONS. 479 ground of objection was known, but not made for a year after- wards.^ A deposition was received where the magistrate had aided one of the parties as a friend by his advice.^ So where a deposition was taken before a magistrate who had previously been of counsel in the case, but was not so at the time of tak- ing the deposition, and had no interest in the case, it was held that he was legally competent to take it.^ § 11. The deposition of a witness without the Commonwealth maybe taken under a commission issued to one or more com- petent persons in another state or country by the court in which the cause is pending; or it may be taken before a commissioner appointed by the governor for that purpose in any part of the United States or in a foreign country ; and in either case the deposition may be used in the same manner and subject to the same conditions and objections as if it had been taken in this Commonwealth.* Every deposition taken before commissioners must be taken upon written interrogatories, to be exhibited to the adverse party or his attorney, and cross-interrogatories to be filed by him if he thinks fit.^ But where the adverse party does not appear to defend his cause such interrogatories need not be exhibited to him, nor notice given him of the same.^ It is a uniform practice to take several depositions under the same commission and upon the same set of interroga- tories.'^ § 12. Depositions taken by Commission. — The mode of pro- cedure is prescribed by the 17th rule of the Supreme Judicial Court which is as follows : — " The court will grant commissions to take the depositions of witnesses without the Commonwealth ; and either party may, on application to the clerk, obtain a commission, which shall be directed to any commissioner appointed by the gov- ernor of the Commonwealth to take depositions in any other of the United States ; Or upon the order of the court in term 1 Farrow u. Commonwealth Ins. Co., * Pub. St. c. 169, § 40. 18 Pick. 53. 5 Pub. St. c. 169, § 41. 2 Coffin V. Jones, 13 Pick. 441. « St. of 1883, § 2. 8 Wood V. Cole, 13 Pick. 279. ' Howe v. Pierson, 12 Gray, 26. 480 DEPOSITIONS. , [CH. XL. time, or by the cleik in vacation, after notice to the adverse party ; or by agreement filed in the clerk's office, the commis- sion may be directed to any justice of the peace, notary pub- lic, or other officer, legally empowered to take depositions or affidavits in the state or country where the deposition is to be taken. In each case the depositions shall be taken upon interrogatories, to be filed by the party applying for the com- mission, and upon such cross-interrogatories as shall be filed by the adverse party ; the whole of which interrogatories shall be annexed to the commission. The party applying for the commission shall in each case file his interrogatories in the clerk's office, and give notice thereof to the adverse party, or his attorney, seven days at least before taking out the com- mission, and one day more for every ten miles that such party or his attorney shall live from the clerk's office. And when a deposition shall be taken and certified by any person as a justice of the peace or other officer as aforesaid, by force of such commission, if it shall be objected that the person so taking and certifying the same was not such officer, the bur- den of proof shall be on the party so objecting ; and, if a like objection shall be made to a deposition taken without such commission, it shall be incumbent on the party produ- cing the deposition to prove that it was taken and certified by a person duly authorized." ^ The sixth rule of the Superior Court is substantially the same. The seventh rule of the Superior Court is as follows : — " In all cases where depositions shall be taken on inter- rogatories, neither party shall be permitted to attend at the taking of such deposition, either himself, or by an attorney or agent ; nor be permitted to communicate by interrogatories or suggestions with the deponent, whilst giving his deposi- tion. It shall be the duty of the commissioner to take such deposition in a place separate and apart from all other per- sons, and to permit no person to be present during such examination, except the deponent and himself, and such dis- interested person, if any, as he may think fit to appoint as a 1 Pub. St. c. 169, § 41. § 13.] DEPOSITIONS. 481 clerk to assist him in reducing the deposition to writing. And it shall be the duty of the commissioner to put the several interrogatories and cross-interrogatories to the deponent in their order, and to take the answer of the deponent to each, fully and clearly before proceeding to the next ; and not to read to the deponent, nor permit the deponent to read, a succeeding interrogatory, until the answer to the preceding has been fully taken down. And it shall be the duty of the clerk, on issuing a commission to take a deposition on. inter- rogatories, to insert the substance of this order therein ; or to annex this order, or the substance thereof, to the commission, by way of notice and instruction to the commissioner." The eighteenth rule of the Supreme Judicial Court, except some verbal variations which do not change the effect of the rule, is the same. § 13. The commission is issued under the seal of the court from which it issues, is tested in the same manner as a writ from such court, and is directed generally to some particular commissioner or commissioners by name, as the court may or- der or the parties may agree, requesting them to take the answers to the interrogatories annexed to the commission, and to return the whole, &c. The commission, when duly prepared, is delivered by the clerk to the party who applied for it, by whom it is forwarded to the commissioners. When executed, it is returned by them under seal, to the clerk's oifice ; and when there it is opened, filed, and must be kept in the same manner as depositions taken in the other mode. The commission generally specifies the names of the com- missioners, and also the names of the witnesses, whose depo- sitions are to be taken, and it should always specify the latter, when they are known.^ A commission, however, may be issued directed to any magistrate, to take the deposition of any witness that may be produced ; but where either party applies for such a general commission, the opposite party, on application to a judge of the court at his chambers, may procure an order to the clerk ' Bryant v. Commonwealth Ins. Co., 9 Pick. 485, 487. 31 482 DEPOSITIONS. [CH. XL. to insert a direction that he, or his agent at the place where the deposition is taken, shall have notice of the time and place of the taking thereof. And if such direction be not inserted in the commission and such notice be not given, the deposition will be rejected.^ § 14. Opening and filing Depositions. — The sixteenth rule of the Supreme Judicial Court is as follows : — "All depositions shall be opened by the clerk, when pre- sented for that purpose, either in term time or vacation ; and he shall certify the day on which any deposition is opened, and may deliver the same to the party for whose use it is taken. The party for whose use it is taken shall not after- wards use the deposition, unless the same is filed in fourteen days from the time it is so opened ; and, when the deposition is filed, the day of filing shall be noted by the clerk. The deposition shall afterwards be in his custody, subject to the order of the court, as other documents in the case ; and when a deposition has been filed, if not read on the trial by the party taking it, it may be used by the other party, if he sees fit, he paying the costs of taking the same : provided, how- ever, that if, by accident or unforeseen cause, the party shall be prevented from filing his deposition within fourteen days, the court may allow it to be filed afterwards, on motion, and sufficient cause shown : and provided further, that in all cases the court may order a deposition in the possession of any party to be opened and filed on the application of any party against whom the same is taken, at such time as the court shall direct : and if such deposition shall not be opened and filed in pursuance of the order of the court, it shall not be used on the trial." The tenth rule of the Superior Court is substantially the same. § 15. Other Modes of taking Depositions. — Depositions and affidavits may be taken out of the Commonwealth in any other manner than that here described, and if taken before a notary public or other person authorized by the laws of any other State or country to take depositions, may be admitted 1 Howe's Pr. 238. § 17.] DEPOSITIONS. 483 or rejected at the discretion of the court ; but no such deposi- tion or affidavit will be admitted unless it appears that the adverse party had sufficient notice of the taking thereof, and opportunity to cross-examine the witness, or that from the circumstances of the case it was impossible to give him such notice .1 § 16. No exception lies to the admission or rejection of depo- sitions so admitted or rejected at the discretion of the court.^ In Burt V. Allen,^ Gray J. said : " The party in whose be- half a foreign deposition is taken is not entitled to use it as a matter of right, unless it is taken before a commissioner and with all the forms prescribed in the case of a domestic depo- sition. But if he attempts to have it so taken and fails in some particular by reason of inadvertence or ignorance of the magistrate or other cause, it is within the discretion of the court to admit the deposition if the magistrate was author- ized by the law of his own State to take it, and the adverse party had notice and opportunity to cross-examine the wi1> nesses if possible." In this case the deponent was sworn to the truth of the deposition, but it did not appear that he was sworn before he was examined. The deposition was admitted. § 17. Informalities in Depositions. — Numerous cases may be found in the reports where depositions have been held to be properly admitted without a full compliance with all the formalities required by the statutes, when the adverse party had sufficient notice and opportunity to cross-examine the witness. The informalities are as various as the cases are numerous.* Depositions have been rejected when a deposition was taken on commission before a justice of the peace in Ver- mont, and the defendant had notice, but was not present, and in the caption or deposition no reference was expressly made 1 Pub. St. c. 169, § 43. Stiles v. Allen, 5 Allen, 320; Tyng v. 2 Woods V. Clark, 24 Pick. 35, 41 ; Thayer, 8 Allen, 391, 397 ; Burt v. Al- Stiles V. Allen, 5 Allen, 320. len, 103 Mass. 41 ; Sabine v. Strong, » 103 Mass. 41, 44. 6 Met. 270, 278 ; Quinley v. Atkins, 9 ' Eeed o. Boardman, 20 Pick. 441 ; Gray, 370. Savage v. Birckhead, 20 Pick. 172; 484 DEPOSITIONS. [oh. XL. to the commission or to the interrogatories or cross-interro- gatories annexed thereto : ^ when the deposition was returned to the court unaccompanied by the commission and interro- gatories.^ The regulations for taking depositions are not deemed con- ditions precedent, a compliance with which must be shown by the caption : they are to be regarded as instructions to guide and regulate the proceedings of the commissioner in the execution of his trust. If there should appear such a considerable departure from the directions as to show a gross neglect or wilful violation of duty, or to indicate any par- tiality, misconduct, or impropriety on the part of the com- missioner, it will be the duty of the judge at the trial to reject the deposition .^ § 18. A -witness may be Bununoned and compelled tO give his deposition in a cause pending in a court in any other State or government ; which deposition may be taken before a justice of the peace in this Commonwealth, or before com- missioners appointed under the authority of the State or gov- ernment in which the suit is pending; and if the deposition is taken before such commissioners, the witness may be sum- moned and compelled to appear before them by process from a justice of the peace in this Commonwealth.* § 19. When Objections to Depositions should be made. — " Every objection to the competency or credibility of the de- ponent, and to the propriety of any questions put to him, or of any answers made by him, may be made when the depo- sition is produced in the same manner as if the witness were personally examined on the trial : Provided, that when a depo- sition is taken upon written interrogatories, all objections to any interrogatory shall be made before it is answered ; and if the interrogatory is not withdrawn, the objection shall be noted thereon, otherwise the objection shall not be afterwards allowed." ^ Objections to the form of an interrogatory cannot be taken 1 Davis B. Allen, 14 Pick. 313. < Pub. St. c. 169, § 44 ; Common- 2 Woods V. Clark, 24 Pick. 35. wealth v. Smith, 1 1 Allen, 243. 8 Sabine o. Strong, 6 Met. 279. 6 paj,. St. c. 169, § 35. § 21.] DEPOSITIONS. 485 for the first time when the deposition is offered in court,^ but objections to the competency of interrogatories and answers in a deposition may be first made at the trial.^ When a deposition is taken before a justice of the peace in the State, objections to the form of interrogatories should be made at the time and noted on the deposition. When a de- position is to be taken out of the State pursuant to a commis- sion, objections to the form of interrogatories must be made before the commission issues.^ § 20. Depositions in the United States. — " The testimony of any witness may be taken in any civil cause depending in a District or Circuit Court by deposition, de bene esse, when the witness lives at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than one hundred miles from the place of trial before the time of trial, or when he is ancient and infirm." * The statute prescribes the manner of taking the deposition. " In any case where it is necessary, in order to prevent a fail- ure or delay of justice, any of the courts of the United States may grant a dedimus potestatem to take depositions according to common usage ; and any Circuit Court, upon application to it as a court of equity, may, according to the usages of chan- cery, direct depositions to be taken in perpetuam rei memo- riam, if they relate to matters that may be cognizable in any court of the United States." ^ A commission or letter rogatory may be issued to take testimony of a witness in a foreign country.^ § 21. Rules as to taking Depositions. — In taking deposi- tions in any of the States, care should be taken to conform in all respects to the requirements of the statutes in the follow- ing particulars : — First. There must be an application to a proper magis- 1 Akers v. Demond, 103 Mass. 318. * U. S. Eev. St. § 863. 2 Atlantic Ins. Co. v. Fitzpatrick, 2 6 XJ. S. Kev. St. § 866. Gray, 279. 6 U. S. Kev. St. § 875. « lb. ; Allen v. Babcock, 15 Pick. 56. 486 DEPOSITIONS. [CH. XL. trate for a notice to the adverse party. The magistrate so applied to need not be the one before whom the depo- sition is taken, but may be the same or any other designated by the statute, at the election of the party making the application. Second. Such notice must be in due form, and must desig- nate the time and place for taking the deposition and the action in which it is intended to be used. Third. The time and place must be suitable and in con- formity to the statutes. Fourth. The notice must be duly served on the adverse party. Fifth. The attendance of the deponent must be procured. This may be voluntary, or he may be summoned by a sub- pcena. Sixth. The deponent must be sworn in the manner and form required by law. Seventh. The deposition, when finished, should be signed by the deponent. Eighth. The magistrate should annex to the deposition his certificate stating that the deponent was sworn according to law ; that the adverse party was notified to attend, and did or did not attend as the case may be ; the cause for taking the deposition, and the name of the case in which it is to be used, and the names of the parties thereto ; and the court or tribunal in which it is to be tried, and the time when, and place where the deposition was taken, and any other fact required by the statutes of the State where it is taken. Ninth. The deposition should be sealed up by the magis- trate and directed to the court or tribunal before which it is to be used. Tenth. The magistrate should also indorse on the en- velope enclosing the deposition a certificate giving the name of the deponent, and stating that the deposition was taken by him to be used in the case of v. , pending in, &c. Eleventh. The magistrate should then cause the deposi- tion so taken, certified, and directed, to be delivered to the § 24.] DEPOSITIONS. 487 court or tribunal to which it is directed. The form of the caption and certificate, and the manner of returning the depo- sition to the court, are prescribed by the statutes. § 22. Deposition may be used in other Suits. — " When a plaintiff in a suit discontinues it or becomes nonsuit, and another suit is afterwards commenced for the same cause be- tween the same parties or their respective representatives, all depositions lawfully taken for the first suit may be used in the second in the same manner and subject to the same con- ditions and objections as if originally taken for the second suit, if the deposition was duly filed in the court where the first suit is pending, and has remained in the custody of the court from the termination of the first suit until the com^ mencement of the second." ^ So also when a suit is removed to a higher court by appeal.^ § 23. Depositions to perpetuate Testimony. — The statutes provide that " when a person is desirous to perpetuate the testimony of a witness, he shall make a statement in writing setting forth briefly and substantially his title, claim, or in- terest in or to the subject concerning which he desires to perpetuate tlie evidence, and the names of all other persons interested or supposed to be interested therein, and also the name of the witness proposed to be examined ; and shall de- liver said statement to two justices of the peace, one of whom shall be either a judge or registrar of probate and insolvency, a clerk of the Supreme Judicial Court, a master in chancery, or a counsellor at law, requesting them to take the deposition of said witness.^ § 24. Notice, and how given. — " The justices shall there- upon cause notice to be given of the time and place appointed for taking the deposition, to all persons mentioned in said statement as interested in the case. The notice shall be given in the manner prescribed in the' statutes respecting notice upon taking a deposition in this State to be used in a cause here pending ; and when, in the opinion of the justices, 1 Pub. St. c. 169, § 36. 8 Pub. St. C. 169, § 45. " Steele v. Carson, 22 Pick. 309. 488 DEPOSITIONS. [CH. XL. no sufficient provision is made by law for giving notice to parties adversely interested, they shall cause such reasonable notice to be given as they deem proper." ^ " They must also order such reasonable notice as they shall deem proper to be given to all the persons mentioned therein as adversely interested in the case and living without the Commonwealth." ^ § 25. If objection is made to taking the deposition by the ■witness or any person interested, the justices must not pro- ceed to take it " unless on hearing the parties it is made satisfactorily to appear that such testimony may be material to the petitioner, and is not sought for the purpose of dis- covery, or of using the same in any suit then pending, or thereafter to be brought against said witness ; and that the petitioner is in danger of losing the same before it can be taken in any suit wherein his right, title, interest, or claim can be tried. In all cases the petitioner, his agent, or attor- ney, shall, at the request of such witness, or any person interested in the deposition, be examined on oath in relation to the reasons for taking the same." ^ § 26. Oath and Examination. — " The deponent shall be sworn and examined, and his deposition shall be written, read, and subscribed in the same manner as is prescribed respect- ing other depositions before mentioned ; and the justices shall annex thereto a certificate under their hands of the time and manner of taking it, and that it was taken in perpetual re- membrance of the thing ; and they shall also insert in the certificate the names of the person at whose request it was taken, and of all persons who were notified to attend, and of all who did attend the taking thereof." * § 27. Deposition, &c. to be recorded. — " The deposition, with the certificate, and also the written statement of the party at whose request it was taken, shall, within ninety days after the taking thereof, be recorded in the registry of deeds in the county or district where the land lies, if the deposition 1 Pub. St. c. 169, § 46. See atUe, « Pub. St. c. 169, § 47. P- 476. i Pub. St. c. 169, § 48. 2 St. of 1882, c. 14. § 27.] ; DEPOSITIONS. 489 relates to real estate, otherwise in the county or district where the parties or some of them reside." ^ " If a suit, either at the time of the taking of such deposition or at any time afterwards, is pending between the person at whose request it was taken and the persons named in said written statement, or any of them who were notified as afore- said, or any persons claiming under either of said parties, concerning the title, claim, or interest set forth in the state- ment, the deposition so taken, or a certified copy of it from the registry of deeds, may be used in such suit in the same manner and subject to the same conditions and objections as if it had been originally taken therefor." ^ A deposition taken in perpetuam at the request of A. upon notice to C. cannot be used in an action against B. by C, a stranger, not claiming under A. ; neither can A. use it against any other person than B. or one claiming under him.^ 1 Pub. St. c. 169, § 49. 8 Welles v. Fish, 3 Pick. 74. 2 Pub. St. c. 169, § 50. 490 VENUE. [CH. XLI. CHAPTER XLI. VENUE. § 1. The venue of an action, strictly, is the county from which the jurors are to come to try it. As now used, it gen- erally means the county in which the action is to be brought. In reference to the venue, actions are divided into two classes, local and transitory. § 2. Definition of Local and Transitory Actions. — The com- mon-law rule is stated by Mr. Tidd thus : — " When the action could only have arisen in a particular county, it is local, and the venue must be laid in that county, for if it be laid elsewhere, the defendant may demur to the declaration, or the plaintiff on the general issue will be non- suited at the trial. But where the action might have arisen in any county, it is transitory, and the plaintiff may in gen- eral lay the venue wherever he pleases, subject to its being changed by the court if not laid in the very county where the action arose." ^ In general, actions founded on contracts are transitory ; also actions for injuries ex delicto to the person or personal prop- erty. Real actions, and actions for damages occasioned by injuries to real property, are local.^ § 3. Venue in Massachusetts. — In Massachusetts it is pro- vided by statute that " transitory actions, except in cases in which it is otherwise provided, if any one of the parties lives in the Commonwealth, must be brought in the county where some one of them lives or has his usual place of business ; and if brought in any other county, unless transferred, the writ will abate, and the defendant will be allowed double costs. 1 Tidd's Pr. 427. = 1 Chitty's PI. 273. § 4.] VENUE. 491 If neither party lives in the Commonwealth, the action may be brought in any county." ^ The statutes specify particularly in what county certain classes of actions shall be brought. A reference to these is sufficient for the purposes of this work.^ An action against a sheriff for misfeasance in office is tran- sitory,^ so also is a complaint under the bastardy act.* So an action of contract to enforce the specific performance of an agreement to convey land is transitory and need not be brought in the county where the land lies.^ § 4. 'When a Corporation is a Party. — The statutes provide that " When a corporation, other than a county or the city of Boston, is a party to an action other than those mentioned in the preceding section, such action may be brought as fol- lows : to wit, — " First, When both parties are cities or towns, school dis- trict, or parishes, in the county in which either of the cities, towns, school districts, or parishes is situated. " Second, When the action is between a city, town, school district, or parish and a natural person, either in the county in which such city, town, school district, or parish is situated, or in that in which the other party lives. " Third, When one of the parties is a corporation of any other description than is before mentioned in this section, in any county in which such corporation has an established or usual place of business, or has held its last annual meeting, or usually holds its meetings, or, if the other party is a natural person, in the county where such person lives." ^ This section is identical with Rev. Sts. c. 90, § 16. In Raymond v. Lowell,' Shaw, C. J., said in relation to this provision ; " The object was not to make actions against cor- porations local actions, but to give corporations a species of locality in the nature of a- domicile and to determine where they should be held to be resident for the purpose of being 1 Pub. St. c. 161, § 1 ; St. of 1883, * Gallary v. Holland, 15 Gray, 50. c. 223, § 13. s Davis v. Parker, 14 Allen, 94-98. 2 Pub. St. c. 161. 6 Pub. St. c. 161, § 8. « Pearce v. Atwood, 13 Mass. 324. ' 6 Cush. 529. 492 VENUE. [CH. XLI, sued." " Taking all the statute provisions together, we think a transitory action, by a plaintiff living out of the State, against a town may be brought in any county." In Rhodes v. Salem Turnpike and Salem Bridge Corpora- tion,i Hoar, J., said : " In the case of a railroad, canal, or turn- pike company exercising its franchise in more than one county, and transacting business in each of them, with a local estab- lishment for business purposes, it would seem to be reasonable and proper that the corporation might sue and be sued where its operations were thus practically carried on. " The statute is not intended to promote the convenience of the company only, but also of persons having claims against it. And we can have no doubt that wherever a plaintiff can find the corporation regularly carrying on any part of its busi- ness, there he may bring his suit against it." § 5. In trustee process, when the action is brought in the Supreme Judicial Court or the Superior Court, if all persons named in the writ as trustees dwell or have usual places of business in one county, the writ shall be returnable in such county ; otherwise, it may be returnable in any county in which either of them dwells or has his usual place of business, without regard to the domicile of the other parties.^ When the action is before a police, municipal, or district court or a trial justice, no person can be held to answer as trustee in any other county than that in which he dwells or has his usual place of business.* § 6. Action for Forfeiture. — Every civil action for the recov- ery of a forfeiture (except actions in which the Common- wealth is plaintiff, and actions brought to recover money for the Commonwealth) must be brought in the county in which the offence was committed, unless a different provision is made in the statute imposing the forfeiture.* § 7. Action may be removed. — . When it appears that an action, suit, or proceeding commenced in the Supreme Judicial Court or Superior Court is brought in a wrong county, the court, on motion of either party, may order the same, with all 1 98 Mass. 97. s Pub. St. c. 183, § 4. 2 Pub. St. c. 183, § 3. 4 Pub. St. c. 161, § 11. § 7.] VENUE. 498 papers relating thereto, to be transferred to the proper county, upon such terms to the defendant as the court may deem reasonable ; and it will thereupon be entered and prosecuted in the same court for that county as if originally returnable therein, and all prior proceedings otherwise regularly taken wiU thereafter be valid.^ 1 Pub. St. c. 161, § 12. 494 PETITION FOE THE SETTLEMENT OF TITLES. [CH. XUI. CHAPTER XLII. PETITION FOR THE SETTLEMENT OF TITLES. § 1. Proceedings. — It is provided by statute that " any per- son in possession of real property, claiming an estate of free- hold therein or an unexpired term of not less than ten years, may file a petition in the Supreme Judicial Court, setting forth his estate, whether of inheritance, for life, or for years, describ- ing the premises, averring that he is credibly informed and believes that some person or persons named in the petition make some claim adverse to his estate, and praying that such person or persons may be summoned to show cause why they should not bring an action to try their alleged title. A person who is in the enjoyment of an easement shall be held to be in possession of real property within the meaning and for the purposes of this section." ^ § 2. The Possession of the Petitions must be Exclusive. — In the case of India Wharf v. Central Wharf, ^ Gray, C. J., says : " In order to maintain a petition " under this statute " to com- pel the bringing of an action to try title to real estate, the petitioner must have substantially and practically the exclusive possession. It is not sufficient that he has a mere formal or nominal possession which he can without disadvantage aban- don and himself bring an action against the adverse claimant. " Nor is it sufficient that he might be treated as a disseisor at the election of the latter, for any person asserting a title to land may be so treated at the election of the rightful owner ; and to give such construction to the statute would be to en- able any wrongful claimant to throw upon the rightful owner the burden of establishing his title. The petitioner must 1 Pub. St. c. 176, § 1. 2 117 Mass. 504, 50,5. § 4.] PETITION FOR THE SETTLEMENT OF TITLES. 495 prove that he has the exclusive possession as between himself and the respondent. If, as between them, the possession appears to be mixed or doubtful, the petitioner has not made out a case for compelling the respondent, rather than himself to institute an action to try the title." The possession of the petitioner must be exclusive to that of the respondent.^ One who claims only an estate in remainder after an exist- ing life estate cannot be required under this statute to bring an action to try his title,^ nor can an assignee of an insolvent debtor, to compel the holder of a mortgage of real estate to bring an action to test the validity of his mortgage on the pe- tition of the assignee in insolvency of the mortgagor.^ The mere right or title to an easement is not sufficient to main- tain a petition of a person to quit his title to it. He must have the possession or enjoyment of it and not the mere title.* One who maintains a mill dam under the mill acts has not such an easement in the flowed lands as will enable him to maintain a petition against the land-owner to compel him to try the title.^ § 3. Proceedings on the Petition. — The statutes provide that " upon such petition the court shall order notice to be given to the supposed claimants, and if, upon return of the order of notice duly executed, they make default, or, having appeared, disobey the lawful order of the court to bring an action and try their title, the court shall enter a decree that they be forever debarred and estopped from having or claiming any right or title, adverse to the petitioner, in the premises described.^ § 4. The Petition may be inserted in a AWrit. — It is further provided by statute that " if the petitioner prefers, the peti- tion may be inserted like a declaration in a writ, and served by copy like a writ of original summons. If the persons so 1 Tompkins v. Wyraan, 116 Mass. ■* Bowditch o. Gardner, 113 Mass. 558-561 ; Brown v. Matthews, 117 Mass. 315. 506. ' Boston Mfg. Co. v. Burgin, 114 2 Tisdalew.Brabrook, 102 Mass. 374. Mass. 340, » Dewey v. Bulkley, 1 Gray, 416. 6 Pub. St. c. 176, § 2. 496 PETITION FOR THE SETTLEMENT OF TITLES. [OH. XLn. summoned appear and disclaim all right and title adverse to the petitioner, they shall recover their costs. If they claim title, they shall by answer show cause why they should not be required to bring an action and try such title ; and the court shall make such decree respecting the bringing and prosecuting of such action as may seem equitable and just." 1 1 Pub. St. c. 176, § 2. § 1.] CASES TRIABLE BY SHERIFF'S JURY. 497 CHAPTER XLIII. CASES TEIABLE BY SHEEIEF'S JTJET. § 1. Two Classes of such Cases. — There is a large Tariety of cases, of considerable importance, which may be tried by a jury in the country, at or near the place relating to which the alleged cause of action accrued. These claims may properlj"- be divided into two classes, namely: First, those where persons claim damages for land, or water, or water rights, taken by right of eminent domain for public use, and. Second, those where the taking is not for public use. First Class. Under the first class of these cases may be included claims for damages occasioned either by laying out, locating anew, altering or discontinuing a highway,^ or town way,''^ for securing or protecting a public way or bridge,^ or for land taken by a town or city for gravel or clay pits for materials for construction or repair or improvement of streets and ways,* or for land taken by a town for a town hall,^ or for a cemetery or a burial place,^ or for a schoolhouse lot,' or to be used in the construction of fishways,^ or damages occa- sioned by the making or maintaining of main drains, or com- mon sewers,^ or taking of water or land or easements, or by the construction of a dam or aqueduct or other works for the purpose of supplying water to a city or town.i" Second Class. Under the second class may be included claims for damages for injuries to land which is overflowed by a miU-dam erected on a stream below in the manner and for 1 Pub. St. c. 49, § 3. 6 Pub. St. c. 82, § 1-14. 2 Pub. St. 0. 49, § 6.5, 79. ' Pub. St. c. 44, § 46-49. 8 Pub. St. c, 52, § 16. 8 Pub. St. c. 91, § 7, 8. * Pub. St. c. 49, § 99, 100. » Pub. St. c. 50, § 2, 6. 6 Pub. St. c. 27, § 42. 10 Pub. St. c. 49, § 102. 32 498 CASES TRIABLE BT SHEEIFF'S JURY. [CH. XLIII. the purpose authorized by law ; ^ claims for damages for land taken by a railroad corporation for the use of the corporation, or for injury done by the taking and use of such land under authority given or a special act of the legislature i^ claims for damages occasioned by the construction of lines of electric telegraph along and upon the highways and public roads and across the waters.^ § 2. Commencement of Suit. — A person desiring a trial by jury in either of these classes of claims must commence his proceedings therefor by a petition for a jury. Upon such petition a warrant is issued, directed to the sheriff of the county or his deputy, who is disinterested, or to a special sheriff, requiring him to summon a jury of twelve men to hear and determine the matter of the complaint set forth in the petition, and to decide all such matters as shall legally come before them.* A jury thus summoned and for such purpose is generally known as a sheriff's jury, and is so designated in the statutes. § 3. In what Court the Petition may be filed. — Such peti- tions may in some cases be presented to the county commis- sioners of the proper county, except in the county of Suffolk, where the street commissioners of the city of Boston have within that city similar powers and perform like duties as are exercised and performed by the commissioners of counties in respect to the laying out, altering, locating anew, and discon- tinuing of ways, and to the ordering of specific repairs there- on ; and may assess damages therefor, and award indemnity for damages sustained by reason of such laying out, alteration, locating anew, discontinuance, or order for specific repairs, in like cases and in the same manner as county commissioners are required to perform similar duties.^ And the county commissioners of Middlesex have similar powers in the towns of Revere and Winthrop in the county of Suffolk.® § 4. May be filed in the Superior Court. — The statutes pro- vide that " in all cases in which it is provided by law that a " Pub. St. c. 190, § 4-12. * Pub. St. c. 49, § 32-38. 2 Pub. St. t. 112, § 97-99. 6 Pub. St. c. 49, § 84. 8 Pub. St. c. 109, § 2, 6. 6 Pub. St. c. 49, § 87. § 7.] CASES TRIABLE BY SHERIFF'S JURY. 499 sheriff's jury may be had for any purpose, application for a jury may be made by petition to the Superior Court ; and thereupon, after such notice as said court shall order to the adverse party or parties, a trial may be had at the bar of said court, in the same manner as other civil cases are there tried by jury. When such an application is made after an award, the party in whose favor the award was made shall recover his costs, if upon the trial damages are increased beyond the award ; otherwise he shall pay costs ; and such costs shall be taxed as in civil cases." ^ Under this provision of the statute the petition for a jury may in all cases be presented to the Superior Court, but the right to present such petition to the county commissioners, where it previously existed, is not taken away. § 5. Filing Petition gives Jurisdiction. — It is held that the filing of the petition for a jury gives to the tribunal in which it is filed exclusive jurisdiction of the case.^ The tribunal which takes jurisdiction issues the warrant for a jury. It is immaterial from which tribunal the warrant is issued, as the proceedings under it are the same in each case. § 6. The proceedings on petitions for a jury are quite fully given in the Public Statutes, c. 49, in relation to the laying out and discontinuance of ways, and the same proceedings as far as applicable are adopted by statute as the proceedings in other petitions for a jury. In all cases where a trial is to be had by a sheriff's jury, a warrant is issued, a jury summoned, and a trial had in the manner prescribed by statute for such proceeding in the case of a claim for damages occasioned by laying out a highway. A description of the proceedings in the last-named case wiU be applicable to all cases triable by a sheriff's jury. § 7. The warrant for a jury, whether issued by the Superior Court or the county commissioners, is substantially the same. It is addressed to the sheriff of the county and commands him to summon and impanel agreeably to law a jury of 1 Pub. St. c. 49, § 105. 2 Miller v. County Commissioners, 119 Mass. 485, 487. 500 CASES TRIABLE BY SHERIFF'S JUKY. [CH. XLIII. twelve good and lawful men to hear and determine the mat- ter of the complaint set forth in the warrant, and to decide all such matters as legally come before them. § 8. In case a committee is appointed to try the Case instead of a jury, the warrant is altered to conform to the fact. § 9. Who shall preside at the Trial. — The statutes provide that the county " commissioners, when they issue their war- rant for a jury, may, at the request of either party appoint some suitable person to preside at the trial, in which case the jury may be attended by a deputy sheriff ; but if no person is so appointed, the sheriff of the county shall preside ; or when the sheriff is interested or unable to attend, the special sher- iff of the county shall preside." ^ § 10. Estimation of Damages before filing Petition. — In all cases triable by a sheriff's jury, except for damages for flow- ing land, provision is made by statute for an estimation of the damages claimed, either by the county commissioners or other officers designated in the statutes for that purpose. Is such an estimate a necessary prerequisite to an applica- tion for a jury ? This question was raised in the case of Riley v. Lowell.^ It was a petition to the Superior Court for a jury to assess the damages alleged to be done by the re- spondent in the construction of its water-works. No estimate of the petitioner's damages had been made by the county commissioners. It was held that such damages must be esti- mated by the county commissioners in the first instance, and that a trial by jury could only be had upon an application in the nature of an appeal from their decision. No such action having been had by the commissioners, it was held that the Superior Court had no jurisdiction of the subject-matter. In Gilman v. City of Haverhill,^ the same question appears to be raised. It is a petition to the county commissioners for a jury to assess damages sustained by the widening of a highway. The petitioners had made no claim for dama- ges before the county commissioners previous to filing their petition. It was held that the petitioner was entitled to a 1 Pub. St. c. 49, § 43. s 128 Mass. 36, 38. 2 117 Mass. 76, 77. § 12.] CASES TRIABLE BY SHERIFF'S JURY. 601 jury, although he had not claimed damages before the county commissioners. The case of Riley v. Lowell, was decided in 1875, and the case of Gilman v. Haverhill in 1879. No statute was enacted on the subject between the times of the first and second decision, and none since, except the Public Statutes, in which the statutes before subsisting are embodied and re-enacted. I'here is a seeming conflict between the decisions in these two cases. The latter case appears to overrule the former without alluding to it. § 11. Process for Damages by laying out Highways. — The statutes provide that " a party aggrieved by the doings of the commissioners in the estimation , of his damages, occasioned either by laying out, locating anew, altering, or discontinuing a highway, or by specific repairs ordered by the commission- ers, or in the sum awarded him as indemnity therefor, may have a jury to determine the matter of his complaint upon written application to the commissioners ; or he may agree with the parties adversely interested to have the same deter- mined by a committee to be appointed under the direction of the commissioners ; or he may make application for a jury by petition to the Superior Court as provided in section one hundred and five," of chapter forty-nine, of the Public Statutes.^ It is held that one tenant-in-common cannot apply for a revision of damages unless his co-tenants join in the applica- tion.2 § 12. Several Persons may join in one Petition. — It is pro- vided by statute that " if two or more persons apply to the commissioners at the same time for joint or several damages or indemnity, they may join in the same petition ; and if sev- eral applications are pending at the same time before the commissioners for a jury to revise an assessment of damages or indemnity, they shall cause all such applications, which are made on account of the same highway, to be considered and 1 Pub. St. c. 49, § 32. 2 Merrill v. Berkshire, 11 Pick. 269. 502 CASES TRIABLE BY SHERIFF'S JURY. [CH. XLIIL determined by the same jury ; and the costs shall be taxed either jointly or severally, as the court to which the verdict may be returned determines to be equitable." ^ The fact that a jury cannot agree upon some of the applica- tions does not affect the validity of their verdicts upon others.^ § 13. Petitioners must recognize for Costs and Expenses. — It is also required by statute that " no jury shall be ordered, nor committee appointed, until the petitioners give recogni- zance to the county for the payment of all the costs and ex- penses which may arise in case the jury or committee does not increase the damages or indemnity allowed by the com- missioners." ^ § 14. Summoning the Jury. — The statutes make specific provisions for the summoning of the jury which need not here be stated. Those provisions are applicable to all cases, when a sheriff's jury is summoned.* § 15. Duty and Powers of Person presiding at a Trial. — The statutes provide that " the person presiding at the trial shall keep order therein, and shall administer the oath to the jurors and witnesses ; shall decide all questions of law, arising on the trial, which would be proper for the decision of a judge ; shall direct the jury upon any question of law, when requested by either party ; and shall, when requested, certify to the court, with the verdict, the substance of any decision or direction by him given." ^ In performing these duties his functions are judicial ; ® in attending the jury after they have retired to deliberate upon their verdict, he acts as an executive officer, just as his deputy might. He does not hold a court except for the purpose of presiding at the particular trial under the warrant to him.'^ If the sheriff or person presiding ^'has any authority to direct the jury in matter of law after he has once committed to them, it can only be in the presence of counsel. The stat- ute which requires him to give directions to the jury and to 1 Pub. St. c. 49, § 34. B Pub. St. c. 49, § 44. 2 Lanesborough v. County Commis- * Wood v. Ross, 1 1 Mass. 278 ; White sioners, 22 Pick. 278. v. Bodwell, 3 Dane, 19. 3 Pub. St. c. 49, § 35. ' Read v. Cambridge, 124 Mass. 567, 4 Pub. St. c. 49, § 39-41. 570. § 22.] CASES TEIAELE BY SHERIFF'S JURY. 503 certify them to the court at the request of either party, im- plies that the parties must be present by themselves or their counsel, when the directions are given." ^ § 16. A Deputy may take Charge of a Jury. — A sheriff who presides at such a trial may lawfully leave the jury under charge of a deputy while they are deliberating on their ver- dict.2 § 17. The proceedings at the trial are in conformity with the practice in jury trials at the bar of the Superior Court. The jury may view the premises when they think proper or upon the request of either party, and must hear and examine all legal evidence laid before them with the arguments of the parties or their counsel thereon. § 18. All the jurors must sign the verdict which may be agreed upon, which must be enclosed in a sealed wrapper, with an indorsement thereon expressing what it contains, and delivered so indorsed to the oflBcer having charge of the jury.s § 19. The verdict must be' returned to the next term of the Superior Court for the same county, within three months after the date of the order for a jury.* § 20. If the xaatter is determined by a committee, the report of the committee must be made within three months after their appointment, and must be returned to the next term of the court held after making the same ; and like proceedings must be had thereon as upon the return of a verdict.^ The court will receive the verdict or report and adjudicate thereon, and may set aside for good cause either a verdict or report.^ § 21. Questions of Law. — It is the duty of the officer pre- siding at the trial before the jury, upon the request of either party, to certify to the Superior Court, with the verdict, the substance of any decision or direction by him given. § 22. Judgment on the Verdict. — It is the duty of the 1 Read v. Cambridge, 124 Mass. 571. * Pub. St. c. 49, § 52. * Tripp V. County Commissioners, ' lb. 2 Allen, 556. « lb. » Pub. St. c. 49, § 49. 504 CASES TKIA.BLE BY SHERIFF'S JUKY. [CH. XLIII. Superior Court to adjudicate upon the verdict and to accept it or set it aside ; and any question of law decided by that court in making such adjudication may be carried to the Supreme Judicial Court by appeal or exceptions ; but such exceptions must be to a ruling of the Superior Court.^ The court cannot alter a verdict or supply any defect in it.^ Where a verdict consists of separate findings on distinct issues, some of them may be accepted and a new trial granted on others.^ § 23. Damages for Flowage. — Another class of cases, quite numerous and of considerable importance, are claims of dam- ages for flowing land. The statutes provide that any person may erect and main- tain a water-mill, and a dam to raise water for working it, upon and across any stream not navigable, upon the terms and conditions, and subject to the regulations, made in the statutes.* They also provide a remedy, whereby a person whose land is overflowed or otherwise injured by such dam, may obtain compensation therefor upon his complaint,^ and take away his right of action at common law.^ If, however, the mill-owner does not comply with the provisions of the statute made for his benefit, he is liable to a suit at common law.'^ § 24. The process is by a complaint addressed to the Su- perior Court for the county where the land or any part thereof lies, but no compensation can be awarded for damage sus- tained for more than three years before the institution of the complaint.^ § 25. The complaint must contain such description of the land alleged to be flowed or injured, and such statement of the damage, that the record of the case will show with suffi- cient certainty the matter heard and determined therein.® It may be filed in the court in term time or vacation. 1 Tucker v. Massachusetts Central 6 Pub. St. c. 190, § 4. Railroad, 116 Mass. 124. « Pub. St. c. 190, § 28. 2 Connecticut River R. R. Co. t>. ' Hill v. Sayles, 12 Met. 142, 149. Clapp, 1 Cush. 559. 8 p„i,, gt. c. 190, § 4. ' Patton V. Springfield, 99 Mass. 627. 8 pub. St. c. 190, § 5. * Pub. St. c. 190, § 1. § 30.] CASES TRIABLE BY SHERIFF'S JURY. 505 § 26. Notice of its filing must be given to the owner or occu- pant of the mill, by delivering to him, or leaving at his dwel- ling-house, an attested copy of the complaint ; or if he is not found within the State and has no dwelling-house therein, by leaving such copj'' at the mill in question fourteen days at least before the complaint is to be heard ; or the complainant may, fourteen days at least before the sitting of the court to which his complaint is brought, cause the owner or occupant of such mill or dam to be served with an attested copy of the complaint, by delivering or leaving such copy in like man- ner as when the complaint is filed as aforesaid. The notice shall be served by any officer authorized to serve any other civil process between the same parties.^ § 27. Abatement of the Process. — The provisions of the Pub- lic Statutes, c. 167, §§ 35-40, as to abatement of process, are applicable to complaints for flowage, and when new respond- ents are summoned in pursuance of said provisions, the com- plainant may have a verdict against such of the respondents as he proves to be liable, although he fails as to the rest.^ A complaint is not abated by reason of the death of any party, but it may be prosecuted or defended by the surviving complainants or respondents, or by the executors or adminis- trators of the deceased.*^ § 28. The respondent may tender and bring into court a sum as annual compensation for the damages that may thereafter be occasioned by his dam.* § 29. The respondent may answer in bar that the complain- ant has no estate or interest in the land alleged to be flowed or injured, that the respondent has a right to maintain his dam for an agreed price or without any compensation, or any other matter which may show that the complainant cannot maintain the suit ; but the respondent shall not answer that the land described is not injured by the dam.^ § 30. That Question is for the Jury. — The jury must find by their verdict whether the complainant has sustained any 1 Pub. St. c. 190, § 6, 7. * Pub. St. c. 190, § 37. 2 Pub. St. c. 190, § 40. 6 Pub, St. c. 190, § 8. 8 lb. 506 CASES TEIABLE BY SHERIFF'S JURY. [CH. XLIII. injury from the dam, and if any, how much. All other mat- ters which may be pleaded in bar of the complaint must be tried before the court before a warrant for sheriff's jury is awarded,! fgj. instance, a release of damages, or misdescription of land in the complaint ; ^ so also, a right to maintain the dam of the respondent.* § 31. Replication and other Pleadings. — If a plea or answer is filed by the respondent, the replication and other pleadings, and the trial of the issue, whether of law or of fact, shall be conducted in like manner as in actions at common law.* § 32. When a Warrant for Jury may issue. — If the owner or occupant of the mill or dam, after due notice, is defaulted or offers no legal objection, or if an issue is decided in favor of the complainant, the court will issue a warrant for a jury to hear and determine the matter of the complaint.^ The warrant must be directed and served, and the jurors drawn, summoned, and returned in the manner provided by statute, with respect to a jury returned on a complaint of a person aggrieved by the laying out of a highway, and the proceedings for supplying a deficiency of jurors and all other proceedings in the case must be substantially as are provided by statute in relation to such a complaint.® § 33. The former owner of a mill is liable, under the statutes passed for the regulation of mills, for damage occasioned by flowing land while he was the owner of the mill, although at the time the complaint was filed he had ceased to be the owner or occupant thereof. He is, however, liable only for past damages.^ § 34. The party having the record title to land is liable to this action although he may have conveyed away his estate by deed not recorded." The owner of land is liable for dam- ages caused by a dam built by his lessee for years.^ Such 1 Charles v. Porter, 10 Met. 37, 39. ' Pnb. St. c. 190, § 12 ; c. 49. '■i Darling v. Blackstone Mfg. Co., 16 ' Charles v. Monson & Brimfield Mfg. Gray, 187, 189. Co., 17 Pick. 70. ' Howard v. Locks & Canals, 12 8 Hennessey v. Andrews, 6 Cush. Cush. 259. 170. * Pnb. St. c. 190, § 9. 9 Sampson v. Bradford, 6 Cash. 303. 6 Pub. St, c. 190, § 11. § 36.] CASES TEIABLE BY SHERIFF'S JUEY. 507 action will be against the occupant as well as against the owner of the dam.^ § 35. Two or more persons suffering damage from a mill-dam, whether jointly or separately interested in the lands injured, may join in a complaint, and their cases may be heard before ' the same jury, which may assess joint or several damages as the interest and title of the complainants may require ; and judgment and execution for damages and costs will be had in conformity thereto.^ A mortgagor in possession of land can maintain a com- plaint under the mill act, without joining the mortgagee,^ and while in possession may maintain the action, although his right of possession has been terminated by foreclosure of the mortgage before suit brought.* A land-owner can maintain this action after he has conveyed away the land injured, to re- cover damages while he owned the land.^ § 36. Damages. — The statutes provide that " the jury, in estimating the damage to the land of the complainant, shall take into consideration any damage occasioned by the dam to his other land, as well as the damage occasioned thereby to the land overflowed ; and they shall also allow, by way of set-off, any benefit occasioned by such dam to the complainant in relation to his lands."® In all but exceptional cases the rule in estimating the dam- ages is that comparison is to be made between the present productive value of the land, and what its productive value would have been had it not been injured by the dam.'' The benefits resulting to the complainant by the oppor- tunity to cut ice on the land flowed may be taken into con- sideration by the jury by way of set-off.^ The statutes provide that if the jury " find that the com- plainant is entitled to recover damages, they shall assess the amount of damages sustained within three years next pre- 1 Davis V. Brigham, 29 Me. 391. « Pub. St. c. 190, § 14. 2 Pub. St. c. 190, § 39. ' Howe v. Kay, 113 Mass. 88 ; Bates ' Paine v. Woods, 108 Mass. 160. v. Ray, 102 Mass. 458. * Vaugh V. Wetherell, 116 Mass. 138. « Paine v. Woods, 108 Mass. 160. 6 Walker v. Oxford Woollen Mfg. Co., 10 Met. 203. 608 CASES TRIABLE BY SHERIFF'S JURY. [CH. XUII. ceding the institution of the complaint and to the time of the rendering of the verdict, and, if the verdict is allowed and recorded, the complainant shall have judgment and execution for the amount of damages so assessed." ^ If the jury find by their verdict that the complainant is not entitled to recover any damages, and if such verdict is' allowed and recorded, judgment shall be rendered for the re- spondent.^ The only judgment that can be rendered for the respond- ent is for his costs.^ The party prevailing on the complaint is entitled to his full costs, except where it is otherwise expressly provided. The court will award a reasonable compensation to the person who presides at the trial, when it is had before a sheriffs jury, and to the officer who executes the warrant, and the amount so awarded jvill, with the pay of the jurors and other like charges, be advanced by the complainant, and taxed and allowed in the bill of costs.* § 37. 'When the Dam is too high or should be open Part of the Year. — The statutes provide that "if it is alleged in the com- plaint that the dam is raised to an unreasonable height, or that it ought not to be kept up and closed during the whole year, the jury shall decide how much, if any, the dam shall be lowered, and also whether it shall be left open during any part of the year, and, if so, during what part, and shall state such decision as a part of their verdict. " They shall also ascertain and determine by their verdict what sum, if any, to be paid annually to the complainant, would be a just and reasonable compensation for the damages that may be thereafter occasioned by the dam, so long as it is used in conformity with the verdict ; and also what sum in gross would be a just and reasonable compensation for all damages thereafter to be occasioned by such use of the dam, and for the right of maintaining and using the same forever in manner aforesaid." ^ 1 Pub. St. c. 190, § 16. 4 Pub. St. c. 190, § 27. 2 Pub. St. c. 190, § 15. 6 Pab. St. c. 190, § 17, 18. 8 Fisher v. Johnson, 2 Allen, 436, 437. § 43.] CASES TKIABLE BY SHEEIFF'S JUKY. 509 § 38. Damages by laying out Railroads. — Another impor- tant class of cases triable by a sheriff's jury is that of claims of damages for land taken by railroad corporations for the use of such corporations. When a railroad corporation is not able to obtain by agree- ment with the owner the land or materials necessary for its purpose as provided by statute, it is liable to pay all damages occasioned by laying, making, and maintaining its road, or by taking land or materials therefor. § 39. Remedy to recover Damages. — Such damages, on application of either party, may be estimated by the county commissioners in the manner provided with reference to the laying out of highways ; and when it is intended to take land or materials, application may be made before the actual taking and appropriation thereof.^ Either party, if dissatisfied with the estimate of the county commissioners, may at any time within one year after it is completed and returned, apply for a jury to assess the dam- ages.^ The application may be made to the county commis- sioners or to the Superior Court.^ § 40. Proceedings. — Upon such application the proceed- ings are required by statute to be the same as are provided for the recovery of damages in the laying out of highways.* See ante, pp. 498, 499. § 41. Claims against Telegraph Companies. — Another similar class of claims, triable in the same manner, is that for dam- ages caused by the location of telegraph lines along public ways and streets. § 42. Estimate of Damages. — The mayor and aldermen of cities, and the selectmen of towns may authorize the con- struction of such lines, and assess and appraise the damages to be paid by the telegraph company to the owners of land along the line of each company so located and constructed.^ § 43. Claimant may have a Jury. — A person aggrieved by such assessment of his damages may have the matter deter- 1 Pub. St. c. 112, § 95. * Pub. St. c. 112, § 100. 2 Pub. St. u. 112, § 99. s Pub. St. c. 109, § 2-4. " Pub. St. c. 112, § 103 ; c. 49, § 105. 510 CASES TRIABLE BY SHERIFF'S JURY. [OH. XUIL mined by a jury. If the jury increase the damages, the amount of the verdict and all charges must be paid by the company ; otherwise the charges must be paid by the appli- cant. The proceedings in such case are in accordance with the provisions of the statutes concerning town ways and private ways.^ 1 Pub. St. c. 109, § 6. § 1.] DAMAGES. 611 CHAPTER XLIV. DAMAGES. § 1. How Damages are assessed. — In personal actions, where the plaintiff prevails, he recovers damages, which are awarded for a debt found to be due to him, or for an injury sustained by him. If the defendant appears in the action and the case is tried by a jury, the damages are usually assessed by the jury and found in the verdict. If tried by the court without a jury, the damages are assessed by the court. Damages may also be awarded by a referee or assessor. In all these cases the amount of the damage is to be determined upon the facts proved, and is a matter which calls for the exercise of the judgment and discretion of the court, or of those on whom that duty devolves.. In all such cases the finding as to the amount is final and conclusive, unless reversed for cause shown. If the plaintiff proves that he has sustained an injury in point of law only, but no actual damage, merely nominal damages may be assessed. If the defendant do not appear, a default is en- tered against him, and the court may then, if the case is such as to require it, assess the damage without the intervention of a jury, or may submit the matter to a jury. Where the amount of damages is a mere matter of computation from the papers filed in the case, the damages are usually assessed by the clerk. In the case of Perry v. Goodwin,^ Parsons, C. J., said : " The court generally refuses to assess the damages in actions where the law has prescribed no rule by which they may be measured,, but leaves them to the feelings of a jury," 1 6 Mass. 498. 512 DAMAGES. [CH. XLIV. Upon the trial of an issue of fact, it is in all cases the pro- vince of the jury to assess the damages, and the assessment of them is part of their verdict. § 2. Where there are Several Counts in the Declaration. — On a declaration containing several counts, the jury may assess, either entire damages upon the whole or a part of the decla- ration, or several damages on the different counts.-' It is safer, however, to have the damages severally assessed ; be- cause, if a verdict be entered generally on all the counts, and entire damages given, if one or more of the counts be bad or inconsistent, the judgment may be arrested in toto;^ while if the damages are severally assessed, judgment, if arrested at all, can be arrested only for so much as is defectively alleged, or upon which no action will lie, without affecting those causes of action which are sufficiently set forth, or upon which an action may be maintained.^ But even though entire damages be given upon a general verdict, j'et if it appear from the judge's notes that evidence was given on the good counts only, or that the jury calcu- lated the damages on evidence applicable to the good counts only, the court will amend the verdict by entering it on those counts.* § 3. Where there are Several Defendants. — By the common law, in actions ex contractu, where there are several defend- ants, the damages must of course be entire ; for if the plaintiff do not prove all the defendants jointly liable, he fails in his action altogether. In actions ex delicto, where the defendants join in pleading, the jury, if they find them jointly guilty, cannot sever the damages ; so, though the defendants sever in pleading, or once suffer judgment by default, yet if there be but one tres- pass, and both or all are found guilty of the whole trespass, joint damages must be assessed against all.^ 1 1 Rol. Abr. pi. 1. 'Williams v. Breedon, 1 Bos. & Pul. 329 ; 2 Grant ■.. Astle, 2 Doug. 722, 730 ; Spicer v. Teasdale, 2 Eos. & Pul. 49 ; Cook V. Cox, 3 Maule & S. 110; Hop- Baker v. Sanderson, 3 Pick. 348; Corn- kins V. Beedle, 1 Caines, 347 ; Livings- wall v. Gould, 4 Pick. 444. ton V. Rogers, 1 Caines, 584. « Hill v. Goodchlld, 5 Burr. 2790 ; 8 Hancock v. Haywood, 3 T. E. 433. Mitchell v. Milbank, 6 T. E. 199 ; Howe's * Eddowes v. Hopkins, 1 Dougl. 376 ; Pr. 263. § 4] DAMAGES. 513 But the jury may find one of them guilty of the trespass at one time, and the other at another ; ^ or one of them guilty of part of the trespass or trover, and the other of another ; ^ or some guilty of the whole trespass, and the other guilty of part only;* in all which cases they may assess several damages.* If the jury should sever the damages by mistake, the plain- tiff may cure the defect by taking judgment de meliorihus damnis agaiast one, and entering a nolle prosequi as to the other ; or by entering a remittitur as to the lesser damages, he may have judgment for the greater damages against both.^ And if the defendants should sever in pleading, the jury who try the first issue must assess damages against all ; there will then be a cesset executio until the other issues are tried, when the other defendants, if found guilty, shall be contributory to those damages.^ When the plaintiff has thus obtained judgment against several defendants, he may levy the whole upon any one of them ; and such defendant, if the action were ex contractu, maj', after paying these damages, maintain an action against the other defendants, and oblige them to contribute their respective shares ; but if the action were ex delicto he cannot compel the others to contribute, and is entirely without remedy.'' § 4. Assessment of Damages. — In Massachusetts the follow- ing provisions are made by statute as to the assessment of damages in actions at law. " When the defendant is de- faulted in any stage of the proceedings, the court shall award such judgment for the plaintiff as it shall upon inquiry find to be just and proper ; unless the plaintiff or defendant moves to have the damages assessed by a jury, in which case they shall be so assessed." " The court may, in all cases in which damages are de- 1 Cro. Car. 54 ; 2 Tidd's Pr. 896. 6 gabin v. Long, 1 Wils. 30 ; Cro. 2 Heydon's Case, 11 Co. 5. Car. 192. 3 Cro. Eliz. 860; 2 Tidd's Pr. 896. « Heydon's Case, 11 Co. 5. * Kennebec Purchase v. Boulton, 4 ' Merryweather v. Nixan, 8 T. R. Mass. 419. 186. 33 514 DAMAGES. [CH. XLIV. manded, refer the assessment thereof to a jury, although it is not moved for by either party. " In actions upon promissory notes and other contracts where the amount due appears to be undisputed, the debt or damages may be assessed and ascertained by the clerk, under a general order of the court or by a special reference of the case to him. The judgment in either case shall be entered in the same form as if it had been awarded by the court on an assessment or computation made by themselves." ^ In an action on a debt payable in gold, judgment should be rendered for the amount in gold with interest.^ As to the assessment of damages upon default, it is not nec- essary that it should appear of record by whom it was made ; but unless the contrary appear, it will be presumed to have been made bj'' the court.* If the plaintiff's writ specify his claim, as by describing a promissory note, or by containing an account annexed, or otherwise, he takes his judgment and execution, as a matter of course, for the amount specified, upon filing with the clerk, the note, account, or document declared on. These proceedings are matters of course ; for though a defendant after being defaulted may be heard as to the assessment of damages before judgment is entered, yet it would seem that, after judgment, he can only resort to his petition for a review, in case there be fraud or error in the assessment of the damages. In case the court should direct the damages, after default, to be assessed by a jury, the matter would be committed to one of the regular juries in attendance upon the court, by whom it would be tried, in the same manner as common cases, with the exception that the trial and verdict would be confined merely to the amount of damages. If the judgment be on a verdict for the plaintiff, interest on the amount of the verdict, from its date to the day of judg- ment, should be added to it. When the judgment is entered soon after the verdict, in- terest is not always added to the amount of it. 1 Pub. St. c. 171, § 2-4. s Jarvis v. Blanchard, 6 Mass. 4. * Currier v. Davis, HI Mass. 480. § 7.] DAMAGES. ^ 515 § 5. Interest when allowed. — In an action on a contract, when judgment is rendered upon the default of the defendant, it is a general rule that, in assessing damages, interest should be computed from the date of the writ to the day of judg- ment. This is the rule where there is no contract or usage requiring that interest should be computed ' from a time pre- vious to the date of the writ.^ Interest should be allowed where there is an express prom- ise to pay it, or where there is a usage proved from which the jury may infer a promise to pay ; and also it may be given as damages for the detention of a debt after the time when due by the terms of the agreement, or for neglect to pay a debt after a special demand.^ In an action for money paid by a surety, interest is recover- able from the time of payment without proof of a demand of payment.^ A purchaser of goods for cash payable on delivery is charge- able, in case of non-payment, with interest from the date of the delivery of the goods.* But interest cannot be recovered upon an open and running account for work and labor, goods sold and the like, unless there is some contract to pay interest, or some usage, as in the case of the custom of merchants, from which a contract may be inferred, or where the defendant is a wrong-doer in acquiring or detaining money.^ § 6. Interest on Mutual Accounts. — Although it is a legal usage of merchants to cast interest on the items of their mu- tual accounts and strike the balance at the end of the year, and make that balance the first item of principal for the ensuing year, yet neither the usage nor the law allows this to be done (except under a specific agreement) after the mutual dealings of the parties have ceased.^ § 7. Interest is computed by the Law of the Place. — Interest is to be computed at the rate established by the law of the 1 Haven v Foster, 9 Pick. 112; « Hsley v Jewett, 2 Met. 1 68. Brewer v. Tyringham, 12 Pick. 647 ; * Poote v. Blanchard, 6 Allen, 221. Hunt V, Nevers, 15 Pick. 500. ^ Hunt «. Nevers, 15 Pick; 500; Goflf 2 Barnard v. Bartholomew, 22 Pick. v. Eehoboth, 2 Gush. 475. 291; Dodge v. Perkins, 9 Pick. 368; ^ Von Hemert v. Porter, 11 Met. Cole V. Trull, 9 Pick. 325. 210. 516 . DAMAGES. [CH. XLIV. place where the debt of which it is the incident is contracted and is to be paid.^ Otherwise when given in the nature of damages.^ § 8. No Interest on Interest. — Interest should not be al- lowed upon interest, and where an action is on an account and interest is charged in the account for any time previous to the date of the writ, in computing interest from the date of the writ it should not be computed on the interest so charged in the account, but on the principal only. Money lent without any stipulation for interest does not necessarily draw interest until refusal or neglect of payment after demand made or some other default of the borrower.'' § 9. Interest on Verdicts, Awards, &o. — Interest is allowed in Massachusetts on verdicts, awards of referees, reports of auditors and masters in chancery, from the time when made to the time of judgment.* § 10. How to compute Interest on a Note. — In Massachu- setts, where partial payments have been made on a note or other claim bearing interest, the rule is to compute the interest on the principal sum from the time when the interest com- menced to the first time when payment was made, which exceeds, either alone or in conjunction with the preceding payments if any, the interest at that time due : add the interest to the principal, and from the sum subtract the pay- ment made at that time, together with the preceding payments, if any, and the remainder forms a new principal, on which compute and subtract the interest as upon the first principal, and proceed in this manner to the time of the judgment.^ § 11. Recoupment. — In an action for the breach of a con- tract, where the defendant has sustained damage by the non- performance by the plaintiff of his part of the agreement, it is well-settled law that a defendant may recoup his damages occasioned by the breach of the contract on the part of the plaintiff. The claim proved by the defendant is deducted 1 Von Hemeit v. Porter, II Met. 210. * Pub. St. c. 171, § 8. 2 Eaton V. Melius, 7 Gray, 580. 6 j)ean v. Williams, 17 Mass. 417 ; ' lb. J Barnard v. Bartholomew, 22 Fay u. Bradley, 1 Pick. 194. Pick. 291. ' § 11.] DAMAGES. 617 from the amount of the demand established by the plaintiff, and judgment is rendered for the balance. If the claim proved by the defendant is greater than that of the plaintiff, he cannot recover it as in the case of set-off.' In the case of Sawyer v. Wiswell, Bigelow, C. J., says : " The doctrine of recoupment, as understood and applied in the modern cases, does not rest on the nature of the right which a plaintiff has in the contract which he seeks to en- force, nor on the fact that his interest in it is the same at the time of suit brought as when it was originally entered into. The essential elements on which its application depends are two only. The first is that the damage which the defendant seeks to set off shall have arisen from the same subject-mat- ter, or sprung out of the same contract or transaction, as that on which the plaintiff relies to maintain his action. The other is that the claim for damages shall be against the plain- tiff, so that their allowance by way of set-off or defence to the contract declared on shall operate to avoid circuity of action, and as a substitute for a distinct action against the plaintiff to recover the same damages as those relied on to defeat the action." In the cases referred to in the note to this statement it is held that the defendant could not recoup.^ 1 Sawyer v. Wiswell, 9 Allen, 39; ^ Wentworth «. Dows, 117 Mass. 14; Harrington v. Stratton, 22 Pick. 510; Bartlett t;. Farrington, 120 Mass. 284; Still V. Hall, 22 Wend. 51 ; Bradley v. Handy v. Handy, 124 Mass. 394. :3ea, 14 Allen, 20 ; Stacy v. Kemp, 97 Mass. 166 ; Carey v. Guillow, 105 Mass. 18; Davis v. Bean, 114 Mass. 358. 518 JUDGMENTS. [CH. XLV. CHAPTER XLV. JXTDGMENTS. § 1. Judgments, says Sir William Blackstone, " are the sen- tence of the law pronounced by the court upon the matter contained in the record, and are of four sorts : First, where the facts are confessed by the parties and the law determined by the court, as in case of judgment on demurrer ; secondly, where the law is admitted by the parties and the facts dis- puted, as in case of judgment on a verdict ; thirdly, where both the fact and the law arising thereon are admitted by the defendant, which is the case of judgments by confession or default ; or, lastly, where the plaintiff is convinced that either fact or law, or both, are insufficient to support his action, and therefore abandons or withdraws his prosecution, which is the case in judgments upon nonsuit or retraxit." ^ All these species of judgments are either interlocutory or final. § 2. Interlocutory judgments are such as are given during the progress of a cause upon some plea or proceeding which is only intermediate, and does not finally determine or com- plete the suit; as upon demurrer to a ^ea in abatement that the defendant answer further. § 3. Final judgments are such as at once put an end to the action. They are the award of the court that the plaintiff recover his damages and costs ; or, if for the defendant, that the plaintiff take nothing by his writ, and that the defendant recover his costs, and sometimes also his debt or damage, as where he has pleaded a set-off.^ When the defendant fails to appear, or, having appeared, neglects to take the requisite steps on his part in the pro- 1 3 Bl. Com. 396. 2 lb. § 4.] JUDGMENTS. 519 ceedings of a case, the only mode in practice of procuring a judgment against him is by causing him to be defaulted. If he do not appear, he is defaulted of course, but if, after hav- ing appeared, he do not regularly proceed in the cause, he may be defaulted on motion of the plaintiff. § 4. rorm of Judgments. — In actions of contract and tort, in which damages only are demanded, the judgment for the plaintiff is that he recover his damages as found by the ver- dict, or, in case of demurrer or default, to be duly assessed, together with his costs, if any be allowable ; ^ in real actions, that he recover the premises demanded in his writ, and costs. In all these cases, if the defendant prevail, the judg- ment is that he recover his costs merely, except in those cases where he has filed and proved in set-off a demand larger than that found due to the plaintiff, in which ease the defendant is entitled to judgment for the excess, as well as for his costs. In replevin, the judgment for the plaiijtiff is for his dam- ages, which are usually nominal, as the goods demanded were delivered to him on the writ, and for his costs; for the de- fendant, the judgment is for a return of the goods replevied, together with six per cent on the amount of the replevin bond given by the plaintiff as damages, and also for his costs.^ On the acceptance of a report of referees, the judgment of the court must conform to their award. Referees have exclu- sive jurisdiction of the question of damages and costs.^ Judgment for the defendant, in all cases upon demurrer, is final, and that he recover his costs, unless the plaintiff amend his declaration.* If in the same case there should be issues in law upon de- murrer, and also issues in fact to be tried by the jury, though the former should be first tried, yet final judgment will not be rendered in the case until the issues in fact have been dis- 1 2 Tidd's Pr. 931 ; Pub. St. c. 167, Moore v. Heald, 7 Mass. 467 ; Warren v. § 1. Waldron, 108 Mass. 232. 2 2 Tidd's Pr. 931. * 2 Tidd's Pr. 931. ' Nelson r. Andrews, 2 Mass. 164; 520 JUDGMENTS. [CH. XLV. posed of. If the demurrer be determined in favor of the plaintiff, he may either strike out the counts upon which there are issues in fact, and take judgment upon the others, as in case of demurrer,^ or he may go to trial upon those counts, and the jury, if they find a verdict in his favor, will assess damages upon the whole declaration.^ But if the demurrer be determined in favor of the defend- ant, then the issues in fact must of course be tried before the plaintiff can have any judgment ; and if the verdict be against him, or he become nonsuit before going to trial, the defend- ant will have judgment for his costs.^ Judgment for the plaintiff on demurrer to a plea in abate- ment, or to a replication to a plea in abatement, is merely respondeat ouster. In this case there are no damages to be assessed, or costs taxed, but the defendant must plead anew ; and the case is then tried upon such new pleadings. In all other cases of demurrer, though the judgment, if for the plaintiff, is, strictly speaking, interlocutory merely until the damages have been assessed, yet in practice it is governed by the same rules as in the case of default, that is, judgment is rendered generally for the plaintiff that he recover his debt or damages ; and the subsequent assessment of these damages, however made, refers back to and becomes part of the original judgment.* Where the facts are agreed, it is usually a part of the agreement, that the plaintiff shall be nonsuited, or the de- fendant defaulted, according to the opinion of the court. If, therefore, the judgment be for the plaintiff, the proceedings as to the judgment and the assessment of damage, unless they are agreed, as they may be, are the same as in case of de- fault ; if for the defendant, the same as in case of nonsuit.^ In actions at law where the facts proved in defence entitle the defendant to relief in equity as provided in St. of 1883, c. 223, § 14, it seems that the judgment or decree should conform to the nature of the relief adapted to the case. 1 Fleming v. Laughton, I Stra. 532 ; " lb. Duperoy v. Johnson, 7 T. E. 473. * 2 Tidd's Pr. 740. 2 Howe's Pr. 270. 6 Howe's Pr. 270. § 7.] JUDGMENTS. 521 § 5. In an action for a breach of the condition of a bond, or to recover a penalty for the non-performance of a covenant, contract, or agreement, when it appears, by verdict, default, confession, or otherwise, that the condition is broken or the penalty forfeited, judgment must be entered for the penal sum, but execution can issue only for so much of the penal sum as is then due and payable in equity and good con- science.^ If any further sum or sums afterwards become due on the bond, the same may be recovered on scire facias? Although a bond in a penal sum does not carry interest as a part of the contract, interest on the amount of the penal sum may be added by way of damages for the detention thereof, after it is the duty of a surety to pay the same.' Where the judgment was irregularly entered for the sum assessed as damages, it was held to be a bar to further action on the bond.* § 6. Time of entering Judgment. — The statutes provide that every judgment shall be entered as of the last day of the term iu which it is rendered, unless there is an express order of the court for the entry thereof on some other day; in which case the day shall be noted by the clerk on his docket. The court may enter up judgment upon default at any time after four days from the day of default.* Fractions of a day are regarded when necessary to the ends of justice.^ § 7. If an action is continued nisi from a term of either court, and is determined by the court before the next term in the same county, the judgment, by order of the court on the motion or at the request of the party prevailing, may be entered as of the then last term of the court in the county where the action is pending. If the action is pending in the Superior Court to await the decision of a question of law by the Supreme Judicial Court, the rescript may direct the clerk 1 Pub. St. c. 171, § 9, 10. < Goodrich v. Yale, 97 Mass. 15, 17. 2 Pub. St. c. 171, § 11, 12. . 6 Pub. St. c. 171, § 1. = Bank of Brighton v. Smith, 12 Al- « Golden u.Blaskopf, 126 Mass. 523- len, 243 ; Leighton v. Brown, 98 Mass. 525. 515. 522 JUDGMENTS. [CH. XLV. of the Superior Court to enter judgment as of the last term in that court. The clerk in such case must note on his docket the time of receiving such order, and, if the order is for final judgment in favor of the plaintiff, the security in the suit, whether by bail or otherwise, will be held for the same time thereafter that it would be held after the entry of judgment in the usual manner.! These provisions confer no authority upon a judge in vaca- tion to enter judgment as of the last previous term where the case has not been continued nisi.^ The courts may at their discretion, when justice requires it, enter any judgment as of any day of a former term.^ § 8. " When a motion for a ne-w trial is overruled, the COUrt will enter judgment as of the term when the verdict was ren- dered, if necessary or expedient to secure the rights of the prevailing party, or to prevent loss by reason of the death of either party or otherwise." * The words " motion for a new trial " in the statute above quoted are held not to be there used in their technical sense, but are to be so construed as to enable the court to enter judgment nunc pro tunc whenever a case is continued, on motion of a dissatisfied party, for the purpose of obtaining some new disposition thereof which should relieve him from a verdict.* In the statute last quoted the authority to enter judgment as of the time when the verdict was rendered is given to the " court," not to a single judge in vacation.^ § 9. When there is more than one Defendant. — The statutes provide that " In any action founded on a contract express or implied in which there is more than one defendant, the plain- tiff shall be entitled to judgment against such defendants as are defaulted, and against those who. upon trial are found liable on the contract declared on, notwithstanding it is found that all the defendants are not jointly liable thereon. 1 Pnb. St. c. 153, § 18, 19. 5 Springfield v. "Worcester, 2 Cush. 2 Greenwood v. Bradford, 128 Mass. 52, 61, 62 ; Kelley v. Riley, 106 Mass. 296. 339, 340. 8 Pnb. St. c. 153, § 20. 6 Greenwood v. Bradford, 128 Mass, 1 Pub. St. c. 171, § 7. 296. § 12.] JUDGMENTS. 523 "In sueh action, when any defendants are defaulted, and upon trial any of the others are found liable, the court shall render judgment both against those defendants defaulted and those found liable for the debt or damages, with costs to the time of the default, and against those who defend for all costs accruing after the default ; and shall issue separate executions on such judgment. " ^ In a suit upon a contract against two partners the plaintiff may recover against one, if the proof makes him alone liable without any amendment of the declaration.^ § 10. Judgment on the verdict is final unless arrested by the court for sufiBcient cause on motion. The statutes provide that a judgment shall not be arrested 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 juris- diction of the court.^ A judgment of nonsuit is no bar to another action for the same cause.* § 11. As to judgments in real actions and in actions to foreclose mortgages, see ante, p. 80-83 ; and as to judgments under provisions of the statute of 1883, chapter 223, see post, chapter on " Equity Jurisdiction and Practice," § 6. § 12. Special Judgment in Case of Bankruptcy. — When a plaintiff is entitled to judgment, except for the bankruptcy or insolvency of a defendant who has dissolved an attachment by giving bond, the court may at any time upon motion enter a special judgment for such plaintiff, to enable him to proceed against the sureties on such bond ; and such special judg- ment is deemed a suiBcient judgment to enable such plain- tiff to maintain an action against the sureties on said bond : provided, that such attachment was not made within four months next preceding the commencement of proceedings in bankruptcy, or, in case of voluntary proceedings in insolvency, 1 Pub. St. u. 171, § 5, 6. a Pub. St. c. 167, § 82. ^ Wiggin V. Lewis, 12 Cash. 486. * Ensign w. Bartholomew, 1 Met. 274. 524 JUDGMENTS. [CH. XLV, within four months next preceding the time of the first publi- cation of the notice of issuing tlie warrant, or, in case of invol- untary proceedings, within four months next preceding the time of the first publication of the notice of the filing of the petition.^ In order to maintain an action on a bond to dissolve an attachment it is not necessary that execution should have been taken out and a demand made on the defendant within thirty days after judgment against him.^ § 13. Filing Papers for Judgment. — It is the duty of the pre- vailing party in every suit forthwith to file in the office of the clerk of the court all papers and documents necessary to en- able him to make up and enter the judgment, and to complete the record of the case. The 34th Rule of the Supreme Judicial Court of Massachu- setts provides : — " In order to enable the clerks to complete their records within the time prescribed by law, it shall be the duty of the prevailing party in every suit forthwith to file with the clerk all papers and documents necessary to enable him to make up and enter the judgment and to complete the record of the case; and if the same shall not be so filed, within three months after judgment shall have been ordered, the clerk shall make a memorandum of the fact on the record; and the judgment shall not be afterwards recorded, unless, upon a petition to the court, and after notice to the adverse party, the court shall order it to be recorded ; and no execution shall * issue until the papers are filed as aforesaid." ^ § 14. As to amount of judgment see chapter on Damages, p. 115. § 15. As to judgments in cases of set-off, see p. 307, and cases cited ; in cases of trustee process, see p. 34, 35, and in cases of summary process for recovery of lands, see p. 94. 1 Pub. St. c. 171, § 23 ; Bosworth v. " Campbell v. Brown, 121 Mass. 516. Pomeroy, 1 12 Mass. 293 ; Eay v. Wight, 3 jjuie 41 of the Superior Court is 119 Mass. 426; Towne v. Bice, 122 the same. Mass. 67. § 3.] LEVY AND SET-OFF OF EXECUTIONS. 525 CHAPTER XLVT. LEVT AND SET-OFF OF EXECUTIONS. § 1. How an Execution may be Satisfied. — A person hav- ing legally obtained an execution, the next inquiry is how it may be satisfied. It may be levied upon the real estate or personal property of the judgment debtor, or upon his body. In a previous chapter 1 the subject of attachments of real and personal prop- erty, and what may be attached and what is exempt from attachment, has been considered. It may here be added, that all property, both real and personal, which is liable to attachment, is liable to be taken on execution. If the judg- ment plaintiff desires to avail himself of an attachment of property made on mesne process, the execution must be levied before the attachment expires. In such case his title to the property taken relates back to the time when the attachment was made ; otherwise it takes effect from the time of the seizure on execution. § 2. Attachment holds Thirty Days from Judgment. — If final judgment in a case is rendered for the plaintiff, the property attached will be held for thirty days after the judgment, in order to its being taken on execution. In some cases it will be held a longer time, as follows : — § 3. When Attachment holds Sizty Days. — If the attach- ment is made in the county of Nantucket and the judgment is rendered in another county, or if the judgment is rendered in Nantucket and the attachment is made in another county, the goods and estate will be held for sixty days after final judgment, unless in either case the attachment has been dis- solved as hereinafter provided.^ 1 See ante, p. 111-U9. 2 PqI,. St. c. 161, § 52. 526 LEVY AND SET-OFF OF EXECUTIONS. [OH. XLVI. § 4. In suits in equity when an appeal may be claimed from a final decree of a single justice, the goods and estate attached shall be held for thirty days after such right of appeal expires.^ § 5. Final judgment here intended is that which is rendered in the original action, whether upon appeal or otherwise, and not such as may be rendered upon a writ of error or writ of review.^ § 6. "When Attachment is dissolved by Death of the Debtor. — When real estate, goods, chattels, or effects are attached, and the debtor dies before they are taken or seized on execu- tion, the attachment will be dissolved, if administration of the estate of the deceased is granted in this commonwealth within one year after his decease, or if application therefor is made within said year, and administration is afterwards granted upon such application. If no such administration is granted, the property attached will continue bound by the attachment in like manner as if the debtor were still living.^ This provision applies to attachments by trustee process.* § 7. The mode of levying an ezecutiou has no necessary connection with the manner in which the writ was served. Thus, though upon the writ the defendant be arrested, and bail taken, yet the plaintiff may cause his execution to be levied upon real or personal estate, if he can find it, and vice versa. So, though personal estate be attached on the writ, yet the plaintiff may levy his execution upon real es- tate, and vice versa? § 8. By whom a Levy may be made. — The levy must be made by an officer qualified to do it, and for that purpose the execution must be put into the hands of such an officer. As a general rule, the deputy sheriffs are qualified to levy executions and make attachments of property in all cases, except where they may be disqualified by special circum- stances. If it is desired to employ an officer of another class, it will be safe first to consider whether such service is within his authority. 1 Pub. St. o. 161, § 52, 53. « Wilmarth v. Richmond, 11 Cush. 2 Pub. St. c. 161, §55. 463. 8 Pub. St. c. 161, § 56. 6 Clark v. Goodwin, 14 Mass. 237. § 11.] LEVY AND SET-OFF OF EXECUTIONS. 527 Constables may serve civil processes in certain cases.^ See ante, p. 102. § 9. When a Levy should be made. — From what has been here stated it follows that if a judgment plaintiff intend to avail himself of an attachment of property on mesne process, he must cause his execution on his judgment to be levied on the property within the period of time that the attachment holds after the date of his judgment, or the attachment will be void. It is held that the omission by an officer or creditor, for more than thirty days, to proceed with the levy of an execu- tion at any stage between the commencement and the completion of the levy, is, in the absence of explanatory cir- cumstances, an unreasonable delay, and avoids the levy.^ This is a case where the attachment held only thirty days after final judgment. If the property attached on mesne process was sold pre- vious to the judgment, the officer has only to apply the proceeds upon the execution, and make his return ac- cordingly. § 10. What Property may be taken on Execution. — It is the general policy of our laws to make the whole property of a debtor applicable to the payment of his debts, and to except only such things as are essential to his support and that of his family, for the humane purpose of saving them from utter destitution and suffering. Certain articles of property are therefore exempted from attachment by statute, and others by reason of their character and situation. As to .articles of the latter character there have been numerous decisions. The question what property can be attached has been treated at length in a previous chapter (c. 11). It is a well- settled rule that any property that can be attached can be taken on execution. Reference is therefore made to the chapter on attachments to determine what property may be taken on execution. § 11. Levy on Real Estate — how made. — The Public Stat- 1 Pub. St. c. 27, § 113; c. 22, § 21. 2 Haskell y. Varina, 111 Mass. 84. 528 LEVY AND SET-OFF OF EXECUTIONS. [CH. XLVI. utes provide two modes of levying an execution on the real estate of a judgment debtor : first, by setting off the real estate to the plaintiff, in part or entire satisfaction of the execution ; and second, by a sale of the real estate and the application of the proceeds of the sale on the execution. The plaintiff may elect in which of these modes his execu- tion shall be levied.^ The real estate of a deceased person may be taken on an execution on a judgment recovered against his execu- tor or administrator for the proper debt of the deceased,^ although it has passed from his heir or devisee to a bona fide purchaser.^ § 12. Levy by setting off Land. — When the plaintiff elects to levy his execution, by set-off of the real estate of the de- fendant, he should so direct the officer to whom the execution is delivered to be levied. In such case the statutes provide that " the officer shall cause the land to be appraised by three disinterested and discreet men, of whom one shall be ap- pointed by the creditor, one by the debtor whose land is taken, or, if the debtor is absent from or not resident in the Commonwealth, by his agent or attorney, if he has any known to the officer, and the third by the officer. If the debtor is absent from or not resident in the Commonwealth and has no agent or attorney known to the officer, or neglects within a reasonable time to appoint an appraiser, the officer shall appoint one for him. " The persons thus appointed shall be sworn, before a jus- tice of the peace or before the officer, faithfully and impar- tially to appraise the real estate shown to them as taken on the execution, and shall proceed with the officer to view the same, and shall examine it so far as may be necessary to form a just estimate of its value ; and a certificate of their appraise- ment shall be indorsed on the execution and signed bj' them. " The dissent of one appraiser and his refusal to sign the certificate of appraisement, if he was sworn and acted with the others, shall not vitiate the levy of the execution ; but 1 Pub. St. c. 172, § 7, 27 ; Hackett v. = Pub. St. c. 172, § .55. Buck, 12S Mass. 369. 3 Gore v. Brazier, 3 Mass. 523-542. § 13.] LEVY AND SET-OTF OF EXECUTIONS. 529 in such case the certificate of the other two shall be suffi- cient." 1 § 13. Who may be Appraisers. — The Statute provides that the appraisal shall be made by " three disinterested men." In Wolcott V. Ely ,2 Hoar, J., said : " In requiring that they should be disinterested we do not think that the legislature intended merely an exclusion of pecuniary interest in the result. Near affinity by blood or marriage is equally a dis- qualification." In this case a son-in-law of the judgment creditor was one of the appraisers, and was appointed by the officer, and for that cause the levy was held to be void. Where an officer appointed his brother-in-law an appraiser, the appointment was held not to vitiate the levy.^ One who is tenant in common in the land on which an execution is levied cannot act as an appraiser on such levy.* The inhabitants of a town are not competent as appraisers upon the levy of an execution in favor of the town.^ It. is held not to be necessary that appraisers should be persons residing in the county, or even in the State.^ Where a judg- ment debtor was under guardianship as a spendthrift, it was held that his guardian might appoint an appraiser in his be- half.' An officer's return on an execution should set forth that he had appointed two appraisers, " the creditor having neglected, after notice, to appoint." Held, that the officer had no right to do this ; that if the debtor neglected to ap- point one, the officer could appoint one for him, but could not appoint for the creditor.^ If an execution against two persons be levied upon land of which both are seised, an appointment of an appraiser by either of them is sufficient.^ A tenant in common with a judgment debtor is disquali- 1 Pnb. St. c. 172, § 7-9. 8 Campbell v. Webster, 15 Gray, 28, 2 2 Allen, 338. 30. ' Brown v. Washington, 110 Mass. ' Bond v. Bond, 2 Pick. 382-385. 529, 531. ' Richardson ». Payne, 114 Mass. * Cowdrey v. Sheldon, 122 Mass. 429, 430. 267. ' Herring v. PoUey, 8 Mass. 113. 6 Boston V. Tileston, 11 Mass. 468. 34 530 LEVY AND SET-OFF OF EXECUTIONS. [CH. XLVI. fied to act as an appraiser upon the levy of an execution upon the land of the latter.^ That one appointed to appraise land taken on execution is cousin to the plaintiff's mother is not a disqualification, and does not vitiate the levy.^ § 14. VSTho shall appoint Appraisers. — The provisions of the statutes here cited apply to most cases, but not to all. Where an execution in favor of a spendthrift was extended on land, it was held that his guardian might appoint an appraiser and receive seisin in behalf of his ward.^ It is held that where the creditor neglected to appoint an appraiser, and the ofScer officially appointed two appraisers, that the levy was void ; but it seems that the officer might lawfully have appointed one officially, and another as the agent of the creditor.* If one of two judgment debtors appoint an appraiser of land belong- ing to them both, or to him only, it is sufficient." § 15. How the Appraisal must be made. — The statutes pro- vide that " in estimating the value of the estate of the debtor, the appraisers shall value it as an estate in fee simple in possession, unless it is expressly stated in the description indorsed on the execution to be a less estate ; and in every case all the freehold estate and interest which the debtor has in the premises shall be taken and shall pass by the levy, unless it is a larger estate than is mentioned in said description." ^ The amount of a mortgage on the estate levied on is to be deducted when knownJ § 16. When Several Pieces are levied on. — " If the execu- tion is levied at the same time upon several pieces of land, each piece may be separately appraised, or all may be ap- praised together. When several pieces are taken successively on the same execution, a distinct set of appraisers may be 1 Cowdrey v. Sheldon, 122 Mass. ^ Herring w. Polley, 8 Mass. 113. 267. 6 p„b. St. c. 172, § 10. 2 Kinsman y. Warner, 113 Mass. 347. ' Pub. St. c. 172, § 11 ; McGregor v. * Bond V. Bond, 2 Pick. 382. - Williams, 10 Cash. 526 ; Pettee v. Pep- * Richardson o. Payne, 114 Mass. pard, 125 Mass. 66,68; Wadsworth v. 429, 431. Williams, 97 Mass. 339, 341. § 18.] LEVY AND SET-OFF OF EXECUTIONS. 531 appointed for each piece, or all may be appraised by the appraisers first appointed." ^ They must be described by metes and bounds, or other- wise, with as much precision as is necessary in a common conveyance of land, and in such a manner that the premises may be known and identified. Such description may be contained in the certificate of the appraisers or in the return of the officer, and the description in either the certificate or return may be referred to and adopted in the other.^ § 17. Description of Estate levied on. — The return of the officer and the certificate of the appraisers, or either of them, may refer to wills and instruments of conveyance of the same land for a description thereof, if such instruments are duly recorded in the appropriate offices.^ The levy will be valid if by parol evidence the land levied on can be identified to the satisfaction of the jury.* If the land is described with sufficient certainty, a considerable mistake as to the number of acres is held to be immaterial.^ § 18. Officer's Return. — " The officer, in the return or certificate of his doings indorsed on the execution, shall set forth substantially the following facts and circumstances, to wit : — First. The time when the premises were taken on execution. Second. That the appraisers were appointed by himself and the creditor and debtor ; or that the debtor was absent from or not resident in this State, and had no agent or attorney known to the officer, or neglected to appoint an ap- praiser, and the officer appointed one for him, as the case may be. Third. That the appraisers were duly sworn, unless a certificate of the oath is indorsed on the execution and signed by the justice or officer who administered it. Fourth. That they appraised and set off the premises at the price specified. Fifth. That the officer delivered seisin thereof to the creditor or some person as his attorney, or assigned the 1 Pub. St. c. 172, § 12. 4 Chappell v. Hunt, 8 Gray, 427. 2 Pub. St. c. 172, § 13. s Clark v. Munyan, 22 Pick. 410. ' Allen V. Taft, 6 Gray, 552-555; Jenka w. Ward, 4 Met. 404, 411. 532 LEVT AND SET-OFF OF EXECUTIONS. [CH. XLTI. same to him, as prescribed in case of a remainder or incor- poreal estate. Sixth. The description of the premises ; unless they are sufficiently described in the certificate of the ap- praisers, in which case the officer may refer to and adopt that description. And, Seventh. If the appraisement is signed by only two of the appraisers, the return shall show that all three of them were present and acted therein." ^ The officer must make a return of his execution, at the time and place specified therein. His return upon the execu- tion must specially set forth all his doings, — in what manner he notified the debtor, or the reason why he did not notify him, — in what places, and in what newspaper, he gave the public notice, — the proceedings of the 'sale, the proceeds, and his application thereof to the execution. A mere general return that he proceeded according to law is not sufficient.^ Everything required by the statute to pass the property must be stated,^ — the date of the levy ;^ the names of the appraisers ;^ by whom they were respectively chosen,* and, if the officer chose two of them, the reason for so doing ; ^ that the appraisers were discreet and disinterested men;^ that they entered upon or viewed the land appraised ; * the sum for which they appraised it, and the metes and bounds by which they set it forth, for which two facts, however, he may simply refer to the appraisers' certificate, if they annex one, as is usual ; ^^ and that he delivered seisin thereof to the cred- itor or his attorney.i^ It is not necessary to state which appraisers he appointed.^^ An officer may be allowed to amend his return when enough appears to amend by.^^ The return of an officer as to all matters which are properly 1 Pnb. St. c. 172, § 24. * Williams v. Amory, 14 Mass. 20; 2 Davis V. Maynard, 9 Mass. 242 ; Lobdell v. Sturtevant, 4 Pick. 243. Wellington v. Gale, 13 Mass. 483. ' Tate v. Anderson, 9 Mass. 92 ; ' Williams v. Amory, 14 Mass. 20. Hammatt v. Bassett, 2 Pick. 564. 4 Shove V. Dow, 13 Mass. 529. i" Shove v. Dow, 13 Mass. 529. ^ Bradley v. Bassett, 2 Cush. 417, ^i Boylston v. Carver, 11 Mass. 515. 418. 12 Dooley v. Wolcott, 4 Allen, 406. ^ Allen V. Thayer, 17 Mass. 299. i^ Brown v. Washington, 110 Mass. ^ Shields v. Hastings, 10 Cush. 247 ; 529 ; McCormick v. Carroll, 103 Mass. Ufford V. Dickinson, 12 Allen, 543. 151. § 21.] LEVY AND SKT-OFF OF EXECUTIONS. 533 the subjects of his return is conclusive so far as it affects par- ties and privies to the process returned.^ § 19. Levy on Mortgaged Lauds. — The following provisions are made by statute as to a levy on mortgaged real estate. " When a right of redeeming mortgaged lands is taken and set off on execution, the appraisers shall deduct the value of the encumbrance or the amount of the mortgage debt, when known, from the estimated value of the premises, and the sum so deducted shall be stated in the return of the exe- cution." ^ The levy will be invalid if the appraisers materially over- estimate the encumbrance,^ but a failure to take notice of the encumbrance will nat invalidate the levy.* When the land levied upon is subject to a mortgage which covers also other property, it is proper that only a propor- tionate part of the mortgage should be deducted.^ § 20. When a Mortgage is unknown and not allowed for. — If, after an execution is levied by setting off land, there proves to be a mortgage or other lien on the premises or an estate of homestead therein, not known or allowed for, or not fully allowed for, by the appraisers, the creditor will nevertheless be entitled to hold, by force of the execution, the premises, except the estate of homestead, as against the debtor, and may recover, in a new action against the debtor, the amount of the homestead estate, or the amount which he may lawfully pay on account of such mortgage or other lien, or so much thereof as has not been deducted and allowed for in the estimate of the appraisers.® § 21. Delivery of Seisin and Possession. — The officer who serves the execution must deliver to the creditor, or his attor- ney, seisin and possession of the premises so taken, so far as the nature of the estate and the title of the debtor will admit ; but when the estate so taken consists of a remainder, reversion, or right of redemption, the officer must not oust 1 Baker v. Baker, 125 Mass. 7-9. * Pettee v. Peppard, 125 Mass. 66, 68. " Pub. St. c. 172, § II. s Wadsworth v. WiUiams, 97 Mass. ' McGregor v. Williams, 10 Cush. 339. 526. 6 Pnb. St. c. 172, § 50. 534 LEVY AND SET-OFF OF EXECUTIONS. [CH. XLTI. the person who is lawfully in possession of the land, but must only assign to the creditor the right which the debtor had therein, and may make his return accordingly.^ The attorney who receives seisin need not have been ap- pointed by deed ; but the attorney of record in the suit may receive it. And, if the seisin be delivered to any person who undertakes to act for the creditor, a subsequent ratification on the part of the creditor, by any act, such as causing the execution to be recorded, will make the levy valid.^ The delivery of seisin to the creditor must be made in a reasonable time after the levy. In one case, where it was delayed for a month, the court held the levy void.^ Momentary seisin may be given by the officer to a cred- itor where another person is actually seised of the land levied on; but the officer must not actually expel and keep out the tenant in possession.* § 22. Levy on Real Estate which cannot be divided. — When the premises levied upon consist of a mill, mill privilege, or other real estate, which cannot be divided without damage to the whole, and which is more than sufficient to satisfy the execution, the levy must be made upon an undivided portion of the whole, to be determined by the appraisers, and to con- tain as much as they deem sufficient to satisfy the execution ; and the portion thus taken will be held in common with the debtor.^ The fact that the estate cannot be divided without damage to the whole must be stated in the officer's return or the levy upon an undivided portion will be void.* § 23. Levy on Estates for Life and other Interests. — The statutes make special provisions as to the manner of making a levy of an execution on an estate for life ; ^ on rents and profits ; ^ on land of which a person other than the debtor is actually seised;® on land held by a debtor in Joint ten- ancy or as a tenant in common.^" 1 Pub. St. c. 172, § 20. 6 Pickering B.Eeynolds, 111 Mass. 83. 2 Pratt V. Putnam, 13 Mass. .361. ' Pub. St. c. 172, § 16. 8 Waterhouse v. Waite, U Mass.207. « Pub. St. c. 172, § 17, 18, 19. ' Pub. St. c. 172, § 21. 9 Pub. St. c. 172, § 21. 6 Pub. St. c. 172, § 15. w Pub. St. c. 172, § 14. § 25.] LEVY AND SET-OFF OF EXECUTIONS. 535 § 24. Levy on Real Estate by Sale. — All real estate which may be set off on execution may, if the creditor prefers it, instead of being appraised and set off to the creditor, be sold on execution in the manner provided by statute. ^ When such lands or rights are sold, the officer authorized to serve the execution must make the sale by public auction to the highest bidder, and must execute, acknowledge, and deliver to the purchaser a sufficient deed, which, being recorded within three months after the sale in the registry of deeds for the county or district where the land lies, will give to the purchaser all the debtor's title to the lands or rights so sold.2 It is held that a sheriff's deed of an equity of redemption of mortgaged land, which is described as having been sold by him on execution, conveys no title, if it does not corre- spond with his description of the premises in his return upon the execution.^ The same rule seems applicable to such a sale of lands not mortgaged. Notice of the sale must be given as required by statute.* The sale may be adjourned for good cause. ^ § 25. When a Levy on Land takes Effect. — The statutes pro- vide that " the levy, if land is set off to the creditor, shall be considered as made at the time when such land is taken, or, in case of a sale, shall be considered as made at the time of the first notice of such sale, whether given to the debtor, or by posting up a notification thereof in a city or town, or by publishing the same as before prescribed; and whether the levy is made by set-off or by sale, the subsequent proceedings and the officer's return thereof shall be valid, although made and done after the return day or after the removal or other disability of the officer." ^ Any act done by an officer to whom an execution has been delivered to be levied on the real estate of a debtor by set-off, in pursuance of a purpose to make the levy, is a beginning to execute it and constitutes a seizure.'^ I Pub. St. c. 172, § 27. 6 Pub. St. c. 172, § 30. ^ Pub. St. c. 172, § 28. 6 Pub. St. c. 172, § 45. 8 Whiting V. Hadley, 3 Allen, 357. 1 Hall v. Crocker, 3 Met. 245, 250. 1 Pub. St. c. 172, §29. 536 LEVY AND SET-OFF OF EXECUTIONS. [CH, XLVI. § 26. Set-off of Executions. — Another mode of satisfying an execution is by setting off one execution against another in the hands of the officer having executions between the same parties, where the judgment defendant in one is plaintiff in the other. The statutes provide that executions between the same parties may be set off one against another, if required by either party, in the following manner : — " When one of the executions is delivered to an officer to be served, the debtor therein may deliver his execution to the same officer, whether the second execution is directed to the same or to any other officer, and the officer shall apply it as far as it will extend to the satisfaction of the first execution ; and the balance due on the larger execution may be collected and paid in the same manner as if there had been no set-off. " Such set-off shall not be allowed in the following cases : — " First. When the creditor in one of the executions is not, in the same capacity and trust, the debtor in the other ; " Second. When the sum due on the first execution was lawfully and in good faith assigned to another person be- fore the creditor in the second execution became entitled to the sum due thereon -, " Third. When there are several creditors in one execution, and the sum due on the other is due from a part of them only ; " Fourth. When there are several debtors in one execution and the sum due on the other is due to a part of them only ; " Fifth. Nor shall it be allowed as to so much of the first execution as is due to the attorney in that suit for his fees and disbursements therein." ^ An officer who holds cross executions cannot set off the costs due to the attorney in the suit. The statute applies only to taxable costs.^ § 27. Suspension of Levy and Effect thereof. — The statute provides that, " when any estate, either real or personal, is seized on execution, and the further service of the execution is suspended by reason of any prior attachment on the same 1 Pub. St. c. 171, § 25-27. = Dunklee v. Locke, 13 Mass. 525 ; Ocean Ins. Co. v. Rider, 22 Pick. 210. § 28.] LEVY AND SET-OFF OF EXECUTIONS. 537 estate, the estate shall remain bound by such seizure until it is set off or sold, in whole or in part, under the prior attach- ment, or until that attachment is dissolved. " If the estate is set off or sold in part under the prior at- tachment, or if that attachment is dissolved, the estate, or such part thereof as remains undisposed of, shall continue bound for thirty days thereafter, by the seizure on the execu- tion ; and the service of the execution may be completed in like manner as if the estate had been first seized thereon at any time within said thirty days, although the return day of the execution has passed." ^ When an ofScer has on an execution seized real estate on a certain day, and by reason of prior attachments further ser- vice is suspended, and afterwards the levy is completed, it takes effect and the title to the estate rests in the judgment creditor from the time of the seizure.^ § 28. Levy on Personal Property. — Goods seized on execu- tion must be safely kept by the officer, at the expense of the debtor, for four days at least ; and must be sold by public auction within fourteen days next after the seizure except as provided in the statutes, unless the debtor before such sale redeems them by otherwise satisfying the execution.^ The officer must give public notice of the sale as required by the statutes, and the sale may be made at any time after four days, and within thirty days after the seizure on the execution.* The snare of a tenant in common in chattels owned in common may be taken and sold on execution.^ The sale may for good cause be adjourned from time to time for any time not exceeding seven days, by a public declaration thereof at the time and place of adjournment.^ If the highest bidder for an article refuses to take and pay for it, the officer must sell the article again.^ The officer making such sale is required by statute in his return of the execution particularly to describe the goods sold and the sum for which each article was sold.^ 1 Pub. St. c. 171, § 52, 53. « Hayden v. Binney, 7 Gray, 416. 2 Hall V. Hoxie, 3 Met. 251. » Pub. St. c. 171, § 39. = Pub. St. c. 171, § 36. ' Pub. S*. c. 171, § 40. * Pub. St. c. 171, § 37, 38. 8 Pub. St. c. 171, § 41. 538 LEVY AND SET-OFF OP EXECUTIONS. [CH. XLVI. In Bergin v. Hayward,^ it is held that the sale at one time on several executions of a large variety of goods in one lot at one price is not necessarily illegal or improper. § 29. The money arising from the sale must be applied tO paying the charges and satisfying the execution, and the officer must return the residue, if any, to the debtor on de- mand, or must apply and pay over the same as follows : ^ — If the goods sold on execution have been attached by an- other creditor, or seized on another execution, either by the same or any other officer, or if before the payment of such residue to the debtor another writ of attachment or execu- tion against him is delivered to the officer who made the sale, the proceeds of the sale must be applied to the discharge of the several judgments in the order in which the respective writs of attachment or execution were served, and the resi- due, if any, must be returned to the debtor.^ If an attachment or seizure on execution is made of a share in an incorporated company, or of any other property which may be attached without taking and keeping the ex- clusive possession thereof, and if the same property is sub- sequently attached or taken in execution by another officer, he must give notice thereof to the officer who makes the sale under the first attachment or seizure ; and if the latter with- out such notice pays to the debtor the balance of the pro- ceeds of the sale, he wUl not be liable therefor to the person claiming under such subsequent attachment or seizure.* § 30. When an ofBcer has begun to serve an execution, and dies, or is incapable of completing the service and return thereof, the same may be completed by any other officer who might by law have served the execution if originally delivered to him. If the first officer has not made a certificate of his doings, the second officer must certify whatever he~ finds to have been done by the first, and must add thereto a certifi- cate of his own doings in completing the service. § 31. When an Officer is removed. — When an officer has begun to serve an execution, he may complete the service and 1 102 Mass. 414. ^ » Pub. St. c. 171, § 43. 2 Pub. St. c. 171, § 42. 4 Pub. St. c. 171, § 44. § 33.] LEVY AND SET-OFF OF EXECUTIONS. 539 return thereof although he is removed from ofl&ce, or although the service cannot be completed until after the return day.^ In such case the officer may date his return as of the, day of the seizure, to which all subsequent proceedings will relate.^ § 32. If either party dies after any real estate, goods, or chattels have been seized on execution, the service thereof may be completed in like manner and with the same effect as if both parties were still living, and the officer, when neces- sary, may appoint an appraiser for the deceased party .^ § 33. Interest of a Partner may be taken on Execution. — The interest of an individual partner in the partnership effects may be attached on mesne process and taken on execution. In the case of Pierce v. Jackson,* Chief Justice Parsons, in giving the opinion of the court, said : " At common law a partnership stock belongs to the partnership, and one partner has no interest in it but his share of what is remaining after all the partnership debts are paid, he also accounting for what he may owe to the firm. Consequently, all the debts due from the joint fund must first be discharged before any partner can appropriate any part of it to his own use,, or pay any of his private debts ; and a creditor of one of the part- ners cannot claim any interest but what belongs to his debtor." The effect of this rule is that the only attachable interest of one of the copartners by a separate creditor was the sur- plus of the joint estate which might remain after discharging all joint demands upon it, and necessarily gives a preference to partnership creditors in the application of the partnership property.^ This doctrine is held also in New Hampshire® and Connecticut,' and is a principle of common law. It is, however, held in Vermont that partnership creditors have no priority over a creditor of one of the partners as to the partnership effects.^ 1 Pub. St. c. 171, § 54, 55. ^ Lewis v. Webber, 116 Mass. 450, " Heywood v. Hildretb, 9 Mass. 393 ; 455 ; Story on Part. 379, and note. Hall V. Hoxie, 3 Met. 251-253. « Tappan v. Blaisdell, 5 N. H. 190. 8 Pub. St. c. 171, § 56. ' Filley v. Phelps, 18 Conn. 294. * 6 Mass. 242. 8 Reed ;;. Shepardson, 2 Vt. 120. 640 LEVY AND SET-OFF OF EXECUTIONS. [CH. XLVI. § 34. Ho'w to levy Execution on a Partner's Interest. — " In cases of this sort, therefore, the real position of the parties relative to each other seems to be this : the partnership prop- erty may be taken in execution upon a separate judgment and execution against one partner ; but the sheriff can only seize and sell the interest and right of the judgment partner therein, subject to the prior rights and liens of the other partners and the joint creditors therein. By such seizure the sheriff acquires a special property in the goods seized ; and the judgment creditor himself may, and the sheriff also, with the consent of the judgment creditor, file a bill in equity against the other partners for the ascertainment of the quantity of that interest before any sale is actually made under the ex- ecution." 1 The judgment creditor, however, is not bound, if he does not choose, to wait until such interest is so ascertained ; but he ma)"- require the sheriff immediately to proceed to a sale ; which order the sheriff is bound by law to obey. In the event of a sale, the purchaser at the sale is substituted to the rights of the execution partner quoad the property sold, and becomes a tenant in common thereof; and he may file a bill, or a bill may be filed against him by the other partner, to as- certain the quantity of interest which he has acquired by the sale.2 This doctrine has been held not to apply to cases of mere dormant partners. There no such priority is given to an attachment against the partners over an attachment against the ostensible partner.* 1 Story on Part. § 263, and notes. » Lord v. Baldwin, 6 Pick. 348 ; Sto- '^ lb. ry on Part. § 330, note. § 3.] TENDEK. 541 CHAPTER XLVII. TENDEB. § 1. Object of Tender. — Tender is an offer to pay a debt or discharge a duty. It may be a tender of money or of specific articles. A tender is often important when a debt is due, and the creditor claims a greater sum than the debtor believes to be due. The object of the debtor in making a tender is to avoid the liability of the costs of an action on the claim. If the tender is made before suit, unless the plaintiff recover a sum greater than that tendered, he can recover no costs, but the defendant will recover costs of the plaintiff. If the tender be made after suit is commenced, in addition to the sum ten- dered for debt or damage, the defendant must tender a sum sufficient to pay the costs of the suit to the time of the tender. In such case the plaintiff can recover no costs after the tender, unless he recover as damages a greater sum than the amount tendered therefor, and the defendant will recover costs from the time of the tender. § 2. The legality of the tender may be put in issue. In a work on practice, therefore, a chapter relating to the plea of tender involves everything that is requisite to the validity of the tender. § 3. Plea and Effect of a Tender. — A tender of money is an admission of indebtedness to the amount tendered.^ It is of no avail unless an action be brought on the claim for which it is made. The tender must then be pleaded and the money tendered paid into court.^ The money so paid in is a pay- 1 Currier v. Jordan, 117 Mass. 260; » Brickett v. Wallace, 98 Mass. 529. Hosmer v. Warner, 7 Gray, 186. 542 TENDER. [oh. XLVH. ment pro tanto. It belongs to the plaintiff, and cannot again be taken out by the defendant. Whether accepted or not, it must be considered as stricken out of the declaration ; and, unless the plaintiff prove a sum to be due beyond what is paid in, the verdict should be for the defendant.! If the tender was made before the action was commenced, the plaintiff can recover no costs unless he prove a greater sum to be due than was paid in.^ § 4. Custody of Sum tendered. — The twenty-fifth rule of the Superior Court of Massachusetts provides that, in all cases where money is paid into court upon tender or upon the common rule, the money shall be considered in the cus- tody of the clerk, whose duty it shall be to receive it, and to pay it to the plaintiff on request. And, if the plaintiff shall not be ready to receive the same of the clerk as soon as paid, it shall be the duty of the clerk to deposit the same in some bank, and not to draw the same, except for the purpose of paying the same over to the party entitled thereto. Such is probably the practice in. all the courts of the State having a clerk. Some of the police and district courts have adopted a similar rule. The ninth rule of the Supreme Judicial Court makes the same provision " in all cases in which money shall be paid into court." In police or district courts having no clerk, and before trial justices, it would probably be held sufficient if the defendant should bring the money, tendered into court, and make pro- fert there, and then hold the money in readiness for the plaintiff. § 5. What Plea of Tender admits, — If the defendant in- tends to rely upon his tender, he must not first put the plain- tiff to the proof of his right to the debt, nor to the proof of his damages, except so far as the plaintiff claims beyond the amount tendered. The defendant's plea or answer should admit the plaintiffs claim to the extent of the sum tendered, 1 Rules of S. J, Court, 8 ; Rules of = Stevenson v. York, 4 T. R. 10. Superior Court, 20. § 7.] TENDER. 543 and deny that he is entitled to receive more, and conclude with a profert of the money in court.^ § 6. Plea of Tender iu Inferior Courts. — In the Supreme Judicial Court and Superior Court, the plea of tender must of course be in writing ; ^ but in the police courts, the municipal and district courts, and before trial justices, tender may be pleaded either orally or in writing.^ The plea, however made, must always be made with & pro- fert in curia. The omission of the profert in the plea has been held to be a good ground of demurrer.* § 7. The Sum tendered must be Sufficient. — A tender made after the day of payment must include interest. It is gener- ally advisable to tender a little more than the person making the tender supposes to be due, as a protection in case of pos- sible mistakes as to the amount justly due. It is no objection to a tender that the sum tendered is larger than the amount due, no return of the excess being requested. The money tendered should be shown to the party to whom it is tendered, the amount stated to him, and the debt or lia- bility on account of which the tender is made, and if possible laid down in his presence. It has, however, been held that an offer of money in bags is a legal tender, and that it is the duty of the receiver to count it and see that there is enough.^ A tender of the amount of the debt without costs is insuffi- cient after the commencement of an action, and for this pur- pose the action is commenced when the writ has been sued out and sent to an officer for service.^ The statutes provide that " the payment or tender of pay- ment of the whole sum due on any contract for the payment 1 1 Tidd's Pr. 336 ; 1 Chitty's PI. his writ he tendered to the plaintiff the 541 ; Story's PI. 105; Brickett v. Wal- sum of dollars; and now brings lace, 98 Mass. 528, 529. the same into court for the plaintiff. 2 Pub. St. c. 155, § 27. By his attorney." The following is a proper form for a plea of tender:— a storer ». McGaw, U Allen, 527; „ „ „ Brickett I'. Wallace, 98 Mass. 528. Superior Cooet. , Parley v. Vance, 17 Mass. 389. " Suffolk, ss. Teem, 1878. 5 Behaly v. Hatch, 1 Miss. (Walk.) "A.B.Y.C.D. 369. "And now the defendant comes and ° Emerson v. White, 10 Gray, 351. says that before the plaintiff sued out 544 TENDER. . [CH. XLVH. of money, although made after the money has become due and payable, may be alleged in an answer to an action subse- quently brought, in like manner and with the like effect as if such payment or tender had been made at the time prescribed in the contract." ^ " A tender may also be made after an action is brought on such contract, of the whole sum due thereon with the legal costs of suit incurred up to that time : provided, it is made four days at least before the return day of the original writ." In the last-mentioned case the tender may be made to the plaintiff or his attorney.^ § 8. 'When Costs must be tendered. — If a tender made after an action is brought is accepted, the plaintiff or his attorney must, at the request of the defendant, sign a certificate or notice thereof to the officer who has the writ, and deliver it to the defendant ; and if any further costs are incurred for a service made by the officer after the tender and before he receives notice t]jereof, the defendant must pay the same to the officer, or the tender will be invalid.^ A tender of the amount of a debt without costs is insuffi- cient after a writ has been sued out thereon and sent to an officer for service, although not yet actually delivered to him.* § 9. Where a Tender is to be made. — If a place be named in a contract for the payment, a tender of it must be made at the place named. If no place be named, the tender must be to the payee. When, however, a party designedly absents himself from home for the fraudulent purpose of avoiding a tender, he cannot object that no tender was made.^ A tender to a clerk in the plaintiff's store for goods pur- chased at such store, is sufficient, though prior thereto the claim had been lodged with an attorney for suit.^ In a contract for the sale of lands specifying the day of payment but no place, it was held that a tender at the house 1 Pab. St. c. 168, § 23. « 5 Dane Ab. c. 170, art. 6 ; South- 2 Pub. St. c. 168, § 24, 25. worth v. Smith, 7 Cush. 391. » Pub. St. c. 168, § 26 ; c. 183, § 31. « Hoyt v. Byrnes, U Me. 475. * Emerson v. White, 10 Gray, 351. § 10.] TENDER. 545 of the vendee to the son of the vendor,, who was living with the vendee, was good, the vendor having promised the vendee that he would be at home at the time, but having absented himself purposely.^ If the goods are cumbrous and the place of delivery is not designated nor to be inferred from collateral circumstances, the presumed intention is, that they were to be delivered at any place which the creditor might reasonably appoint ; and accordingly it is the duty of the debtor to call upon the cred- itor, if he is within the State, and request him, to appoint a place for the delivery of the goods.^ If the creditor refuses, or, which is the same in effect, names an unreasonable place, or avoids in order to prevent the notice, the right of election is given to the debtor ; whose duty it is to deliver the articles at a reasonable and conven- ient place, giving previous notice thereof to the creditor, if practicable. And if the creditor refuses to accept the goods when properly tendered, or is absent at th» time, the prop- erty nevertheless passes to him, and the debtor is forever absolved from the obligation.^ § 10. "What constitutes a legal Tender. — In making a ten- der, it is advisable in all cases, if possible, to use money which is made legal tender by the laws of the United States, although bank notes are held to be a good tender unless ob- jected to on that account.* To constitute a legal tender, the party must produce and offer the money tendered uncon- ditionally.^ The offer of the money must be unconditional and unqualified. The person making the tender must not demand a receipt for the money tendered, or that the sum shall be received in full payment of the debt due, or as a settlement, or that it shall be indorsed on a note or other document, or that the note or document be given up. If the performance of any such conditions are required, the tender 1 Smith V. Smith, 2 Hill (N. Y.), of United States v. Bank of Georgia, 10 351. Wheat. 333; Brown v. Simmons, 44 2 2 Greenl. Ev. § 606. N. H. 475. To the contrary, Moody v. 3 2 Greenl. Ev. § 610. Mahurin, 4 N. H. 296. * Snow 1). Perry, 9 Pick. 539 ; Bank ^ Ladd v. Patten, 1 Cranch, C. C. 263. 35 546 TENDEK. [CH. XLVII. is insufficient,^ unless the defect is in some manner waived by the party to whom the tender is made. A mere offer to pay when it does not appear that the party had the money ready does not amount to a tender.^ In the case of Rogers v. Rutter,^ it is held that if the money tendered is left with the person to whom it is teur dered, and retained by him, this fact should be duly pleaded in court. A tender of money to a person who refused to ac- cept it, but, upon its being left with him against his wish, afterwards refused to give it up, is held sufficient. It does not appear in the opinion of the court in this case, whether the refusal of' the party to accept the sum tenderfid, or the refusal afterwards to give it up, were deemed impor- tant to that decision. When the case shall occur, it may reasonably be presumed that where money is tendered to a creditor, and left in his possession and retained by him, it will be held to be a sufficient tender, without any refusal on his part to give it up. The tender of the money is an offer of the sum to the cred- itor, and leaving it in his possession is a continuiiig offer to be at all times open for his acceptance. No mode of keeping the money in constant readiness for the creditor could be more favorable to him. § 11. What Money is Legal Tender. — By the constitution of the United States, the power "to coin money and regulate the value thereof and of foreign coin " is given to Congress, and the States are prohibited from making anything " but gold and silver coin tender in payment of debts." The General Statutes of the United States, t. 39, provides that no foreign gold or silver coins shall be a legal tender, and prescribes what shall be legal tender. It provides that " the gold coins of the United States shall be legal tender in all payments at their nominal value, when not below the standard weight and limit of tolerance provided by law for the single 1 Loring v. Cooke, 3 Pick. 48 ,- Rich- ^ Fuller ». Little, 7 IS. H. 535 ; Bake- ardson v. Boston Laboratory, 9 Met. 42; man v. Porter, 12 Wend (N. Y ) 627. Sanford v. Buckley, 30 Conn. 344 ; Hoi- » 11 Gray, 410. ton K.Brown, 18 Vt. 224; Perkins v. Beck, 4 Cranch, C. G. 68. § 12.] TENDER. 547 piece, and when reduced in weight below such standard and tolerance shall be a legal tender at valuation in proportion to their actual weight ; " that " silver coins of the United States shall be a legal tender at their nominal value for any amount not exceeding five dollars in any one payment ; " that " the minor coins of the United States shall be a legal tender at their nominal value for any amount not exceeding twenty- five cents in any one payment,; " that " United States notes shall be lawful money and a legal tender in payment of all debts public and private within the United States, except for duties on imports and interest, on the public debt;" that "demand treasury notes authorized by the act of July 17, 1861, c. 5, and the act of February 12, 1862, c. 20, and treas- ury notes issued under the authority of the acts of March 8, 1863, c. 73,^ and June 30, 1864, c. 172, shall be legal tender to the same extent as United States notes : Provided, that treasury notes issued under the last-named act shall not be a legal tender in payment or redemption of any notes issued by any bank, banking association, or banker, calculated and intended to circulate as money." These acts, making treasury notes a legal tender, are held to be, constitutional by numerous decisions. The same chap- ter provides that no foreign gold or silver coins shall be a legal tender in payment, of debts. A statute of the United States of February 28, 1878, c. 20, § 1, provides that silver dollars, shall be legal tender at their nominal value for all debts and dues public and private, ex- cept when otherwise expressly stipulated in the contract. § 12. To whom a Tender must be made. — "A tender must be made to the creditor himself or to his agent, clerk, attorr ney, or servant, who has authority to receive the money. A tender to an attorney-at-law, to whom the demand has been entrusted for collection, or to his clerk or other person having charge of his oifice and business in his absence, is good. And generally, if a tender be made to a person whom the creditor permits to occupy his place of business in the apparent char- acter of his clerk or agent, it is a good tender to the creditor. So if it is sent to the debtor's house servant, who delivers it 548 TENDER. [CH. XLVU. to a servant in the creditor's house, by whom it is taken in and an answer returned as from the master, this is admissible evidence to the juiy in proof of a tender." ^ If the clerk or servant is directed not to receive the money because his master has left the demand with an attorney for collection, still the tender to him is a good tender to the principal.^ A tender may be made to one who is in fact the attorney of the creditor, although he deny his authority.^ § 13. Keeping the Tender good. — The tender being made and refused, what shall be done to keep the tender good ? It may be proper here to suggest that a person making a tender should have present a suitable person as a witness to the tender and what is said and done in relation to it. The per- son making a tender should always hold himself in readiness to meet a demand for the money or thing tendered. In some cases the money has been deposited with a third person to be paid to the creditor whenever he should call for it ; but in the case of Town v. Trow,* in Massachusetts, it was held that the creditor is under no obligation to apply to the depositary, and that if the debtor, upon a subsequent demand, does not pay or tender the sum due he loses the benefit of the previous tender. § 14. The Person making the Tender must hold it. — In the case just cited, the court say, " It is necessary that the person making the tender should always hold himself in readiness to meet a demand for the money or thing tendered, because the party to whom it is due has a right to call for it at any time ; and if he fails to pay or deliver it on request, he loses the benefit of the tender. " But this principle IS to be received with reasonable limita- tions and qualifications. It does not impose upon the person making the tender the duty of having the money about his person or in his actual possession at all times and in all places. It would be sufficient to have it in readiness to be delivered at his residence or place of business, or, if a large sum, in 1 2 Greenl. Ev. § 606. 3 Mclniffe v. Wheelock, 1 Gray, 600. 2 Moffat V. Parsons, 5 Taunt. 307. * 24 Pick. 168. ' § 15.] TENDEK. 649 some safe and convenient place of deposit. If a demand was made at a distance from the place where it was kept, he would have a right either to deliver it there, or to take a reasonable time to produce and deliver it where the demand was made." The person making the tender must himself be responsible for the money tendered. He is the only person on whom a demand for it can be made. He cannot require the other party to call upon a third person for the money. The de- mand may be made upon the debtor, and not upon any one else. It must, however, be made at a reasonable time and place. The debtor is bound at all times to be prepared to meet -it. But for this purpose he is to have a convenient time and opportunity, and if he uses ordinary diligence and promptness in complying with a demand for it he is not guilty of any neglect of his legal duty. In this manner a tender may be kept good until after the entry in court of actions on the claim for which the tender is made. § 15. Plea of Tender after an Appeal. — When a tender is pleaded orally in a police or district court, or before a trial justice, and is carried by appeal to the Superior Court, the defendant must plead his tender in writing, and must also plead and show that the tender was pleaded orally in the lower court, and profert there made of the sum tendered, and that the money was in such court in readiness at all times for the plaintiff. The record of the court appealed from should give the oral pleas, both the general denial and the tender.^ Where a tender is pleaded and the money is brought into court, the proceedings are substantially the same as where money is brought into court under the common rule. If a defendant, in answer to an action of contract in the police court, pleads a tender of the amount due, alleging a profert in court, but in fact without placing the money in the custody of the court, and offers the same, in open court, to the plaintiff, who refuses to receive it, on the ground that he is entitled to a larger sum, and, after judgment for the plain- 1 Brickett v. Wallace, 98 Mass. 528. 550 TENDEK. [CH. XLVII. tiff, the defendant appeals to the Superior Court, and there properly pleads the profert and pays the money into the court, it is too late then for the plaintiff to object to the irregularities in the lower court.^ § 16. Tender of Chattels. — The rules heretofore given as to a 'tender of money, so far as applicable regulate also the tender of chattels. A tender of specific articles, on the day and place specified for performance, when a note is payable in specific articles, is a satisfaction of the contract ; and, if the tender is not ac- cepted, the right of action ' is not revived by a subsequent demand and refusal.^ A debt payable in specific articles at a certain time is pay- able ini money after the expiration of that time, unless there has been a tender of the articleis at the time.^ When a tender is pleaded, the burden of proof is on the party pleading it.* § 17. When a trespass on lands has been casual and involun- tary, the trespasser may tender sufficient amends before an action is brought ; and if afterwards sued, he may in his answer disclaim all title to the land, allege that the trespass was casual and involuntary, and set forth the tender, bringing the money into court. If upon the trial the allegations ap- pear to be true, and the damages assessed do not exceed the amount so tendered, the defendant will recover his costs. If a tender was not made before the commencement of the action, the defendant may disclaim title, allege that the tres- pass was casual and involuntary, and bring into court suffi- cient amends, with the costs of suit up to that time. If the plaintiff does not accept the same in satisfaction, and if upon trial the' allegations appear to be true, and the damages assessed do not exceed the amount so brought into court, the defendant will recover his costs.^ The defendant should pay the money into court when he files his plea.^ 1 Storer v. McGaw, 11 Allen, 527. * Pulsifer v. Shepard, 36 111. 513. 2 Lamb «. Lathrop, 13 Wend. (N.Y.) » Pub. St. c. 179, § 10, 11. 95. .6 Warren ». lirichols, 6 Met. 261, 268. ' HamUton v. EUer, 7 Ired. (N. C.) L. 159. § 20.] TENDEE. 551 § 18. A trespass committed under a claim of right is not a casual and involuntary trespass within the meaning of the statute above quoted.^ § 19. Tender of Damages for taking Land. — A person or corporation against whom damages are claimed for taking or injuring land by authority of law, or upon whose property a lien is claimed, may make a tender or an offer of judgment in any proceedings relative thereto in like manner and with like effect as in matters of contract ; but where an assessment of damages is required before applying for a jury, no tender or offer of judgment should be made until after such assessment, nor of less amount. These provisions as to tender do not apply to tender in cases under the mill acts.^ § 20. Tender of Damages occasioned by a Mill-Dam. — In every original complaint brought by the owner of land alleged to be injured by a mill-dam, the respondent may bring into court and there tender any sum that he deems proper to be paid to the complainant for the damages incurred up to the time of such tender ; and may also offer to pay any certain annual compensation for the damage that may be thereafter occasioned by the dam in question ; and if the complainant does not accept the same, with his costs up to that time, but proceeds in the suit to recover greater damages or compensa- tion, he will, unless he recovers greater damages or greater annual compensation than was so offered, be entitled to his costs up to the time of the tender, and the respondent shall be entitled to recover his costs after that time.^ Such a tender is an admission of the complainant's right of action, and he cannot afterwards rely on a plea in bar pre- viously filed, denying such right.^ 1 Viall V. Carpenter, 16 Gray, 285. ' Pub. St. c. 190, § 37. " Pub. St. c. 168, § 27. 4 Hosmer o. Warner, 7 Gray, 186. 552 EQUITY JURISDICTION AND PRACTICE. [CH. XLVIII. CHAPTER XLVIir. EQUITY JXTEISDICTION AND PEACTICB. § 1. A chapter on Equity Jurisdiction and Practice was DO part of the original plan of this work, but the recent enact- ment of a statute entitled " An Act granting Jurisdiction in Equity to the Superior Court," ^ seems to require a departure from that plan to some extent. That statute not only grants to the Superior Court a modified form of equity jurisdiction, but makes important changes in the laws in relation to ac- tions at law and suits in equity in that court and in the Supreme Judicial Court, which must necessarily lead to im- portant changes in practice in both of those classes of cases in each of those courts. § 2. Form of a Bill in Equity provided by the Statute. — The statute referred to provides that "in a suit in equity in the Supreme Judicial or Superior Court, the bill need not contain any address to the court, or the usual commencement, or any prayer for an answer, for general 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 demur- rer or plea need not contain any protestation or concluding prayer, and the omission 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." * The bill may be signed by the party or his attorney, and no other signature is required.^ The statute dispenses with all the formal parts of the bill 1 St. of 1883, c. 223. 8 St. of 1883, § 11. 2 St. of 1883, § 10. § 5.] EQUITY JUKISDICTION AND PRACTICE. 553 heretofore used, and reduces it to a simple statement of the facts, which are the grounds of the action, not essentially differing in form or substance from a declaration in an action at law. Like a declaration it may be inserted in a writ or filed separately.^ § 3. Answer to a Bill. — The statute provides that "an answer to a bill shall not be sworn to or under seal except in cases of bills filed for a discovery." ^ This provision abolishes a fundamental rule in equity. Heretofore an answer in a suit in equity was always under oath unless the plaintiff dispensed with it in his bill.^ A rule of the Supreme Judicial Court provides that " when a bill shall be filed other than for discovery only, the plaintiff may waive the necessity of the answer being made on the oath of the defendant." * § 4. Adequate Remedy at Law is no Defence in Equity. — The statute further provides that "in all proceedings in the Su- preme Judicial Court or the Superior Court no action or suit shall be defeated 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 proceeding, whether at law or in equity, shall at any time before final judgment be amenda- ble at the discretion of the court, and may be amended upon such terms as the court may determine." ^ This provision changes a fundamental rule in equity, for it has always been held to be a good defence to a suit in equity, that the plaintiff has a plain and adequate remedy at law. The removal of this ground of defence to suit in equity opens a new and wide field for the exercise of equity jurisdiction. § 5. Procedure, Trial, and Judgment or Decree. — It is fur- ther provided by statute that "in actions at law in the said courts, the defendant shall be entitled to allege as a defence any facts that would entitle him in equity to be absolutely and unconditionally relieved against the plaintiff's claim or 1 St. of 1883, § 10. * Rules. 2 St. of 1883, c. 223, § 10. » St. of 1883, c. 223, § 8. 8 Story's Eq. Pi. 670. 554 EQUITY JURISDICTION AND PEACTICE. [CH. XLVIII. cause of actioQ, or against a judgment obtained by the plain- tiff in such action ; and the plaintiff shall be entitled to avail himself, in answer to any defence alleged by the defendant, of any facts that would avoid such defence in equity, or would entitle the plaintiff to be absolutely and uncondition- ally relieved in equity against such defence." ^ This section of the statute relates both to the answer and the trial. By it the defendant is authorized, in an action at law, to allege any facts in defence which would entitle him to relief in equity. If he may allege them in his answer he may prove them on trial in his defence. The facts proved become the grounds for the final judgment or decree of the court, and the judgment required by the facts may be in the form of a judgment at law or a decree in equity. § 6. Judgment. — The question then arises, Can the court enter in such a case a judgment or decree appropriate to the facts proved in the case ? It would be an anomaly in judicial proceeding if such a judgment could not be entered, and the language of the statute leaves it to be implied that the appropriate judgment may be entered either for the plaintiff or defendant. It fol- lows, therefore, that, under the authority conferred by. the statute^ the court in au action at law may make a final decree in all respects like a decree in equity, or enter a final judg- ment at law, or a judgment or decree embodying both as may be required by the facts proved in. the case. § 7. Similarity of Procedure at Law and in Equity. — If this be the correct construction of the statute, the difference be- tween an action at law and a suit in equity is merely nominal. The requirements as to a declaration are substantially the same as the requisites of a bill. Each is required to be merely a statement of the facts which constitute the grounds of action. Each may be inserted in a writ served in the same manner, entered in the same court, the same answer made, and the same facts proved at the trial. In each case, whether it be in action at law or a suit in equity, the same judgment or de- 1 St, of 1883, c. 223, § 14. §9.] EQUITY JURISDICTION AND PEACtICK 555 cree may be awarded without regard to the form of action, but having reference only to the facts proved in the case. The statute seems to be a step towards the policy already adopted in England and some of the United States, of abol- ishing all distinctions between actions at law and suits in equity, and allowing all causes of action, however diverse, if between the same parties, to be joined in one suit, and all defences, legal and equitable, to be made in the same suit. Although the distinction between an action at law and a suit in equity is not abolished by the statute, by it it appears to be made unimportant by which process the action is com- menced. § 8. Is a Change of Process Necessary. — It may be said that if in an action at law it should appear that the defend- ant was entitled to equitable relief, the process might be changed to a suit in equity, as provided by the statute. But why should the process be so amended if the relief needed can be had without the amendment? The pro- vision with regard to the amendment is merely permissive.* It does not require that any action at law shall be changed to a suit in equity while the section of the statute here quoted provides in substance that an equitable defence may be set up in an action at law.^ Why, then, should not an equitable decree be made in the case without an amendment of the process ? It is common practice to do this in an action by a writ of entry to foreclose a mortgage.® § 9. General Rules of Practice. — In relation to practice in suits in equity the statute provides that, "proceedings, pro- cesses and practice 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 otherwise provided, be rules of the Superior Court in the exercise' of its equity jurisdiction-, as far as those rules are applicable."* It must be apparent to every lawyer that many of the gen- 1 St. of 1883, c. 223, § 17. ,8 See ante, p. 80-83. s lb. 4 St. of 1883, c. 223, § 3. 556 EQUITY JUEISDICTION AND PEACTIOE. [CH. XLVIH. eral rules of that court are not applicable to the law and practice as modified by the statute under consideration. Such of the statutes as are so applicable are made so only for " the time being." It was obviously the expectation and intention of the legis- lature that new rules would soon be adopted by the courts, applicable to the provisions of the statute. The future practice in these courts in actions at law and in suits in equity depends much upon the general rules of practice which may be adopted by them. Until such rules shall be promulgated the full effect of the changes made by this statute cannot be appreciated. § 10. Equity Jurisdiction granted to Superior Court. — Equity jurisdiction of this modified form is granted to the Superior Court by the statute. It provides that " the Superior Court shall have original and concurrent jurisdiction with the Su- preme Judicial Court in all matters in which relief or dis- covery in equity is sought, with all the powers and author- ities incident to such jurisdiction, and may issue all general and special writs and processes required in proceedings in equity to courts of inferior jurisdiction, corporations and persons when. necessary to secure justice and equity.-" ^ The second section of the statute makes certain limita- tions to the application of the first section. It provides that " all sections of chapter 151 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 sections so applied, and in this act, the phrase, ' full court ' shall mean the Supreme Judicial Court in banc." § 11. Commencement of Suit. — In commencing a suit the bill may be inserted in an original writ of summons, summons and attachment or trustee process,^ or it may be filed in the office of the clerk of the court, and a writ of subpoena issued according to the usual course of proceedings in equity ; ^ or 1 St. of 1883, c. 223, § 1. « Pub. St. c. 151, § 5. 2 Pub. St. c. 151, § 5; St. of 1883, C. 223, §10, 11. § 17.] EQUITY JURISDICTION AND PEACTIOE. 557 the plaintiff may at his election, upon the filing of his bill, take out a writ of summons and attachment or a trustee pro- cess instead of a writ of subpoena.^ § 12. As to Amendments, see ante, p. 289. § 13. Return Day and Entry of such Suit. — The statute provides that " such suits shall be entered upon the same docket as other cases in the Superior Court. All process shall be made returnable at the term next after fourteen days from the date of the process, if required to be served fourteen days before the return day, or at the term next after thirty days from such date, if required to be served thirty days be- fore the return day, or at any rule day within three months after the date of the process." ^ § 14. Removal of the Suit to the Supreme Judicial Court. — The defendant may remove such suit from the Superior Court to the Supreme Judicial Court when he makes affidavit that the matter involved in the suit equals four thousand dollars in value, and that he has a substantial defence, and intends to bring the cause to a hearing. The statute makes provision as to the time, manner, and conditions of such removal.^ The Superior Court may also transfer a suit in equity from that court to the Supreme Judicial Court, to be heard with a suit or cross-suit pending in the latter court, when in the opinion of the former court it ought to be so heard.* § 15. Injunctions. — Either of said courts may issue injunc- tions, but neither can dissolve an injunction issued by the other except after an appeal as provided in the sixth sec- tion of the act.^ § 16. Issues and Venue. — The Superior Court is authorized to 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 the cause is pending.^ § 17. The Court always Open. — The statute provides that "for hearings, and making, entering and modifying orders and decrees in equity causes by a single justice, and issuing 1 St. of 1883, § 11. 4 St. of 1883, c. 223, § 9. = St. of 1883, c. 223, § 5. 6 St. of 1883, u. 223, § 12. S St. of 1883, c. 223, § 8. f St. of 1883, u. 223, § 16. 558 EQUITY JUfilSDICTION AND PEACTICB. [CH. XLTIII. writs in such causes, the Superior Court shall be always open in each county, except on holidays established bylaw; and all such proceedings shall be deemed to be had in court, and not in chambers, whether the court at the time thereof is sitting or open for other purposes or not." ^ § 18. An appeal may be taken from a decree in equity, of the Superior Court to the Supreme Judicial Court, and the same modified; or annulled by the Appellate Court. The court by whom the decree was made is also required at the request of the appellant, to report the facts found by him as far as material, provided such request be made within four days after the appellant has been notified of the decree ; otherwise the granting of such report is in the discretion of the justice.^ § 19. Frivolous or Immaterial JEixceptions. — The statute pro- vides that " 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 proceedings dt appears that the appeal or exceptions are frivolous, immaterial, or intended for delay, the court may, either npon 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."^ §20. SCHEDULE OF FORMS. [1. Bill for Redemption.] In the CoiTEX. , ss. Between A. B. of in the county of and C. D. of in the county of > AND Plain tifiFs, E. F. of in the county of » Defendant. 1 St. of 1883, c. 223,§ 4: " St. of 1883, c. 223, § 6, 7.' » St. of 1883, c 223, § 15. § 20.] EQUITY JUKISDICTION AND PRACTICE. 659 Bill or Complaint. 1. By a deed of mortgage dated the 1st of May, 1872, and recorded with Deeds, book , page , the plaintififs 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 1st of May, 1875. 3. On or about the 15th of June, 1875, the defendant took possession of the premises comprised in the said mortgage, and has ever since continued in pos- session 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 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 defendant or by any other person by his order or for his use, or which might but for his wilful defiiult have been so received, 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 sura (if any) which shall so be found due upon the mortgage, the plaintififs 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 CouKT. ss. A. B. and Another v. E. F. ANSWBK. 1. This defendant admits the allegations contained in the 1st, 3rd, and 4th paragraphs of the plaintiffs bill. 2. This defendant admits that the interest upon the said mortgage was duly paid up to the 1st 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 mort- gage and the interest thereon ; and on the 15th of June, 1875, after the said 560 EQUITY JURISDICTION AND PKA.CTICE. [CH. XLVUI. default, this defendant made an open, peaceable, and unopposed entry on and took possession of the premises comprised in the said mortgage, for the purpose of fore- closing the right of redemption thereof; and a certificate of two competent witnesses to prove the said entry was duly made and sworn and recorded 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 Defendant. [3. Demurrer.] In the CooBT. ss. G. H, •/. T. L. and Others. DEMURREE [or DEMURRER OF T. L,. AKD 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. § 2.] COSTS. 561 CHAPTER XLIX. COSTS. § 1. General Rule as to Costs. — In proceedings according to the course of the common law, costs are a mere incident of a judgment. The prevailing party is entitled to costs, except in those cases where a different provision is made by statute. This rule applies to all such cases in the Supreme Judicial Court, the Superior Court, and also in the police, municipal, and district courts, and before trial justices. The costs must be taxed according to the rules and directions of the law in force at the time when the final judgment is rendered.-^ § 2. Limitations of this Rule. — Tn case of an appeal to the Superior Court from either of the inferior courts, the statutes provide that " if the plaintiff appeals from a judgment in his favor, or if a defendant appeals from a judgment in his favor upon a demand in set-off, and the party so appealing does not recover in the court above a greater sum for debt or damages than he recovered by the first judgment, he shall recover no costs arising after the appeal, and shall pay the costs of the adverse party arising after the appeal." ^ In personal actions brought originally in the Superior Court, except actions of replevin, if the plaintiff finally re- covers a sum not exceeding twenty dollars for debt or dam- ages, he will be entitled to no costs, except in cases vrhere an easement or title to real estate is concerned, or where the plaintiff's claim is reduced by set-off.^ In personal actions, it is held that the plaintiff is entitled to full costs who recovers as damages a sum exceeding twenty dollars in the aggregate 1 Pub. St. c. 198, § 1 ; Brigham v. ^ Pub. St. c. 198, § 4. Dole, 2 Allen, 49-51 ; Fessenden e. » Pub. St. c. 198, § 5-7. Nickerson, 125 Mass. 316. 36 562 COSTS. [CH. XLIX. on different counts in his declaration, although he recovers no more than twenty dollars on any one count.^ In actions at law brought originally in the Supreme Judicial Court, or remoTcd by consent thereto, if the plaintiff does not recover, either in the value of the property claimed, or of the estate in controversy, or in damages, an amount equal to three hundred dollars, to be assessed by the jury who try the cause, by an assessor agreed upon by the parties, or by an award of arbitratoi's, he will recover no costs. ^ When a defendant brings money into court, and offers the same in satisfaction of the damages, the plaintiff is entitled to the costs which had previously accrued, though he may not recover a larger sum than is so brought into court." If a plaintiff brings, several actions when one would have sufficed, he can recover costs in only one of them, unless the court shall otherwise order.* If the defendant answers in defence that he has been dis- charged in bankruptcy or insolvency, and the action is dis- continued, or the plaintiff nonsuited solely in consequence of such answer, the defendant will recover no costs.^ If the wages for the personal labor and services of a per- son are attached by the trustee process on a claim other than for necessaries, and the plaintiff does not recover a sum amounting to five dollars as debt, he will recover no costs of suit.8 In any action brought under the trustee process in which the damages assessed do not exceed in amount the sum of ten dollars, exclusive of all costs which have accrued in any former action, the plaintiff will recover no costs.'' § 3. The expression, civil actions, in the rule just stated, is not intended to include all civil proceedings in the courts. There are various proceedings under the statutes, which are not within the general laws regulating costs in civil action, but depend upon special provisions of statute. In such cases 1 Joannes v. Pangborn, 6 Allen, 243. 6 pn^. St. c. 198, § 2. 2 Pub. St. c. 198, § 8. 6 j>„b. St. c. 183, § 87. » Pub. St. c. 198, § 9. 1 Pub. St. c. 183, § 88. « Pub. St. c. 198, § II. § 4] COSTS. 563 the prevailing party may or may not recover costs, according to the terms of the statutes applicable thereto. Some of these proceedings will be referred to hereafter. § 4. Who is entitled to Costs as the prevailing Party. — As a general rule, if the plaintiff finally recovers judgment for any sum, he is the prevailing party, and is entitled to costs.^ In New Haven and Northampton Co. & Littlefield v. North- ampton,^ Chief Justice Gray said : " In no case, we believe, is a plaintiff who finally recovers anything iu an action at law obliged to pay costs to the defendant, except when, after not accepting an offer of judgment, he fails to recover a greater sum than that so offered.^ His own right to recover costs is indeed restricted in some cases in which he puts the defend- ant to increased expense by pursuing him in a jurisdiction which the result shows that he was not justified in resorting to, as, if he brings a suit in a court of superior jurisdiction, and recovers no more than he might have sued for in an in- ferior court, or if he appeals from the judgment of an inferior court in his favor, and recovers no greater sum in the court appealed to.* Upon a writ of review the rule is different, be- cause that is a new action brought after a final judgment, and a party who does not obtain a more favorable judgment on the review than in the original action is not the prevailing party upon the writ of review." ^ If the plaintiff fails to maintain his action, the defendant is the prevailing party, and recovers his costs. If the plaintiff fails to enter and prosecute his action, the defendant may recover judgment for his costs.^ In Saunders v. Frost,^ Wilde, Justice, said : " In actions at law, the prevailing party is entitled to costs, although he does not prevail to the full extent of his claim. In siiits in equity, however, the court is authorized at its discretion to award 1 Sawyer v. Bancroft, 21 Pick. 210; 17 Pick. 323; Joannes v. Pangborn, 6 Eichardson w. Curtis, 2 Gray, 497. Allen, 243; Heims «. Ring, 11 Allen, " 102 Mass. 122. 352. * Pub. St, c. 167, § 66. « Pub. St. t. 155, § 23 ; Williams v. * Pub. St. c 198, § 4, 5. Hodge, 11 Met. 266. 6 Pub. St. c. 187, § 33, 34 ; Lakeman ' 5 Pick. 271 ; Harding u. Downs, 110 V. Morse, 9 Mass. 126 ; Abbott v. Wiley, Mass. 56. 564 COSTS. [CH. XLIX. costs to either party as equity may require, and it cannot be doubted that such a discretion is peculiarly proper to be ex- ercised by a court of equity. But in exercising this legal discretion, we must not lose sight of the general rule as to the taxation of costs, which ought not to be departed from, unless equity clearly requires it; for in courts of equity, as well as in courts of law, the prevailing party is entitled to costs." In Clark v. Reed,^ Putnam, Justice, said : " We adopt the general rule that the prevailing party is to have costs as applicable to suits in equity, as well as at law. It will be applied unless the losing party can show that equity requires a different judgment. The mere change of the forum should not in reason make any difference in the question of costs. If it should appear that both parties were in fault, as in case of Saunders v. Frost, before cited, the court would not give costs to either." In actions on bonds with penalties, if a forfeiture be ad- judged, or if the defendant confess it, and is heard in equity, the plaintiff is considered as the prevailing partj^ although on the hearing it appears that nothing is due.^ In an action of replevin, if part of the property replevied be found to belong to the plaintiff, and part to the defendant, each party will be considered as prevailing, and will recover costs .^ If judgment be arrested, the defendant is entitled to costs, as the prevailing party. If the writ be abated by plea, or on motion, for any defect or insufficiency, the defendant recovers costs.* In a libel for divorce, the wife, if she prevail, will be al- lowed costs against her husband.^ In actions of tort, where several defendants sever in their pleas, each of those who are acquitted recovers costs for his travel, attendance, and attorney's fees, by force of the statute, 1 11 Pick. 449. 5 Stevens v. Stevens, 1 Met. 279; 2 Lyman v. Warren, 12 Mass. 412. 2 Bishop on Marriage and Divorce, 364— 8 Powell V. Hinsdalo, 5 Mass. 343. 367. * Haines o. Corliss, 4 Mass. 659; Guild V. Richardson, 6 Pick. 364. § 4.J COSTS. 565 which provides that in all cases the party prevailing shall recover costs ; but for all charges jointly incurred, as fees of vifitnesses, costs of depositions, &c., single costs only can be taxed.^ When a verdict is set aside and a new trial granted, costs are allowed to the party who ultimately prevails, from the beginning.^ So where judgment is arrested after verdict, and leave to amend and a new trial are granted, costs are allowed to the defendant from the time the case went to the jury.^ When an offer of default and judgment is made by a de- fendant as provided by the Public Statutes, c. 167, § 65, and 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 statute provides that the defendant shall have judgment for his costs after said date, and the plaintiff, if he recovers damages, shall be allowed his costs only to the date of the offer.* In such a case the defendant is the prevailing party. The issue tried is : Is the plaintiff entitled to recover a sum greater than that offered ? On that issue the defendant is the prevailing party. The plaintiff is entitled to his costs to the time of the filing of the offer, and if the offer is filed in vacation he is entitled to travel and term fees of the next term.® He will not be entitled to costs of witness at the trial or any other costs incurred after the filing of the offer of judg- ment except as before stated. The defendant will be entitled to recover costs after the filing of the offer, if filed in term time, or if filed in vacation then after the next term, includ- ing his costs of travel, term fees, witnesses' fees, and other costs taxable by a prevailing party .^ The same rule is applicable in cases where money is brought into court under the common rule.^ It applies also 1 Mason v. Waite, 1 Pick. 452. * Madden ». Brown, 97 Mass. 148. 2 Fitch V. Stevens, 2 Met. 505. « lb. » Carlisle v. Weston, 1 Met. 26. ' Rule 23 of Rules of the Superior * Pub. St. c. 167, § 66. Court. 566 COSTS. [CH. XLIX. in police, municipal, and district courts, and before trial jus- tices. In either of these courts the defendant in such case would be entitled to his costs of travel and attendance, one term fee of three dollars, an attorney's fee of §2.50, taxing costs 25 cents, witness fees, and other costs allowed by law to a prevailing party .^ If a writ duly served is not entered, the defendant upon appearing pursuant to the summons served upon him and filing a complaint for costs, is the prevailing party and as such entitled to costs. A person summoned as trustee has the like right.^ In all cases in which an action is dismissed for want of ju- risdiction in the court in which it is commenced, the defend- ant is entitled to a judgment for his costs as the prevailing party .^ In the ease of Hunt v. Hanover, here cited, Dewey, J., said : " There are two adverse parties present, and when the result is that the motion of the defendant to dismiss the action prevails, the defendant is the prevailing party, and as such is entitled to judgment for costs." The same doctrine is held in New Hampshire* and Maine.^ It is held by the United States Supreme Court that, where a cause is dismissed for want of jurisdiction, no costs are al- lowed.^ The party prevailing in a writ of error is entitled to costs,^ but when such writ is quashed as having improperly issued, no cost is awarded.^ § 5. "Who are Liable for Costs. — As before stated, the gen- eral rule is that the prevailing party is entitled to his costs, and it seems to be a necessary consequence that the losing party is liable for costs. There are cases, however, where the nominal parties to the action have no personal interest in the matter in controversy, and are not, therefore, either entitled to costs or hable for them ; thus, in actions on probate bonds 1 Pub. St. c. 198, § 30. 4 West v. Wentworth, 26 N. H. 203. 2 Duffee V. Call, 123 Mass. 318. 5 Reynolds v. Plummer, 19 Me. 22. 8 Cary v. Daniels, 5 Met. 236 ; Jor- « Mclver v. Wattles, 9 Wheat. 650 ; dan V. Dennis, 7 Met. 591 ; Hunt v. Han- Winchester v. Jackson, 3 Cranch, 514. over, 8 Met. 346 ; Elder v. Dwight Mfg. ^ Pub. St. c. 187, § 7. Co., 4 Gray, 201. 8 jarvis v. Blanchard, 6 Mass. 4. § 6.] COSTS. 667 brought for the benefit of heirs, or legatees, or creditors, they are considered as the real plaintiffs, and the judgment for costs is against them.^ In actions against executors and administrators, the judg- ment for costs must be against the estate, and not against the defendants personally.^ In New Hampshire it is held that no one can have costs unless he has rendered himself liable to pay costs in case of defeat, by becoming a party to the record.'' An infant who sues by prochein ami is a party to the ac- tion, and is liable for costs if the defendant prevails.* Overseers of the poor are mere agents for the town by which they are chosen ; if, therefore, they fail in a complaint preferred for the removal of a pauper costs may be awarded to the respondents against the town, but not against the overseers.® § 6. Liability of Several Defendants for Costs. — In an action ex delicto, against two or more, if a verdict be found against a part, and in favor of part, those who are acquitted will be entitled to their costs, although thej'' did not sever in their pleas, the verdict operating as a severance.^ Where several defendants in an action of trespass plead jointly in the court below, and severally on the appeal, those who are acquitted will be entitled to joint costs to the time of severing in their pleas, and to several costs afterward, and the costs jointly incurred may be apportioned.^ In actions ex contractu, the rule, however, is different, and though several defendants sever in their pleas, and a verdict be rendered in their favor, they will be entitled to but one bill of costs.^ In an action on a probate bond for the benefit of several persons, but one bill of costs can be taxed against the defend- 1 Bobbins v. Hay ward, 16 Mass. 524 ; ' West v. Brock, 3 Pick. 303 ; Fales Dawes v. Gooch, 8 Mass. 488. v. Stone, 9 Met. 316 ; Davis v. Hastings, 2 Atkins V. Sawyer, 1 Pick. 351. 8 Cash. 313 ; George v. Keed, 104 Mass. 3 Knowles Pet'r, 28 N. H. 197. 366. * Crandall v. Slaid, 11 Met. 288; » Meagher w. Bachelder, 6 Mass. 444 ; Leavitt v. Bangor, 41 Me. 458. Ward v. Johnson, 13 Mass. 148 ; Mathers * Buckfield v. Gorham, 6 Mass. 445. i;. Cobb, 3 Allen, 467. ^ Brown v. Stearns, 13 Mass. 536. 568 COSTS. [CH. XLIX. ant.^ In a joint action against the maker and indorser of a promissory note, the defendants, if they prevail, are entitled to separate bills of costs.^ When a petitioner for partition failed to establish his whole claim, the respondents, who all held under the same right, were not allowed several costs although they severed in their pleas.^ § 7. Discretionary power as to Costs. — In many cases the courts have discretionarj' power to allow or disallow costs to parties. " In cases contested either before a probate court or before the supreme court of probate, costs in the discretion of the court may be awarded to either party to be paid by the other, or to either or both parties to be paid out of the estate which is the subject of the controversy, as justice and equity may require." * The common rule in probate courts, and in the supreme court of probate, is that no costs be allowed to either party. It is within the discretion of either court to allow or to refuse costs. In Osgood v. Breed,^ Jackson, J., said, "We do not generally award any costs unless when the appeal is on friv- olous pretences, or for reasons which the appellant knew, or ought to have known, to be unfounded." " In cases where application is made at the suit or in be- half of a private person for a writ of certiorari, mandamus, quo warranto, or other like process, the court may in its discretion allow costs to any person who appears and objects thereto, and may award judgment and execution against the person by whom, or in whose behalf, the application is made." ^ " In all matters of insolvency contested in a court of in- solvency, the Superior Court, or the Supreme Judicial Court, said courts may in their discretion award costs to either party to be paid by the other, or to either or both parties to be paid out of the estate which is the subject in controversy, as jus- tice and equity may require." 1 Thomas w. Sever, 12 Mass. 379. ^ 12 Mass. 525, 536 ; Waters v. Sdck- 2 Taylor v. Jaques, 109 Mass. 270. ney, 12 Allen, 1. 8 Peabody v. Minot, 24 Pick. 329. « Pub. St. c. 198, § 15. 4 Pub. St. c. 156, § 35. ' Pub. St. c. 157, § 140. § 8.] COSTS. 569 In all case's in which a motion for a new trial is not sus- tained, the court may in its discretion impose upon the moving party such sum to be taxed in the costs of the suit as it shall deem proper.^ So also on petitions for alimony, and upon petitions to re- vise and alter a decree, the court may award costs to either party.2 In suits in equity, and other civil suits and proceedings in which no provision is expressly made by law, the costs are wholly in the discretion of the court ; but no greater sum can legally be taxed than is allowed for similar charges in suits at common law.^ In a submission to arbitrators under the statute, if there is no provision in the submission concerning costs and expenses, the arbitrators may make such award respecting them as they judge reasonable, including a compensation for their own ser- vices ; but the court may reduce the sum charged for com- pensation if it appears unreasonable.* § 8. "When both Parties may recover Costs, — The statutes provide that " when there are two or more counts on several and distinct causes of action, and a verdict is rendered for the plaintiff on one or more of them, and for the defendant on any other or others, each party shall recover his costs paid for the travel and attendance of witnesses, and for depositions and other evidence produced, examined, or used on the trial of the counts upon which the verdict is in his favor, and shall recover nothing for the like charges incurred on the trial of the other counts." ^ This provision does not apply to actions in which there are several counts for the same cause of action, nor where the evidence applicable to one count is applicable to all the counts ; but to cases where the evidence offered by the de- fendant on the counts on which he prevailed was not neces- sary for his defence on the counts on which the plaintiff 1 Pub. St. c. 153, § 7. 4 Pub. St. c. 188, § 11. 2 Pub. St. c. 146, § 40. ^ Pub. St. c. 198, § 12. » Pub. St. c. 198, § 17. 570 COSTS. [CH. XLIX. prevailed. This seems to he the rule adopted in the cases decided.^ § 9. Coats in oases of Set-off. — If an amount is proved to be due on the set-off equal to the amount due to the plain- tiff, the court may award costs to either party, or dismiss the action without costs ; and if the amount so proved is less than the sum due to the plaintiff, he will have judgment for the balance. If it appears that there is a balance due from the plaintiff to the defendant, judgment shall be rendered for the defend- ant for the amount thereof with his costs ; but no such judg- ment will be rendered against the plaintiff when the demand for which the action is brought was assigned before the com- mencement of the suit, nor for a balance due from any other person than the plaintiff.^ If the plaintiff's claim, as established on the trial, exceeds twenty dollars, and is reduced to that amount or less by set- offs which could not have been proved in payment, such claim will be considered for the purposes of section five as having exceeded twenty dollars, and the party who finally recovers judgment in the suit shall be entitled to his full costs.^ If a general verdict for the defendant is found in an action in which there is an account in set-off, neither party is en- titled to costs.* The plaintiff in an action of contract is not entitled to costs if his claim is overbalanced by a set-off, and a verdict is returned for the defendant.^ § 10. Costs in Trustee Process, as between the plaintiff and principal defendant, are in general the same as in actions at common law. The provisions of the statutes as to costs of a trustee are in some respects different. The statutes provide that " if a person summoned as a trustee in the Supreme Judicial Court or Superior Court, appears and answers pursuant to the pro- visions of the statutes, he shall be allowed his costs for travel 1 Savles V. Briggs, 1 Met. 291 ; Elder " Pnb. St. c. 168, § 19, 20. V. Bemis, 2 Met. 599-601 ; Soule v. Rus- ^ Pub. St. c. 198, § 7. sell, 13 Met. 436 ; Tatem v. Adams, 2 « Caverly v. Bnshee, 1 Allen, 292. Cush. 180. 5 Wolcott i;. Dooley, 4 Allen, 400. § 12.] COSTS. 571 and term fees, and such further sum for counsel fees and other necessary expenses as the court may deem reasonable." ^ § 11. What items of Cost a Trustee is entitled to. — The term-fee in those courts is fixed by statute at five dollars, and the fees for travel are fixed at thirty-three cents for every ten miles' travel each way to and from court.^ The allow- ance made for counsel fees may be a small or large sum, ac- cording to the length and difficulty of the answer of the trustee, and all the circumstances of the case. The other necessary expenses can only be determined by the facts of each case. § 12. What amount of Costs a Trustee is entitled to. — This question was considered by the court in the case of Hoyt v. Sprague & Trs.^ In that case Shaw, C. J., says : " Where the trustee appears at the first term and admits funds, and no interrogatories are afterwards filed, and the trustee is not again called upon, and the litigation proceeds altogether be- tween other parties, the trustee is not entitled to costs after the first term." " Without laying down a general rule for all cases, which would be difficult, we are of opinion that where the trustee appears and answers at the first term, and is never further examined or put to trouble or expense, he is entitled to his legal taxable costs for that term only." In the case of Wasson v. Bowman, Gray, C. J., reviews the cases in which for special reasons costs are allowed after the first term, and says : " The suggestion in each of these cases that the trustee should be entitled at every term until he is charged or discharged, cannot be treated as overruling the adjudication in Hoyt v. Sprague." * If a supposed trustee appear at the first term and submit himself to an examination, and the plaintiff fail in the action against the defendant, the trustee will be entitled to his costs whether he admit or deny his liability as trustee,^ and may have judgment therefor against the plaintiff. Several trus- 1 Pub. St. c. 183, § 73. * 117 Mass. 91, 96. See also Haw- 2 Pub. St. c. 198, § 28. kins v. Graham, 128 Mass. 20. 8 12 Pick. 407, 415. 5 Brown ;;. Seymour, 1 Pick. 32. 572 COSTS. [CH. XLIX. tees summoned as partners are entitled to only one bill of costs.^ When one is charged as trustee in a court and appeals to a higher court, and is there charged also, he is not entitled to any costs on his appeal.^ So when trustees are charged on their answer in a justices' court, they are not entitled to costs in the Superior Court during the pendency of an appeal by either the plaintiff or defendant on the main issue in the action.^ So on an appeal improperly taken by the defendant from a judgment of the Superior Court charging a trustee, the trustee is not entitled to costs. In Kellogg v. Waite,* Foster, J., says : " As soon as a trustee is discharged, he may have execution for costs. As soon as he is charged, his further attendance upon the court is unnecessary, and he is entitled to no subsequent costs." Where a trustee was discharged in a police court in favor of an intervening claimant of funds, and the plaintiff ap- pealed to the higher court where the trustee was charged, it was held that the trustee was entitled to costs in both courts." When an adverse claimant was admitted as a party to a trus- tee process, and trial had between him and the plaintiff, it was held that the trustee was entitled to costs so long as the case was pending.^ A person summoned as trustee has a right to be heard on the validity of an assignment to an adverse claim- ant, and is entitled to costs while attending for that purpose the court in which the action is pending.'' Where the ques- tion of the liability is made the subject of an appeal, the trustee is entitled to costs until the appeal is determined.^ § 13. Costs in particular cases in Trustee Process. — The statutes contain the following specific provisions, applicable to cases therein named. § 14. "WTien the alleged Trustee is out of the State. — "If a person so summoned is out of the Commonwealth at the time 1 Gerry v. Gerry, 10 Allen, 160. ^ Morrison v. MoDermott, 6 Allen, 2 Ball V. Gilbert, 12 Met. 397. 122. ^ 0'Donnell!;.McIntire,99Mass.551. ' Washburn v. Clarkson, 123 Mass. * 99 Mass. 501, 502. 319. * Croxford «. Massachusetts Cotton 8 Holbrook v. Waters, 19 Pick. 354. Mills, 15 Gray, 70. § 18.] COSTS. 573 of the service of the original writ on him, and appears and answers at the first term after his return, he shall be allowed for his costs and charges in the same manner as if he had ap- peared at the term when the action was entered." § 15. When he does not dwell in the County. — "If a per- son SO summoned does not dwell or have a usual place of business in the county in which the writ is returnable, he shall in all cases be allowed his costs and charges, which shall be retained or recovered as before provided, whether he appears at the first or at any other term, and whether in the original suit or upon a scire facias against him." § 16. When he neglects to appear. — "If a person so sum- moned, who dwells or has his usual place of business in the count}' in which the writ is returnable, neglects, without any reason which the court deems sufficient, to appear and answer within the time herein provided, he shall be liable, if the plaintiff recovers judgment in the suit, and his costs are not otherwise recovered and received by him, for all costs for the plaintiff's travel and term fees, until he appears." § 17. When he does not pay to the Officer. — ^ " If a person so summoned does not pay the amount when demanded by the officer who serves the execution, the officer shall state the fact in his return ; and if it also appears by the return that the costs have not been paid, the court shall award a new execution against him for the costs." ^ § 18. Costs of Trustee on scire facias. — " If a person sum- moned as trustee, who dwells or has his usual place of busi- ness in the county in which the writ is returnable, is defaulted in the original suit, and a writ of scire facias issues against him, he shall be liable for all costs on the scire facias, to be paid out of his own goods and estate, whether he is finally adjudged a trustee or not, except as hereinafter provided. "If it appears that the person so defaulted had in his hands goods, effects, or credits liable to the attachment, and that he has paid and delivered the whole amount thereof on the exe- cution issued on the original judgment, he shall not be liable 1 Pub. St. c. 183, § 76-79. 574 COSTS. [CH. XLIX. for costs on the scire facias, nor shall he be entitled to recover costs. " If the person so defaulted was prevented from appearing in the original suit by his absence from the Commonwealth, or by any other cause which the court deems sufficient, he shall not be liable for costs on the scire facias ; but the court may, if it appears reasonable, allow him his costs, to be re- tained or recovered in like manner as if he had appeared in the original suit." ^ § 19. When Costs in Trustee Process are Discretionary. — " If during the pendency of a trustee process the trustee is sued by the defendant in such process, or by any other person, to recover the goods, effects or credits, or any part thereof in the hands and possession of said trustee, the court in which said subsequent suit is brought may make such order in ref- erence to costs therein as justice may require." ^ § 20. Costs of Trustee before Trial Justices, Police Courts, Sec. — If a person is summoned as trustee before a trial justice, or in a police, district, or municipal court, such person will be allowed his legal costs as fixed by the statutes. But if a trial has been had between the plaintiff and the alleged trustee upon any issue of fact, the court may award costs to either party as justice and equity may require. ^ § 21. When the Trustee neglects to appear. — If a person dwelling in the county where the writ is returnable is duly summoned, and neglects to appear, he is liable for aU the costs of the plaintiff's travel and term fees, until he appears.* § 22. Trustees' Costs in Police and District Courts, &c. — In police, municipal, and district courts, and before trial justices the following costs are allowed by statute to a trustee in trus- tee process : For an attorney's fee, fifty cents ; for an answer in writing, twenty-five cents ; for travel and attendance, the same fees that are allowed to the principal defendant; for an answer to interrogatories, such costs as the court may allow.^ 1 Pub. St. c. 183, § 81-83. « Pub. St. c. 183, § 78. « St. of 1883, c. 62, § 1. 6 Pub. St. c. 198, § 31. « Pub. St. c. 183, § 73. § 26.] COSTS. 575 § 23. Ho'w a Trustee can obtain his Costs. — If a person is adjudged a trustee, his costs and charges will be deducted and retained out of the goods, effects, and credits in his hands, and he will be chargeable for the balance only to be paid on the execution. If such goods, effects, and credits are not of sufficient value to discharge the costs taxed in his favor, he will have judgment and execution against the plain- tiff for the balance of such costs, after deducting the sum disclosed, in the same manner as if he had been discharged.^ The trustee can, however, retain out of the goods in his hands, for his costs and charges, only such sum as may be al- lowed by the court in which he is charged. If the taxation is erroneous, it may be appealed from.^ If a person summoned as trustee is discharged for any cause, the plaintiff will be liable to him for his costs and charges, and judgment, and execution, for the amount thereof.^ § 24. Adverse Claimants in Trustee Process, in the Supreme Judicial Court or the Superior Court, are allowed by statute the same costs as are allowed to other parties recovering costs.* In police, municipal, and district courts, and before trial justices they are allowed such costs as the court may deem reasonable under all the circumstances.^ § 25. In proceedings under the Bastardy Laws costs are the same as in civil cases at common law.® § 26. Costs in Keal Actions. — In real actions the party finally prevailing recovers full costs without regard to the amount of damages recovered in the action.^ In a writ of entry, however, the demandant may so far prevail in this action as to recover judgment for possession, while the defendant may be entitled to his costs, as when a tenant prevails on a plea of disclaimer.^ But in such case the defendaut is allowed only such costs as accrue after the 1 Pub. ^t. c. 183, § 74. 6 Pub. St. c. 198, § 31. 2 McLaughlin v. Western E. E. Co., ' Pub. St. b. 198, § 32. 12 Cush. 131. ' Pub. St. c. 198, § 10. ' Pub.. St. c. 183, § 75. 6 Cole v. Eastham, 124 Mass. 307. * Pub. St. c. 198, § 28. 576 COSTS. [CH. XLIX filing of his plea.^ The items of costs are the same in real as in personal actions. § 27. Costs in partition of Real Estate. — If any person in- terested in the premises appear and answer to a petition for partition, and if upon the trial of an issue it appears that the petitioner is entitled to have partition as prayed for, he will recover his costs of such trial against the party who objected thereto, and have execution therefor. If such issue is found or decided against him, in whole or in part, the ad- verse party will recover against him the costs of the trial, and have execution therefor ; but judgment may notwithstand- ing be rendered for the petitioner to have partition, and to have assigned to him such part of the premises, if any, as he appears to be entitled to.^ If partition is decreed upon a petition for partition against the opposition of the respondent, the costs to be taxed against the latter are limited to the costs accruing between the filing of the answer and the rendering of the verdict.^ If on a petition for partition it appears that the petitioner and respondent are tenants in common of part only of the land, and not interested in the residue, partition may be made of such part only, and the respondent will recover costs.* § 28. Costs on petition for Lien on Buildings and Land. — The statutes provide that " if the suit is commenced by the petitioning creditor before his right of action accrues, his claim may nevertheless be allowed, if the suit is carried on by any other creditor; but he shall not in such case be entitled to costs, and he may be required to pay the costs in- curred by the debtor, or a part thereof, as the court may deem reasonable." " The costs shall in all other respects be subject to the dis- cretion of the court, and shall be paid from the proceeds of the sale, or by any of the parties in the suit, as justice and equity require." ^ 1 Esty V. Currier, 98 Mass. 500. « Paine v. Ward, 4 Pict. 246 ; Loud 2 Pub. St. c. 178, § 18. V. Penniman, 19 Pick. 539. » Powell V. Jenny, 11 Allen, 104. ' Pub. St. c. 191, § 40, 41. § 31.] COSTS. 577 § 29. Costs on Writ of Certiorari, and Mandamus, and Quo ■Warranto. — The court may in its discretion award costs upon a petition for a writ of certiorari, and also on the final adjudi- cation when such writ is granted,^ and also on a petition for mandamus, quo warranto, or other like process, to any person who appears and objects thereto.^ § 30. In a case for Damages for laying out a Highway. — In the case of a verdict of a sheriff's jury, or the report of a committee on a complaint for damages caused by the lay- ing out or discontinuance of a highway, or taking land for public uses, the statutes make the following provisions as to costs : "If the jury or committee do not increase the amount allowed by the commissioners as damages or indemnity, the costs incurred by reason of the application for the jury or committee shall be paid by the persons who recognize for the payment of costs ; otherwise all such costs shall be>paid from the county treasury. " If a question arises with regard to the taxation of costs in the proceedings and hearing before a jury or committee, such question shall be determined by the court to which the ver- dict or report is returned •, and the court may also determine the compensation of the committee." ^ These provisions of the statutes apply also in case of pro- ceedings to recover damages occasioned by the laying out or discontinuing town ways and private ways.* § 31. In a Case for Damages for Flow^ing Land. — In pro- ceedings on a petition for a sheriff's jury to assess the damage occasioned by flowing the land of the petitioner by a mill- dam, the statutes provide that " the party prevailing upon such a complaint shall be entitled to his full costs, except where it is otherwise expressly provided. The court shall award a reasonable compensation to the person who presides at the trial, when it is had before a sheriff's jury, and to the officer who executes the warrant ; and the amounts so awarded shall, with the pay of the jurors and other like charges, be 1 Pub. St. u. 186, § 10. » Pub. St. c. 49, § 56, 57. 2 Pub. St. c. 198, § 15. * Pub. St. c. 49, § 78. 37 578 COSTS. [CH. XLIX. advanced by the complainant, and taxed and allowed in the bill of costs." 1 It is held that if the jury return a verdict that the com- plainant is entitled to no damage, the respondent is entitled to costs as the prevailing party, although the jury also return as part of their verdict that the dam shall be left open during a part of the year.^ Where separate warrants for a jury are issued on several complaints pending at the same time, the costs of the warrant in each case are to be taxed for the com- plainant if he prevails.^ § 32. Coats in Case for Damage for Laying out a RaUroad. — The prevailing party in such case is entitled to costs.* In cases of this character . the petitioner for a jury upon whose application the sheriff and jury are employed, and render service, is legally liable to pay their fees in the first instance. He is, therefore, if the prevailing party, to tax them as legal costs against the other party. The items of costs to be allowed are in the discretion of the court, but must not exceed the sum allowed for similar charges in suits at common law. It is held that there should not be allowed a term fee for the hearing before the commissioners upon tlie issuing of the warrant for a jury ; nor, it seems, a term fee, attorney's fee, for travel, or attendance upon the original application before the commissioners. The costs of the Su- perior Court are taxable in favor of the prevailing party .^ § 33. Costs as Terms of Amendments. — Rule 15 of the rules of the Supreme Judicial Court provides that " no amendment in matter of substance shall be allowed after the entry of an action, unless by consent, in any case where the adverse party appears, except upon payment of a term fee ; and upon striking out unnecessary counts or statements, or filing amendments after demurrer, the same terms shall be imposed ; and no amendment shall be allowed, unless by consent, after an action is placed on the trial list, except upon payment of a double term fee, but this rule shall not prevent the imposi- 1 Pub. St. c. 190, § 27. 4 Pnb. St. u. 112, § 100. " Fisher v. Johnson, 2 Allen, 436. « New Haren & Northampton Co. v. » Richardson v. Curtis, 2 Ora7,497. Northampton, 102 Mass. 116, 125. § 34] COSTS. 579 tion, in any case of such further terms as the circumstances of the case and justice to the parties may require. When either party shall amend, the other party, if by reason thereof his case shall require it, shall be entitled also to amend without terms." Rule 15 of the rules of the Superior Court is substantially the same. The amount of the term fee here referred to is five dollars. § 34. Costs as Terms of a Continuance. — The ruled of the Supreme Judicial Court provide as follows : — Rule 12. " "When an action shall be continued on the mo- tion of either party at the term when it might otherwise have been tried, the party making the motion shall pay to the ad- verse party all his costs incurred at that term in procuring the attendance of witnesses, unless the continuance is ordered on account of some unfair advantage taken by the adverse p'arty, or of some other fault or misconduct on his part ; or unless the party making the motion shall have given notice thereof, with a statement of the grounds of such motion, to the adverse party or his attorney, in such season before the sitting of the court, as might have prevented the attendance of the witnesses ; or it shall appear that the ground of the motion was not seasonably known to the party making it ; and the costs thus paid shall not be included in the bill of costs of the party receiving them, if he shall finally prevail in the suit." Rule 13. "The preceding rule shall not prevent the court from imposing any other and additional terms on the party moving for a continuance, when the justice of the case shall require it ; neither shall it be construed to prevent the party, to whom such previous notice may have been given, from procuring the attendance of his witnesses, if he shall think fit to oppose the motion for a continuance. And in such case, if the motion is granted, the costs for such wit- nesses shall be allowed in the bill of costs for the said party, if he shall finally prevail in the suit." Rules 28 and 29 of the rules of the Superior Court are the same. 580 COSTS. [CH. XLIX. § 35. Costs when Money is brought into Court. — Rule 8 of rules of the Supreme Judicial Court provides that " in all cases in which money shall be brought into court under the common rule, the plaintiff shall be entitled to receive the same, together with his costs up to that time, to be legally- taxed ; and if the plaintiff shall in reasonable time tax his costs, the amount thereof shall be paid into court, in addition to the money brought in, and shall be for the use of the plaintiff, and paid out to him on request; whereupon the amount so brought in on account of the plaintiff's demand shall be considered as stricken out of the plaintiff's demand, to the same effect as if paid. If the plaintiff shall consent to accept the amount thus paid, with costs, in satisfaction, all further proceedings in the case shall cease. If the plaintiff shall signify his election not to receive the same in satisfac- tion, but to proceed in his suit, and shall recover any sum be- yond the amount thus paid in, he shall be entitled to a judgment therefor, with costs to be taxed from the time the money is so brought in ; if the plaintiff shall not prove more to be due to him than the sum thus paid in, the defendant shall be entitled to a verdict, and judgment thereon, with costs to be taxed from the time the money is paid into court." Rule 23 of the Superior Court is the same. See also Rule 24 of rules of the Superior Court. § 36. Double Costs are allowed in Certain Cases. — The stat- utes provide that, " If, upon the hearing of a case brought before the court upon exceptions alleged, it appears that the exceptions are frivolous, immaterial, or intended for delay, the court may award against the party taking the exceptions double costs from the time when the same were alleged, and also interest from the same time, at the rate of twelve per cent a year on any sum found due for debt or damages ; ^ or which he has been ordered to pay, or for which judgment has been recovered against him ; ^ or may award any part of such additional costs and interest." In such cases the rule of taxation is prescribed by statute. It provides that, " in cases in which a party is entitled to 1 Pub. St. C. 150, § 14. 2 St. of 1883, c. 223, § 15. § 38.] COSTS. 581 recover double costs, the sums paid as fees to witnesses, and for the costs of taking depositions and procuring evidence, and for copies, and all court dues, shall be taxed and recov- ered singly, and the remainder only of the taxable costs shall be doubled." ^ In cases carried to the Supreme Judicial Court by appeal, double costs are not allowable.^ If it appears that the exceptions are frivolous, immaterial, or intended for delay, the question whether that fact appears has always been determined bj'^ the court from the bill of ex- ceptions, without evidence or argument by either party.^ § 37. By whom and how Costs are Taxed. — The statutes provide that, " bills of costs shall be taxed by the clerk of the court, or in suits before a trial justice, or before a court having no clerk, by the justice. No costs shall be taxed with- out notice to the adverse part}'', if he gives seasonable notice in writing to the clerk or justice of his desire to be present at the taxation, or causes such notice to be entered on the docket ; and notice given by or to the attorney in the suit shall be equivalent to notice by or to the party himself." * § 38. " Either party may appeal from the taxation by the clerk, to the court in which the suit is pending, or any one of the justices thereof." * It is provided by statute that " the appeal shall be heard and determined at the next term or session, unless the party who recovers costs elects to have it determined by one of the justices in vacation and gives reasonable notice thereof to the adverse party ; in which case it shall be so determined. If, however, in any case, costs are taxed before the expiration of any term, the appeal shall be heard before the final adjourn- ment thereof by the justice holding said term, after reasonable notice to the adverse party ; and the judgment shall be con- sidered as rendered when costs are finally taxed and allowed except as is provided in the following section."^ 1 Pub. St. c. 198, § 14. - Pub. St. c. 198, § 23. 2 Ames V. Stsvens, 120 Mass. 218. 6 p„b. St. c. 198, § 24. 8 Blackington v. Johnson, 126 Mass. ^ gt. of 1882, c. 235. 21. 582 COSTS. [CH. XLIX. " If the appeal, is made by the party who is to pay the costs, the other party may take out his execution and cause it to be satisfied, if he first gives bond to the adverse party with sufficient surety or sureties, to be approved by the clerk, in a sum equal to the whole amount of the costs, and condi- tioned to repay such part of the costs as may be disallowed on the appeal, and to perform such other order as the court or judge shall make thereon." ^ " The court or judge before whom such appeal is heard may allow to either party, as justice may require, the costs incurred by the appeal ; and the same may be added to or deducted from the costs awarded in the principal suit, or a separate execution may be issued therefor, as the case may require." ^ § 39. Costs for Witnesses and Taxation of them. — The cer- tificate of a witness as to his travel and attendance, when there are no suspicious circumstances attending it, is conclu- sive upon the court, as well as the clerk, in the taxation of costs ; but otherwise, where the court are led to suspect the truth or fairness of the certificate, it wiU interfere and correct the taxation of the clerk,^ or require an affidavit, at least, in support of its correctness.* And costs for witnesses should not be allowed, unless, upon all the evidence introduced before the clerk, or before the court on appeal from the clerk's taxation, it appears that they were paid, or actually attended, so as to be entitled to their fees, in the case in question, and that their attendance was reasonably, and in good faith, procured by the party making the taxation.^ The actual travel of a witness from another State can be taxed only from the line of this State, in the usual route from his place of residence to the place of holding the court.® An attorney, if summoned like other witnesses, is entitled to the same fees as they ; but if he be in attendance on pro- 1 Pub. St. c. 198, § 26. 6 Miller v. Lyon, 6 Allen, 514. 2 Pnb. St. c. 198, § 27. " Melvin v. Whiting, 13 Pick. 190; ' Cook V. Holmes, 1 Mass, 295. White v. Judd, 1 Met. 293 ; Mattoon v. 4 Parmer v. Storer, 11 Pick. 241. Mattoon, 22 Vt. 450. § 41.] COSTS. 583 fessional business, and be not detained, he is entitled to one day's attendance only.^ A party to an action, who testifies in his own behalf, at the trial, is not allowed to tax and recover fees as a witness, but may for his adversary when he calls and pays him as a witness.^ § 40. Witnesses' Certificate of Travel and Attendance. — The amount of the witnesses' fees should be entered upon the bill of costs, according to their certificate of their travel and attendance, and, if it appears to be correctly certified, the amount will be allowed, unless objected to, and the objection be sustained. The certificate should be signed by each wit^ ness for whose fees a 'claim is made, and should state the number of days each witness has attended court, and the number of miles each has travelled, including travel going to and returning from court. If a witness has attended court more than one time in a case, so that more than one travel is claimed, the facts as to the times of his attendance should appear in the certificate as a ground for the claim. Any frac- tion of a mile is allowed as a mile. § 41. The Practice as to tazing Bills of Costs is not uniform. — In some counties the attorney of the prevailing party taxes his bill of costs, and submits it to the clerk for his approval or correction. In other counties, the bills of costs are gen- erally made up by the clerk. There are objections to the latter course. The bill should be made out by the attorney, and handed to the clerk. Blank bills of costs are furnished by the clerks. No particular form of the bill is, however, required by stat- ute or by rules of court. At common law no costs were recoverable.^ Their re- covery depends upon the statutes. Where neither the laws of a State nor the acts of Congress provide for the allowance of any particular item of costs, it is to be taxed only when relating to the competent evidence in the case, and connected with what is appropriately a matter 1 Parks V. Brewer, 14 Pick. 192. » 1 Chitty's Gen. Pr. 26. 2 Stratton v. Upton, 36 N. H. 581. 584 COSTS. [CH. XLIX. of costs rather than damages and expenses in preparing a cause. The court must use a sound discretion as to such items, and allow in amount only a reasonable compensation.* The items and objections to a bill of costs must be speci- fied, to entitle the appellant from the taxation to a hearing.^ An irregularity in the taxation of costs by the clerk, not appearing on the face of the record, is an error of fact, and the party aggrieved must seek his remedy, not by error, but appeal.^ § 42. Judicial Notice taken of Situations, &c. — In taxing bills of costs, courts take judicial notice of the distances and relative situations of the residences of parties and witnesses, the length of terms, the appearance or non-appearance of de- fendants, the course of proceedings, and the state of business before themselves, and inquire into every matter connected with their own records and orders, informing themselves upon these subjects in any mode within their reach, and from any source upon which they are willing to rely.* § 43. What may be recovered as Costs. — There are certain expenses which a party to a suit necessarily incurs in the prosecution or defence of an action which as a general rule, in actions at law, may be taxed and allowed in the bill of costs of the prevailing party. These are, 1, the writ; 2, the officer's fees for service ; 3, the entry of the writ or process ; 4, the fees of witnesses ; 6, fees for depositions, including fees of deponents and magistrates, and the com- mission or application and other proceedings on which the deposition is taken ; 6, summonses for witnesses and depo- nents, and fees for service of the same ; 7, rule to auditor or auditors ; 8, rule to a referee or referees; 9, fees for copies of papers required in cases appealed ; 10, fees for copies of all documents and other papers required by the court, and of such as are used by the party as evidence at the trial ; 11, clerk's entry and term fees, and all other legal fees of the clerk, paid by the prevailing party. 1 Hathaway v. Roach, 2 Woodb. & ' McArthnr v. Starrett, 43 Me. 345. M. 63. * Fabyan v. Russell, 38 N. H. 84. ^ Dedekam v. Vose, 3 Blatchf. 163. § 44.] COSTS. 585 In addition to these and other disbursements allowed by law the statutes provide that parties recovering costs in civil actions in the Supreme Judicial Court and Superior Court shall be allowed '' For an attorney's fee, when an issue in law or fact is joined, two dollars and fifty cents ; in all other cases, one dollar and twenty-five cents. For the declaration, fifty cents. " For travel, thirty-three cents for every ten miles' travel ; but no allowance shall be made for travel to or from the clerk's office to take out or to carry thereto any writ or pro- cess, nor for more than eighty miles out and home, unless the party, or some agent or attorney for him, actually travels more than forty miles for the special purpose of attending the court in such cause ; in which case allowance may be made, in the discretion of the court, according to the distance that is actually travelled." ' § 44. Term Fees. — The plaintiff is allowed only one term fee if the defendant is defaulted without having appeared.^ If the defendant appears and afterwards prevails in the ac- tion, he will be entitled to a term fee for each term of the court while the action is pending, not, however, exceeding three terms, and subject to the provisions of chapter 264 of the Statutes of 1882, as follows : — " Parties recovering costs in civil actions in the Supreme Judicial Court or in the Superior Court shall be allowed but three term fees in any action unless allowed by order of the court ; but if the action or any question therein is carried to the full bench of the Supreme Judicial Court, two additional term fees may be allowed. " When an action is brought in any county containing two or more shire towns, the court may, at the term of entrj', designate the shire town in which the same shall be tried ; and it shall not then be put on the trial list, nor shall costs be allowed for terms held in any other town than the one so designated, unless the action is actually tried in such other town by agreement between the parties to the suit." ^ 1 Pub. St. c. 198, § 28. s lb. ; St. of 1882, c. 264. 2 lb. 586 COSTS. [CH. xLrx. § 45. Costa of printing Briefs. — In any proceeding at law or in equity, the party entitled to costs shall be allowed such sum as the court may deem reasonable, but not exceeding ten dollars, for expenses actually incurred in printing copies of briefs required for the argument of the case on the law docket of the Supreme Judicial Court.^ § 46. The fees for taking a Deposition and the deponent's fees should be duly certified on the deposition by the magis- trate by whom the deposition is taken, and will be allowed in the bill of costs. A reasonable sum will be allowed for the expense of taking a deposition in a foreign country.^ Where a deposition was not used at the trial for which it was taken, because the witness was present, but was used at a subsequent trial, the expense of taking it was allowed to be taxed. If it had not been used at all, it could not have been taxed.3 Postage on a commission may be allowed as a part of the costs thereof.* The fees of a justice of the peace for taking depositions are fixed by statute as follows : — " For a subpoena for one or more witnesses, ten cents. " For taking a deposition, fifty cents ; for writing the depo- sition and caption, at the rate of twelve cents a page ; and for the notice to the adverse party, twenty cents; the justice shall certify on the deposition his own fees, and those of the deponent. " For administering an oath required by law, except on a trial or examination before himself, whether to one or more persons at the same time, twenty-five cents." ^ § 47. Sheriff's Fees. — The fees to which sheriffs and their deputies are entitled for service of process are fixed by law.® These fees are particularly specified in the statutes, and need not be separately named here. The greater part of them are so fixed as to leave no latitude for discretion as to the 1 Pub. St. c. 198, § 29. 4 Prouty ». Draper, 2 Story, 199. 2 Thorndike v. Bordman, 6 Pick. 375. « Pub. St. c. 199, § 1. 8 Lamb v. Stone, 11 Pick. 527. 6 Pub. St. c. 199, § 6. § 50.] COSTS. 587 amount of them. To this statement there is one important exception. § 48. Fees of a Keeper of Property Attached. — The stat- utes provide that "for the custody of personal property at- tached or taken on execution, a sum not exceeding two dollars for each day of twenty-four hours for the keeper while he is in charge, and a sum not exceeding fifty cents a day for the officer for a period not longer than ten days. But the officer may be alio wed. a greater compensation for himself or for his keeper, or compensation for a longer period, by the written consent of the plaintiff and the defendant owning the prop- erty, or by the special order of the court upon hearing and for good cause shown." ^ Similar provisions are contained in chapter 272 of the Statutes of 1878. Under the last named statute a case was brought to the full court as to the proper limit of the charge of a sheriff for a " keeper," and for " custody " of property. In that case it is held that a charge by an officer for a keeper of attached property, personal property, for several weeks on the defendant's premises, and for custody of the same, cannot legally be included in the taxable costs of an action. When personal property is attached by an officer, it is his duty as soon as may be to remove the property from the pos- session of the debtor, and take it into his own immediate pos- session ; and the permanent stationing of a keeper over the property is not a proper mode of proceeding, nor one war- ranted by law.2 § 49. Forms of Bills of Costs are given at the end of this chapter. These forms are adapted to the Supreme Judicial Court and Superior Court, and the same forms may also be used in the police, municipal, and district courts, and in ac- tions before trial justices. § 50. Costs in Police and District Courts, &c. — The items of costs in police, municipal, and district courts, and before trial justices, are as follows : Except under the trustee process 1 Pub. St. c. 199, § 6. " Cutter v. Howe, 122 Mass. 541, 550. 588 COSTS. [CH. XLIX. the plaintiff or complainant shall, in addition to the amount of other disbursements allowed by law, be allowed as fol- lows : — § 51. Plaintiff's CostB. — "For writ and declaration, or petition, or complaint, one dollar. "For an attorney's fee, when there is an appearance for defendant, two dollars and fifty cents ; in all other cases, one dollar and twenty-five cents. " For term fee (except before trial justices, who shall allow one dollar), one fee of three dollars, where an appearance is entered for a defendant ; and where there is no such appear- ance, one fee of one dollar. " For attendance, thirty-three cents for each day's actual attendance by the party or his attorney ; but not more than three days' attendance shall be allowed when the defendant is defaulted without having appeared ; and no fee shall be al- lowed for attendance on any day after that on which the ac- tion is finally disposed of for the term, which day shall be entered on the docket." For travel, the same as in actions in the Superior Court. The defendant, in addition to the amount of other dis- bursements allowed by law, shall be allowed as follows : — § 52. Defendant's Costs. — " For attendance, thirty-three cents for each day's attendance by the party or his attorney ; but no fee shall be allowed for attendance on any day after that on which the action is finally disposed of for the term. " For term fee, a fee of three dollars, except before trial justices, who shall allow one dollar. " For attorney's fee, two dollars and fifty cents." ^ For travel, the same as in actions in the Superior Court. § 53. In Actions by the Trustee Process in the same inferior courts the parties recovering costs will, in addition to the amount of other disbursements allowed by law, be allowed as follows : — The plaintiff is allowed, — For writ and declaration, one dollar. For attorney's fee, one dollar and fifty cents. 1 Pub. St. c. 198, § 30. § 54.] COSTS. 589 For term fee, where there is no appearance, seventy-five cents ; and where there is an appearance, one dollar. For travel and attendance, the same fees as are allowed in other actions in the same courts. The defendant is allowed, — For travel and attendance, the same fees as are allowed in other actions iu the same courts. For an attorney's fee, one dollar and fifty cents. Trustees are allowed, — For attorney's fee, fifty cents. For answer in writing, twenty-five cents. For travel and attendance, the same fees as are allowed to the principal defendant. -^ For answer to interrogatories, such costs as the court may allow. Adverse claimants are allowed such costs as the court deem reasonable under all the circumstances.^ § 54. Fees of Auditors, Assessors, and Masters in Chancery. — The statutes provide that the Supreme Judicial Court and the Superior Court shall award reasonable compensation to auditors,^ assessors, masters in chancery, and special masters, for duties performed under the direction of the courts, to be paid by the counties in which they are appointed, and not taxed in the bill of costs of either party to the action.^ These statutes apply to a case where final judgment had not been rendered at the time the act took effect.* 1 Pub. St. c. 198, § 31. * Fessenden v. Nickerson, 125 Mass. 2 Pub. St. c. 159, § 55. 316. 3 St. of 1883, c. 216. 590 COSTS. [CH. XUX. § 55. Form of Bin of Costa of Plaintiff. — The following are forms of bills of costs for the Superior Court, used in some of the counties. The memoranda on the margin are conven- ient for reference in taxing the costs. The same forms may be used in other courts. COSTS. The preTailing party is al- lowed 3S cents for every 10 miles' travel. No more than 80 miles' travel are allowed at a term, except as provided in Pub. St. c. 198, § 28. The fees are as follows : — 10 miles $ .33 30 40 60 60 70 1.32 1.65 1.98 2.31 2.64 Travel of a party or witness is allowed only to the State line. 13 Pick. 184. 1 Metcalf, 293. Witness Fees. For travel in all cases, 6 cents a mile each way. For attendance before Su- preme Judicial Court, Su- perior Court, and Probata Court, $1.50 a day. Before County Commission- ers and juries to assess dama- ges. $1.26 a day. Before Police and District Courts, Justices of the Peace, Auditors, Referees, and Assess- ors, 50 cents a day The Plff 's Att'y will com- pute interest on damages to date of judgment, and note it below. Damaqes, viz. Int. SUPEEIOE COUKT. No. ....Plaintiff. ..Defendant. Teeu, 188 PLAINTIFF'S COSTS. Writ, dec., entry and taxing costs Service Attorney's Fee (Attorney's Fee when issue is Joined, $2.60 ; in all other cases, $1.25.) Clerk's term fees for terms, at 40 cts. a term Term fees of party for terms, at $5 a term . Fees for Travel. Distance both ways each term, in miles Amount of fees each term Number of terms Amount of fees at these terms .... Copies of Papers Depositions Commissions for depositions . . Subpoenas Service of same Witnesses' fees, as per certificate . Rule . , Costs in lower court For the Plff, Exd.hy Clerh §56.] COSTS. 591 § 56. Form of Bill of Costs of Defendant. COSTS. The preToiling party is al- lowed 33 cents for every 10 miles' travel. No more than 80 miles' travel are allowed at a term, except as provided 1.32 1.65 1.98 2.31 2.64 in Pub. St. c. 198, g 2e , The fees are as follows 10 miles 20 " 30 " 40 " 50 " 60 " . . 70 " . . 80 " . . Travel of a party or witness is allowed only to the State line. 13 Pick, 184. 1 Metcalf. 293. Witness Fees, For trarel in all cases 5 cents a mile each way. For attendance before Su- preme Judicial Court, Su- perior Court, and Probate Court, $1.50 a day. Before County Commission- ers and juries to assess dama- ges, $1.25 a day. Before Police and District Courts, Justices of the Peace, Auditors, Keferees, and Assess- ors, 60 cents a day. Sdpbeior Couet. No. ....Plaintiff, ■ Defendant. Term, 188 DEPENDANT'S COSTS. Taxing Costs Attorney's Pee (Attorney's Pee when, issue is joined, $2.50 ; in all other cases, $1-26.) Term fees of party for terms, at $5 a term. Pees for Tbavel. Distance both ways each term, in miles Amount of fees each term Number of terms Amount of fees at these terms . . . Copies of Papers Depositions Commissions for depositions . . Subpoenas Service of same Witnesses' fees, as per certificate . Costs in lower court 25 For the Deft, Exd, hy - - — ^....Clerh, 592 FORMS. CHAPTER L. FOKMS. The Public Statutes of Massachusetts ' provide that " the forms of writs in civil actions shall be the same as heretofore established by law and the usage and practice of the courts ; but alterations may be made or allowed by the courts, when necessary to adapt them to changes in the law, or for other sufficient reasons. " All changes in the forms of writs shall be subject to the final control of the Supreme Judicial Court ; and said court may by general rules regulate such changes in all the courts." Many of these forms are contained in the statutes of the Commonwealth adopted in 1784, and only a few of them can be found in the subsequent revisions of the statutes. The forms of all writs in common use in practice are fa- miliar to every practising lawyer, and printed blanks of them can readily be obtained at the offices of the clerks of the courts, or at the stores where such articles are kept for sale. We shall not therefore encumber these pages with such forms. There are, however, various writs, of which printed blanks are not generally attainable, which are not to be found in the latest editions of the statutes, and some of which are not in any of our statutes, but which have been adopted in practice as a part of the common law. From these we have selected, for insertion here, such foTms as seemed to be most desirable for a work of this character. 1 Pub. St. c. 161, § 18, 19. FORMS. 593 Form of a writ of scire facias adopted in Massachusetts by statute in 1784. [l. s.] Commonwealth of MASSACHnsETis. iS , ss. To the Sheriff of our county of S . or his Deputy, Greeting. Whereas C. D. of B. [addition] before our Justices of our Court of holden for or within our said county of S. at B. on the day of in the year of our Lord , by the consideration of our said Justices, recovered against A. B. of E. [addition], the sum of Pounds Shillings and Pence, debt or damage ; and also Pounds Shillings and Pence, for costs and charges by him about his suit in that behalf expended, whereof the said A. B. is convict, as to us appears of record ; and although judgment be thereof rendered, yet the execution for the said debt or damage and costs doth yet remain to be made, whereof the said C. D. hath made application to us to provide remedy for him in that behalf: Now to the end that justice be done, we command you that you make known unto the said A. B. that he be before our Justices of our said Court of to be holden within or for our said county of S. at B. on the of to show cause (if any he hath) wherefore the said C. D. ought not to have his execution against liim, the said A. B. for his debt or damage and costs aforesaid ; and further to do and receive that which our said Court shall then consider ; and there and then have you this writ, with your doings therein. Herein fail not. Witness E. H. Esq. at B. the day of in the year of our Lord A. D. Clerk. FORM OF AN ASSIGNMENT OF EEROES. Supreme Judicial Court. ss. Plaintiff in error v. , Defendant. On a judgment of the Court begun and holden at , within and for the county of , on the day of , wherein the said , of , is plaintiff, and the said , of , is defendant. And the said prays for a writ of error to issue, returnable to the next Supreme Judicial Court, to be holden at , within and for the county of , on the , and assigns for errors in the record of the process and judgment aforesaid, the following, to wit : — By his attorney, A. B.^ I Howe's Pr. 489. 38 594 FOKMS. FORM OF A WRIT OF ERROR. [l, s.] Commonwealth of Massachusetts. ss. To our trusty and well-beloved , Chief Justice of our Court for the Greeting. Because in the record and proceedings, and also in the rendition of judgment, between , of , plaintiff, and , of , defendant, in an action, that was in our court, held at , on , manifest error hath happened, as it is said, to the great damage of the said , as by his com- plaint we are informed. We, willing that the error, if any hath been, should be duly amended, and full and speedy justice done therein to the said parties, do command you, that if judgment be therein rendered, you distinctly and openly send us the record and process of tlie suit aforesaid, with all things touching them, under your seal, together with this writ, — so that we may have them, before our justices of our Supreme Judicial Court, to be held at , within and for the county of , on .the of , that inspecting the record and process aforesaid, we may, for correcting that error therein, further cause to be done what of right and ac- cording to law shall be to be done. Witness, Esq. at , this day of aerk. [l. 8.] JUDGE'S RETURN THEREON. ss. Pursuant to the precept of this writ, to me directed, I herewith send the record and process of the suit, and process within mentioned, with all things touching the same, all which are hereunto annexed, to the Honorable the Jus- tices of the Supreme Judicial Court within named. In testimony whereof, I hereunto put my hand and seal this day of Chief Justice, &c.i FORM OF A SCIRE FACIAS AD AUDIENDUM ERRORES. [l. s.] Commonwealth of Massachusetts. ss. To the Sheriff of our county of , or his Deputies, Whereas at the complaint of , of , a certain plea of the case prose- cuted at a court holden at , in and for our county of , on the by of against of , together with the proceedings and judgment therein are, by our writ of error, ordered to be removed into our Supreme Judicial Court next to be holden at on : — and whereas the said , by his attorney, hath assigned errors, and filed the same, which now remain in the clerk's office of the Supreme Judicial Court, said to have happened on the said complaint, and in the said proceedings and judgment 1 Howe's Pr. 489, 490. roEMS. 595 We therefore command you, vf illing that justice should be done in the premises, that you make known unto the said , tliat lie appear, (if he see cause,) be- fore our Supreme Judicial Court, to be holden at , within and for the county of , on the , to hear the errors aforesaid, and to sliow cause (if any he hath) why the said error (if any be) should not be corrected as to justice appertains. Hereof fail not, and have you there this writ, with your doings therein. Witness, Esq. at , the day of Clerks The following form of a writ of audita querela is taken from the Statutes of Massachusetts, 1781 : — WEIT OF AUDITA QUERELA. [li. s.] Commonwealth op Massachusetts. ss. To the Sheriff of our county of , or his Deputies, Greeting. We command you to attach the goods or estate of A. B., of , to the value of pounds, and, for want tliereof, to talie the body of the said A, B., if he may be found in your precinct, and him safely keep, so that you have him before our Justices of our court, next to be holden at , within and for our county of , on the Tuesday of , then and there in our said court, to answer unto the grievous complaint of C. T>. of , who complaineth and saith — [here let the declaration be inserted] by all which the said C. D., as he saith, is damaged the sum of pounds, as shall then and there be made to appear. And have you there this writ, with your doings thereon. Witness, Esq., at , this day of , in the year of our Lord Clerk. [l. s.] Commonwealth op Massachusetts. ss. To A. B., of Greeting. We command you that you appear at our court , next to be holden at , within and for our county of , on the Tuesday of , then and there to answer to the grievous complaint of C. D., of [here recite an abstract of the declaration], which complaint is to be heard and tried at the said court ; and your goods or estate are attached to the value of pounds, to satisfy the judgment which the said C. D. may recover upon the aforesaid trial. Fail not of appearance at your peril. Witness, , Esq., at , the day of , in the year of our Lord Ckrk. 1 For forms of writs of error and States Supreme Court, see Phillips's proceedings thereon in the United Practice, p. 313-316. 596 FOKMS. [l. 8.] Commonwealth of Massachusetts. ss. To the SheriflTof our county of , or his Deputies, Greeting. We command you that you summon A. B., of , if he may be found in your precinct, to appear before our Justices of our court , next to be holden at , within and for our county of , on the Tuesday of , then and there in our said court to answer to the grievous complaint of C. D., of , who complaineth and saith — [here let the declaration be inserted] by all which the said C. D., as he saith, is damaged the sum of , as shall then and there be made to appear. And have you there this writ, with your doings therein. Witness, , Esq., at , this day of , in the year of our Lord Clerk. WRIT OF DOWER AND OE SEISIN. [l. 8 ] Commonwealth oe Massachusetts. ss. To the Sheriff of our county of , or his Deputies, We command you that you summon of , in our said county of , if may be found in your precinct, to appear before our Justices of our court , next to be holden at , within and for our said county of , upon the Tuesday in next ; then and there In our said court to answer unto of in a plea of dower, for that — [here the declaration] to the damage of the said as saith, the sum of dollars, as shall then and there appear. Witness, Esq., at , the day of , in the year of our Lord aerk. WRIT OF SEISIN. [l. 8.] Commonwealth or Massachusetts. ss. To the Sheriff of our said county of , or his Deputies, Greeting. Whereas , who was the wife of E. D., late of , in the county afore- said [addition] deceased, before our Justices of our court of , holden at , for our county aforesaid, on the day of now last past, did recover seisin against A. B. of aforesaid of one third part of a certain messuage or tenement, with the appurtenances, situate in aforesaid, in the possession of the said A. B. as her dower of the endow- ment of the said E. D. her certain husband, by our writ of dower, whereof she hath nothing; therefore we command you, that to the said full seisin of one third part of the aforesaid messuage or tenement, with the appurtenances, you cause to be had without delay, to hold to in severalty by metes and bounds. We command you also, that, of the goods or chattels of the said A. B. within your precinct, you cause to be paid and satisfied unto the said at the value thereof in money, the sum of for dam- ages awarded her by our said court, for her being held and kept out of FORMS. 597 her dower aforesaid, and costs expended on this suit, with more for this writ, and thereof also to satisfy yourself your own fees; and for want of goods or chattels of the said A. B. to be by him shown unto or found within your precinct to satisfy the same, we command you to take his body, and to commit him to the keeper of our jail in , in our county aforesaid, within the said prison, whom we likewise command to receive the said A. B., and him safely to keep until he pay unto the said the full sum above mentioned and also satisfy your fees. Hereof fail not and make return of this writ, and how you have executed the same to our next court of , to be holden at , for our said county of , on the day of next. Witness, , Esq., at , the day of , in the year of our Lord CUrk. The above forms of a writ of dower and of seisin in dower were adopted by statute in Massachusetts in 1784. As to proceedings on writs of dower, see Stearns on Real Actions, 274. The following form of a writ of return was adopted in 1784: — WRIT OF RETURN. [l. s.] Commonwealth of Massachusetts. ss. To the Sheriffs of our several counties, or their Deputies, Greeting. Whereas , of , in our county of , lately replevied the , which , of , in our county of , had unlawfully taken and unjustly detained, as the said suggested, and caused the said to be sum- moned before our Court, for our said county of , to answer unto the said for such supposed unlawful taking and detaining, at a day now passed : And whereas, by the consideration of our Justices of our said Court, holden at for and within our said county of , on the Monday of , A. d. 18 , upon a hearing of the cause of taking and detaining the said before our said court, it appeared that tlie same taking and detaining was lawful and justifiable : whereupon it was then and there con- sidered by said court that the same be returned, and restored to the said irrepleviable, and that tlie said recover against the said the sum of dollars and cents damages, for his taking the same, by the said process of replevin, and the further sum of dollars cents, for his costs, arisen in the defence of said suit, as by the record of our said court, to us appears ; whereof execution remains to be done : We command you, there- fore, that you forthwith return and restore the same unto the said And also that of the money of the said debtor or of his goods or chattels, within your precinct, at the value thereof in money, you cause to be levied, paid, and satisfied unto the said creditor the aforesaid sums, being $ in the whole, together with interest thereon from the day of A. D. 18 , being the time of the rendition of the judgment aforesaid, with twenty-five cents more for this writ, together with your own fees ; And for want of such money, goods or chattels of the said debtor to be by him shown unto you, or found within your precinct, to the acceptance of the said creditor for satisfying the aforesaid sums: — We command you 598 FOEMS. to take the body of the said debtor and him commit unto our jail in in our said county of , or any jail in your precinct aforesaid. And we command the keeper thereof accordingly, to receive the said debtor into our said jail'and him safely to keep, until he pay the full sums above men- tioned, with your fees, or that he be discharged by the said creditor or otherwise by order of law. Hereof fail not, and make return of this writ, with your doings therein, unto our said Court, at , within and for our county of , within sixty days from the date hereof. Witness, , Esq., at , the day of , in the year of our Lord one thousand eight hundred and Clerk. Form of writ of withernam adopted in 1787 : — WKIT OF WITHERNAM. [l. s.] Commonwealth of Massachusetts. BS, To the Sheriff of our county of , or his Deputy, Greeting. . Whereas of , in our county of , lately replevied the beasts following, viz. [here insert such description of them as they had in the writ of replevin], and which were at the time of the replevy of the value of , Which of aforesaid, had unlawfully taken and detained, as the said suggested, and caused the said to be summoned before , one of our Justices of the Peace for our said county of , to answer unto the said for such supposed unlawful taking and detaining, at a day now passed : And whereas, upon the day of at aforesaid, upon a hearing of the cause of taking and detaining the said beasts, by our said justice, it was determined that the same taking and detaining was lawful and justifiable : where- upon it was then and there considered that the beasts be returned and restored to the said irrepleviable, and for his damages and costs ; and afterwards, on the day of , our writ of return and restitution issued in due form of law, directed to the Sheriff of our said county of , or his Deputy, to return the same accordingly ; which writ of return and restitution was deliv- ered to , to execute accordingly ; who on the day of , returned thereon, that [here insert the return made by the officer of his inability to re- turn the beasts]. And we being desirous that the said should not, by his false suggestions and pretensions, any longer detain the beasts, so by him re- plevied as aforesaid — command you forthwith to take the beasts of the said of like kind and value, if any he hath to be found in your precinct, in withernam ; and, in default thereof, any other of his goods and chattels, to the full value, in withernam, and them deliver unto the said , to be by him kept, used, and improved, until the said shall restore him the beasts he took from him, by our writ of replevin as aforesaid ; and also that of the money of the said or of his goods or chattels to be found within your precinct, at the value thereof in money, you cause to be paid, and satisfied unto the said for this writ, together with your own fees, for executing the same. Hereof fail not, and make return of this writ, with your doings herein, unto our said Justice, within sixty days next coming. Witness our said Justice, at , the day of , in the year of our Lord CUrk. FOKMS. 599 Form of writ of personal replevin taken from Public Stat- utes, c. 185, § 43 : — WRIT OF PERSONAL REPLEVIN. [l. s.] Commonwealth oe Massachusetts. ss. To the Sheriff of our county o£ , or his Deputy, or to the Special Sheriff thereof, Greeting. We command you that justly and without delay you cause to be replevied C. D., who (as it is said) is taken and detained at , within our said county, by the duress of G. H., that said C. D. may appear at our Superior Court next to be holden at , within our county aforesaid, then and there in our said court to demand right and justice against said G. H. for the duress and impris- onment aforesaid, and to prosecute liis replevin as the law directs : — Provided, said C. D. shall before his deliverance give bond to said 6, H. in such sum as you shall judge reasonable, witli at least two sureties having suffi- cient within your county, and witli condition to appear at our said court to prosecute his replevin against said G. H. and to have his body there ready to be re-delivered, if thereto ordered by the court ; and to pay all such damages and costs as shall be then and there awarded against him. Then, and not otherwise, are you to deliver him. And if said C. D. is by you delivered at any day before the sitting of our said court, you are to summon said G. H. by serving him with an attested copy of this writ, that he may appear at our said court to answer to said C. D. Witness L. F. B., Esq., at Boston the day of in the year J. A. W., Clerk. The following form of writ of habeas corpus is taken from Public Statutes, c. 185, § 6. The statute provides, that in cases of imprisonment or restraint by a person not a sherifiF, deputy-sherifE, coroner, or jailer, of this State, the writ shall be in the following form : — WRIT OF HABEAS CORPUS. [l. s.] Commonwealth of Massachusetts. To the Sheriffs of our several counties, and their respective Deputies, Greeting. We command you, that the body of of by of , im- prisoned and restrained of his liberty, as it is said, you take and hare before , a justice of our Supreme Judicial Court [or Superior Court, as the case may be], at , immediately after receipt of this writ, to do and receive what our said justice shall then and there consider concerning him in this behalf; and summon said , then and there to appear before our said jus- tice, to show the cause of the taking and detaining of said , and have you there this writ with your doings thereon. Witness, at , this day of , in the year 600 FORMS. The following is the form of habeas corpus ad testifi- candum : — WRIT OF HABEAS CORPUS AD TESTIFICANDUM. [l. s.] Commonwealth of Massacuusbtts. To the SherifE of our county of , or either of his deputies, the keeper of either of our jails or the master of either of our houses of correction in said county. Greeting. We command you that you have the body of detained in our prison under your custody, as it is said, under safe and secure conduct, before our jus- tices of our Court, now holden at , within and for said county of , on the day of at of the clock in the noon, then and there to testify the truth according to his knowledge in an action, wherein plaintiff and defendant, and, immediately after the said shall have given his testimony as aforesaid, to return him to our prison under safe and secure conduct, and have you there this writ. Witness, Esquire, at , this day of in the year of our Lord one thousand eight hundred and aerh. The following form of a writ of ne exeat regno will be found in Beames's Ne Exeat, 18, and 3 Daniell's Ch. Pr. 1943, and Hind's Pr. 611. WRIT OF NE EXEAT REGNO, ' Victoria, &c. [L. s.] To the SherifE of Greeting. Whereas it is represented to us in our Court of Chancery on the part of A. B., complainant, against C. D., defendant, (amongst other things) that he, the said defendant is greatly indebted to the said complainant, and designs quickly to go into parts beyond the seas (as by oath made in that behalf appears), which tends to the great prejudice and damage of the said complainant. Therefore, in order to prevent this injustice, we do hereby command you, that you do with- out delay cause the said CD. personally to come before you, and give sufficient bail or security in the sum of that he, the said C. D., will not go, or at- tempt to go, into parts beyond the seas, without leave of our said court ; and in case the said C. D. shall refuse to give such bail or security, then you are to commit him, the said C. D., to our next prison, there to be kept in safe custody, until he shall do it of his own accord ; and when you shall have taken such security, you are forthwith to make and return a certificate thereof to us, in our said Court of Chancery distinctly and plainly under your seal, together with this writ. Witness ourself at the day of in the year ofi 1 See form in Rice et al. v. Hale, 5 Cush. 242. FORMS. 601 Form of a petition for a writ of mandamus against a cor- poration : — PETITION FOR WRIT OF MANDAMUS. To the Honorable the Justices of the Court. The petition of A. B. of in the county of for a writ of mandamus against tlie X. Y. Z. Company, a corporation having its usual place in in said county. Respectfully represent your petitioners [here insert a statement of the facts relied on as a cause for the issuing a mandamus] : wherefore your petitioner prays that a writ of mandamus may be issued in favor of your petitioner to be directed against said corporation, commanding said corporation to restore him to the full exercise and enjoyment of all his rights, privileges, and franchises, as a member thereof, and not further to deny, interfere with, or abridge them. A. B. ALTERNATIVE WRIT OF MANDAMUS. ss. [l- s.] To Greeting. Whereas we have been given to understand in our Supreme Judicial Court, now holden at within and for our county of by that [here set forth the petition in third person]. We, therefore, being willing that due and speedy justice should be done in this behalf, as it is reasonable, do command you that immediately after the re- ceipt of this, our writ, you do without delay [here the command], or that you show us cause to the contrary thereof, lest by your default the same complaint should be repeated to us. And how you shall have executed this our writ, make known to us at the next term of our Supreme Judicial Court next to be holden at within and for our county of , aforesaid, on the of next. Witness , Esq., at , this day of , a. d. 188 . Clerk. PEREMPTORY WRIT OF MANDAMUS. [l. s.] Commonwealth of MASSACnnsBTTS. ss. To the X. Y. Z. Company, a corporation having its usual place of business in, &c. Whereas [here insert a statement of the facts alleged in the petition as the ground for issuing the mandamus]. We therefore, being willing that due and speedy justice may be done in this behalf, command you that [insert here the command in full] and that you pro- ceed therein as by law required. And how you shall execute this our writ, make known to us at our Supreme Judicial Court, next to be holden at , within and for our county of aforesaid, on the of next. Witness , Esq., at this day of , a. d. 1875. Cterk.1 1 Warren et al. a. Mayor, &c. of Charlestown, 2 Gray, 84. 602 FORMS. Form of a petition for a writ of certiorari used in Massa- chusetts : — PETITION FOR A WEIT OF CEUTIORAEI. To the Honorable Justices of the Supreme Judicial Court, &c. The petition of A. B. of against of . Your petitioner complains that [here state fully the facts complained ofj, wherefore your petitioner prays that a writ of cerlj.oran may issue, directed to the said , commanding that the said proceedings, order, and judgment, with all things touching the same, be sent before this Court duly certified by the said , and that the said pro- ceedings, &c., &c. may be quashed. A. B. By his attorney, C. D. Form of a writ of certiorari used in Massachusetts : — WRIT OF CERTIORARI. [l. s.] Commonwealth or Massachusetts. ' ss. To [here insert the name of the court to which the writ is directed]. Greeting, We being willing for certain causes to be certified of the proceedings, order, and judgment, upon the complaint of , command you that the said pro- ceedings, complaint, order, and judgment, with all things touching the same, fully and entirely as the same remain before you, by whatever names the par- ties are called therein, you send before us in our Supreme Judicial Court to be holden at , within and for our county of , on , under your hand and seal, together with this writ ; that we may thereupon cause to be done what of right and according to law ought to be done. Witness, , Esq., at , the day of , in the year of our Lord one thousand eight hiindred and ClerTc. •Writ of Prohibition. — No form of a writ of prohibition or proceedings to obtain it are prescribed by the statutes of Massachusetts. Such proceedings are not common in this State. The English forms have usually been used with some modification. Some of those forms are very long and tech- nical, and others quite brief. They are, in general, anti- quated in the forms of expression.^ The following form is taken from 5 Jacob's Law Diction- ary, 325 : — 1 See Bishop of Winchester's Case, 1 136; Fitz Herbert's Natura Brevium, Coke, 5-35 ; Croucher v. Collins, 1 Saund. 108-115 ; 5 Jacob's Law Diet. 325. FORMS. 603 WRIT OF PROHIBITION. George, &c., To A. B., &c., Greeting. We prohibit you, that you hold not plea in the Court &o., whereof C. D. complains that E. F. draws him into plea before you, &o. [And to the party E. F.] We prohibit or forbid you E. F. that you follow not the plea in the said Court of, &c. ; whereof tlie said C. D. complains that you draw him into the Court aforesaid, &c. Witness, &e. In this form, the prohibition runs against the party whose suit is complained of, and the court in which the suit is pend- ing. In some instances, and perhaps generally, the prohi- bition is only against the court or magistrate whose action is complained of. This was so in the case of the Connecticut River R. R. Co. V. County Commissioners of Franklin County .^ In that case, the writ of prohibition issued only against the County Commissioners. In the case of Henshaw v. Cotton,? the order was that the writ of prohibition issue against the respondent only, to pro- hibit him from allowing the defendant in a certain action from taking the oath that he did not intend to leave the State. The writ did not issue in either of these cases. The following form of a writ of prohibition seems more in conformity with the forms of other extraordinary writs, now used, — the mandamus and quo warranto : — WRIT OF PROHIBITION. ss. [l. s.] Commonwealth of Massachusetts. To [the writ should be addressed to the court, officer or magistrate to be enjoined]. Whereas it has been shown to us in our Supreme Judicial Court at , within and for the county of , by A. B. of , that . [Here insert, in substance, the allegations in the petition as the reasons for issuing tlie writ.] AH which is to the manifest damage, prejudice, and grievance of him the said A. B. We, therefore, being willing that due and speedy justice sliould be done in this behalf as is reasonable, do hereby prohibit you from [here insert a full statement of the acts or things prohibited], and also do command that from all proceedings therein, you do desist and refrain. Witness , Esq., at the day of in the year 18 Clerk. 1 127 Mass. 50. 2 127 Mass. 60. 604 FOKMS. If the Older of the court be, that the writ of prohibition issue against any party or persons, other than the court or magistrate prohibited, the writ of prohibition should be di- rected to all parties prohibited by it, and the writ should state specifically what each party is prohibited from doing. Any such additional prohibition to a party other than the court or magistrate prohibited, should be inserted in the writ at the end of the first prohibitory clause, thus : — And we do hereby prohibit you, the said C. D., from [here insert a statement of the acts or things prohibited]. A form of a writ of prohibition from the Supreme Court of the United States will be found in Phillips Pr. 327. As to proceedings on application for a writ of prohibition, see ante, p. 188. SUPERSEDEAS. Commonwealth op Massachusetts. ss. To the sheriffs of our several Counties, or their Deputies, Greeting. Whereas, by the consideration of our Justices of our holden at for and witliin our County of aforesaid, on the Monday of A. D. 18 , recovered judgment against for the sum of damage, and the further sum of cents costs of suit : And whereas we lately commanded you by our writ of execution which issued on said judgment, bearing date the day of last, that of the goods, chattels, or lands of the said debtor within your precinct, you cause to be paid and satisfied unto the said creditor the aforesaid sums, together with twenty-five cents more for that writ, and thereof also to satisfy yourself for your own fees, and that for want of the goods, chattels, or lands of the said debtor to be by him shown unto you, or found within your precinct, to the acceptance of the said creditor to satisfy the suras aforesaid : We further commanded you to take the body of the said debtor and him commit unto any jail in your precinct aforesaid, and therein detain until he pay the full sums aforesaid, with your fees ; or that he be discharged by the said creditor or otherwise by order of law : And because the said debtor by his petition to to be held at within and for the County of , on the Monday of , suggested to us that the judgment aforesaid, upon which our writ of execution aforesaid was awarded, was wrong and erroneous, and prayed our said Court to grant unto the said debtor a review of said judgment ; and our said Court did thereupon order that notice be given to the said creditor to appear at the term of our said to be holden at within and for our county of on the first day of next, then and there to show cause if any have why the prayer of said petition should not be granted ; and did further FORMS. 605 order that the said execution be superseded. We command you, therefore, that from taking the goods, chattels, or lands of the said debtor and from tak- ing, arresting, imprisoning, or in any wise molesting the said debtor you al- together supersede and cease ; and if you have taken any of the goods, chattels, or lands of the said debtor upon our said writ of execution, and detain them for no other cause — that then you restore the same to the said debtor with- out delay ; and if the body of the said debtor you have taken, and in jail detain for that cause and no other, that then him out of the jail wherein he detained, without delay you cause to be delivered at your peril. Witness , Esq., at , the day of , in the year of our Lord one thousand eight hundred and Clerk. SPECIAL WRIT OF ATTACHMENT. [l. 8.] Commonwealth of Massachusetts. as. To the sheriffs of our several Counties, or their Deputies, Greeting. Whereas in a cause now pending in our Court, within and for our said County of , at the term thereof a. d. 188 , in which summoned to answer unto in the being a. d. 188 , and the case numbered on the docket of said court for said term, upon the motion of the said , filed in our said court A. d. 188 , praying that a special precept, under the provisions of chapter 167 of the laws of 1876, may be issued for the attachment of the good or estate of the said to secure the judg- ment or decree which the said may obtain in said cause, it has been ordered by our said court, upon good cause shown, that a special precept of attachment be issued as therein prayed for, to secure the judgment or decree which the said may obtain in said cause. We command you therefore to attach the goods or estate of to the value of dollars, to secure the judgment or decree which the said may obtain in said cause. Hereof fail not. And make return of this precept, with your doings therein, into the clerk's office of our said court forthwith. Witness, , Esq. at the day of in the year of our Lord one thousand eight hundred and Clerk?- SPECIAL WRIT OF ARREST. [l. s.] Commonwealth op Massachusetts. ss. To the sheriffs of our several Counties, or their Deputies, Greeting. Whereas in a cause now pending in our Supreme Judicial Court within and for our said County of Suffolk, at the term thereof, a. d. 188 , in which summoned to answer unto in to the damage of the said 1 Pub. St. c. 161, § 85. A writ may also be issued to attach by trustee process. 606 FOTIMS. (as he says) the sum of dollars, which shall then and there be made to appear, with other due damages, the being a. d. 188 , and the case numbered on the docket of said court for said term, upon the mo- tion of the said , filed in our said court A. D. 187 , praying that a special precept, under the provisions of chapter 167 of the laws of 1876, may be issued for the arrest of the said to secure the judgment or decree which the said may obtain in said cause, it has been ordered by our said court, upon good cause shown, that a special precept of arrest be issued as therein prayed for, to secure the judgment or decree which the said may obtain in said cause ; the said having made affidavit, as appears on the files of said court, and having proved to the satisfaction of the court the same facts that are now required to be proved to authorize arrest on mesne process. We command you therefore to take the body of the said (if he may be found in your precinct), and safely keep, so that you have before our Justices of our said court, to be holden at within and for our said County of , on the day of , then and there in our said court to answer unto said in said Hereof fail not. And make return of this precept, with your doings therein. Into the clerk's office of our said court on or before said day. Witness, Esq., at , the day of in the year of our Lord one thousand eight hundred and The following is a proper form for the address and com- mencement of a petition to a court: — To the Honorable Court next to be holden at in and for the county of, &c., &c. John Doe of, &c., complains against Richard Eoe of, &c., and shows that [Here state the facts which are the ground of complaint]. Your petitioner, therefore, prays that [Here state the prayer for relief]. Another approved form is as follows : — To the Honorable Court, &c., &o. John Doe of, &c.. Petitioner, u. Richard Roe of, &c.. Respondent. Your petitioner respectfully shows that, &c., &c. A libel for a divorce is a petition, and is in the form of a petition. No form is prescribed for it by the statutes. The following form of a libel is taken from 2 Bishop on Marriage and Divorce, § 770. To the Honorable Justices of the Court, holden, &e. The libel of Richard Rhodes of , in the county of , against Sarah A. Rhodes, wife of said Richard, respectfully represents, that the said Richard and the said Sarah were lawfully married to one another on the fourth day of 1 Pub. St. c. 161, § 85. FORMS. 607 June; in the year eighteen hundred and forty-one, at in said State, that your libellant and the said Sarah lived together as husband and wife, in various places in this State, after their said marriage, until on the fourteenth day of De- cember, now last past, your libellant left the said Sarah on discovering the adul- teries hereinafter to be mentioned. And your libellant says that on the fifth day of June in the year eighteen hundred and fifty, the said Sarah, at , in the county of , committed adultery with one William Rochester ; and on the tenth day of May, in the year eighteen hundred and fifty-one, she committed adultery with some person whose name is unknown to your libellant at in the county of , and that she has committed various adulteries, which your libellant cannot here particularly specify. Wherefore he prays that the bond of marriage between him and the said Sa- rah may be dissolved and for such further and other relief as to this Honorable Court may seem just. • KiCHARD Rhodes. A variety of other forms of libels -will be found in the work of Mr. Bishop above referred to. In every suit commenced by petition and in a bill in equity, it is desirable that the names of the petitioners and respond- ents should be given in the commencement of the petition, immediately after the address to the court, to avoid the neces- sity of reading the whole bill or petition to discover who the respondents are. The following forms of information in the nature of a Quo Warranto, the plea thereto, and replication to the plea, are taken from the forms prepared to be used under the Practice act of Connecticut, as stated on page 199. INFORMATION m THE NATURE OF A QUO WARRANTO. To the Honorable the Superior Court now in session at New Haven in and for New Haven County, at its term commencing on the third Tuesday of December, A.D. 1875. Comes Eleazer K. Foster, Esquire, State's Attorney within and for the county of New Haven, who in this behalf prosecutes in his own proper person and at the relation of Alvin L. Willoughby of New Haven, and gives the court to un- derstand and be informed that [Here insert a statement of the facts which are the grounds of the process prayed for]. Wherefore the said attorney prays the consideration of this court in the premises, and that due process of law may be awarded against the said , in this behalf to answer to this court by what warrant he claims to have, use, and enjoy the office, liberties, privileges, and franchises aforesaid. Dated at New Haven, January , 18 . E. K. Foster, State's Attorney. The information must be verified by affidavit. 608 FORMS. RULE TO SHOW CAUSE. ScpEKiOB Court. ««. New Haven Comrar, January , 187 . State ex rel. Alvin L. Willoughby v, Benjamin W, Gates. Upon the foregoing information being filed in court, it is ordered that a rule be entered that the said Benjamin W. Gates show cause, if any he have, why he usurps, and by what authority he claims to have, use, and enjoy the oflBce, rights, privileges, and franchises of the Common Council of the city of New Haven, at 10 o'clock, a. m., on the 11th day of January, 1876, and that notice be given to him of the filing of the said information and of this rule by some proper officer by leaving a true and attested copy certified by the clerk of this court, of said information and of this order with said Benjamin W. Gates, or at his usual place of abode in the town of New Haven, on or before the 5th d&y of January, 1876. By order of Court, January, 1876. Clerk. PLEA TO INFOEMATION IN THE NATURE OF A QUO WARRANTO. Stjperiok Cottkt. New Haven County, December Term, 1875. State ex rel. Alvin L. Willoughby v. Benjamin W. Gates. Plea. And now the said Benjamin W. Gates comes into court, by his attorney, and protesting that said information is not sufficient in the law, so that he is not bound to answer thereunto; yet for plea and answer thereto saith, that the State of Connecticut ought not to implead him by reason of the premises in said infor- mation contained, because he says that [Here insert the facts relied upon in the plea]. All which things the defendant is ready to verify as this court shall award ; and thereupon he prays that said office, privileges, and franchises may be adjudged to him, and that he may be dismissed by the court of and from the premises charged upon him as aforesaid. Benjamin W. Gates. By John Doe, his attorney. REPLICATION TO PLEA IN QUO WARRANTO. SupKBiOR Court. New Haven County, December Term, 1875. State ex rel. Alvin L. Willoughby v. Benjamin W. Gates. Replication. And now the said Eleazer K. Foster, Esquire, State's Attorney, and who prosecutes in this behalf at the relation of Alvin L. Willoughby, saith, that, FOEMS. 609 for anything above alleged by the said Benjamin W. Gates, the State of Con- necticut ought not to be barred from having said information against the said Benjamin W. Gates because he saith, that [Here insert tlie matters relied on in replication]. And so the said attorney says that said Benjamin W. Gates was not elected to the oflSce of councilman of said city of New Haven for said ward for the term aforesaid, as in said plea is supposed ; and this the said attorney is ready to verify ; wherefore he, for the State of Connecticut, at the relation of Alvin L. Willoughby aforesaid, prays judgment, and that the said Benjamin W. Gates of the premises above charged upon him by the said information may be convicted. Eleazeb K. Fostee, State's Attorney. II^DEX. A. ABATEMENT, page natureof plea of 270 order of pleas in 370 pleas in, are dilatory 271 must be in writing 272 process not abated for circumstantial errors 271 for non-joinder of defendant 271 new writ may issue 271 reply to plea of 271 proceedings after reply 271, 272 may be pleaded in answer 272 filing answers in 272 answers in, in police courts, &c 272 time of filing answer in 272 plea in, after answer to merits 272 judgment in 271 ACTIONS, definition of 3 division of, at common-law 7 under the statutes 7 real actions 7, 76 personal actions, divisions of 8 contract, tort, and replevin 8 mixed actions 8 bill in equity 9, 18 (See Equitt.) entry of 332, 338 venue of 490, 492 wben a corporation is a party 491 when a town or county is a party 491 in trustee process 492 by or against executors, &c 253 in action for forfeiture 492 when error in an action may be removed 493 612 INDEX. ACTIONS — continued. page commencement of, ■what is 20, 251 ■who sliould be plaintiffs in 252 joinder of ., 253 who should be defendants 254 joinder of 254 appearance in 335 eifect of appearance 335 pleadings in. (<&e Chapters on Pleadings.) ADMINISTRATORS. {See Executors aud Administeatobs.) ADVANCING CASES EOR SPEEDY TRIAL 346 AFPIDAVIT, to arrest on execution 137 AGREEMENTS, made by attorneys, binding on clients 176 ALIAS OR PLURIES EXECUTIONS 185 ALIMONY. {See Divorce.) ALLEGATION OF FACTS, in trustee process 31 proceedings as to and trial of 32 AMENDMENTS, at common law 285, 286 all mistakes amendable 285 allowed by statutes 286 of declaration, rule as to 286-288 of writs 32,289 of return of writs 108, 291 of verdicts 291 of records 292 of form and of substance 288 allowance of, at discretion of court 292-296 affecting third parties not allowed 292 effect of 292-294 seven rules as to allowance of 296, 297 cause of action not to be changed 296 of writ of review 289 when original writ is lost 290 terms of 294, 578 action at law may be changed to suit in equity .... 289,290,555 of bill of particulars 291 motion to amend 295 notice thereon 295 wiU discharge bail, when 293 will discharge attachment, when 293 in equity proceedings 557 INDEX. 613 ANSWERS, PAGE of defendants 260 shall deny or admit, what 260 general denial 260 to common counts 260 must be specific and clear 261 setting up statute of frauds 263 time of filing 262 second, not to be filed without leave 262 in trustee process. (JSee Tbttstee Pkocess.) in scire facias 45, 168 in replevin 53 in error 70 pleas ^»z» darrein continuance 262 to interrogatories of adverse party 470-472 APPEAL, definition of 391 from trial justice's, police and district courts, &c., to Superior Court 391 from what judgment an appeal lies 391 provisions of statutes as to 391 must be from final judgment 391 when to be claimed 392 ' appellant to recognize 393 recognizance not required, when 392 bond to prosecute given, when 392 entry of 333, 393 what papers must be filed 393 from proceedings against poor debtor 394 from commissioners of insolvent estate 229, 394 from courts of insolvency to Superior Court 235-237, 394 from Probate Court to Supreme Judicial Court 225-228 from Superior Court to Supreme Judicial Court 391-404 {See Questions op Law.) effect of 394, 395 omission to enter 332, 395 trial of 396 does not lie, when 396 if not entered, judgment may be affirmed 395 from decision on an award 452 in equity proceedings 397, 558 in personal replevin 57 costs in appealed cases 561 from taxation of costs 681 {See CoTlRTS.) 614 INDEX. APPEAEAIICE. PAGE of plaintiff, how made 334 of defendant, how made 335 general, effect of 335 special, effect of 335 time of making, when extended 335 by attorney, sufficient 175 APPRAISAL OF REAL ESTATE. (^See Levy of Exectjtion.) ARBITRATION, at common law 448 modes of 448 what matters may be and may not be referred 449 under the statutes 449 form of agreement of 449 of certificate 450 submission must be signed, &c 450 by rule of court 452 arbitrators in, bearing before 453 not bound by rules of court. 453 may examine witness not sworn 453 may award costs at discretion 457 decision of, is conclusive, when 454 compensation of 457 award in, most conform to submission 454 return of 461 time of 451-455 returned to court sealed and directed 455 may be recommitted, accepted, or rejected 455 may be set aside 456 appeal from order on 452 exceptions to order on 452 costs in 456, 589 ARGUMENTS, limited in time 408 ARREST. who liable to 129 who are exempt from 129, 131 writ of protection 131 on mesne process 131 in actions of contract 131 affidavit to arrest 131 in action of tort, oath required 132 writ must contain declaration 133 bail, reasonable time allowed to give 132 INDEX. 615 ARREST — continued. page who may take bail 133 recognizance for future appearance 134 amount of 135 when may be made after sunset 139 examination of debtor 134 notice of 134 form of 135 service of 136 magistrate must be present 136 liability of surety 134 discharge of surety 135 rights and remedies of sureties 155 on execution, when and how made 136, 149 what affidavit is required 137 when may arrest after sunset 139 magistrate must be present 136 failure of, to attend 142 forms of affidavit and certificates 140, 141 poor debtor, application of, to take oath of 142 notice to, how served 142 appearance of 143 examination of ... 143 may be adjonmed 144 oath of 144 certificate of magistrate 145 discharge of 145 charges of fraud against 145 sentence on 146 must assign property, when 146 may redeem real estate 147 appeal by 147 may be committed to jail 147 when debtor is a woman 148 proceedings on execution against her 148 examination of 148 subsequent proceedings 149 may be made on criminal process, when 149 on Sunday, is void 149 when officer may break doors, &c 150 duty of officer in making 151, 152 must show writ, in what cases 152 how made 153 consequences of arresting the wrong person 154 dischai^ of debtor claiming support as a pauper 155 616 INDEX. ASSESSMENT OF DAMAGES. (See DiMA.ass.) page ASSESSORS. {See Atoitoes.) powers and duties like those of auditors 446, 447 appointed by consent of parties 446 findings of, have the weight of a verdict 446 have no power to assess costs 447 report of 447 compensation of 447, 589 ASSIGNEE OF INSOLVENT DEBTOR, election of , 234 ASSIGNMENT OF ERRORS AND ISSUING WRIT ... 63, 64 ASSIGNMENT OF WAGES 27 of funds prior to attachment 33 ATTACHMENT, origin of Ill writ of 11,111 service of . Ill what property may be attached Ill money liable to 113 interest of partner in partnership property 112 when debtor's goods are mixed with other goods 113 articles exempt from 113-119 wages exempt, when 119 homestead exempt 119 property exempt for special reasons 120 fixtures exempt, when 120 of personal property, what constitutes 120, 121 when mortgaged 119 what is sufficient possession by officer 121 several attachments of same property 122-124 duty of second officer 124 officer may appoint a keeper • 122 immovable, how kept 124 sale of attached property by consent 125 of live animals, &c 125 in trustee process 25 (See Trustee Pbocess.) of real estate, how made 125 several attachments 126 must be recorded 126 takes effect, when 126 creates a Hen 127 duration of lien 127,525 INDEX. 617 ATTACHMENT — co« process by landlord against tenant 90 >> 42 658 INDEX. SUMMARY PROCESS TOR RECOVERY OP LA'N'DS—conHmed.pAG^ relation of landlord and tenant, what constitutes 90 to recover premises used for illegal purposes 91 demand of rent is necessary to terminate lease 91 entry for breach of conditiou 93 forfeiture may be saved, how 93 action after foreclosure of mortgage 93 proceedings in 93 jurisdiction of, in what court 94 service of writ 94 judgment in 94 recognizance for costs, &c 94 bond is required, when 95 scire facias on the judgment 95 SUMMONS. (See Obiginal Summons.) SUMMONS AND ATTACHMENT, (fe Weits.) nature and form of writs of 12 when the proper remedy 13 service of 103 SUNDAY, arrest of debtor on, is void 149 if escaped may be retaken on 150 bail may take principal on . 150 SUPERSEDEAS 41 (See Review.) SUPREME COURT OP THE UNITED STATES. (&e Couets.) SUPREME JUDICIAL COURT. (See Courts.) SURVIVAL OP ACTIONS, real and mixed actions survive 86, 87 personal actions, when 330, 331 TALESMEN. (See Jubt.) TENANTS IN COMMON, may be compelled to divide 410 process for partition. (See Pautition.) TENDER, definition of 541 object of 541 legality of 541 plea and effect of 541 custody of sum tendered 542 what plea of, admits 543 INDEX. 659 TENDER — continued. page plea of, in inferior courts 543 sum tendered must be sufficient 54" must include interest 543 costs 544 where to be made 544 ■what is legal 545 ■what money is legal 546 to whom made 547 must be kept good 548 by whom kept 548 plea of, after an appeal 549 of chattels 550 in case of involuntary trespass 550 of damages for taking land 551 occasioned by a mill dam 505, 551 TERM EEES, what allowed 583 TESTE OE "WRITS. {See Whits.) of executions 183 TITLES, petition for settlement of 494, 493 TORT, actions of 8 TRIAL, opening and closing 357 manner of opening 357 oath to witnesses 357 examination of witnesses 358 (See Witnesses.) depositions and documents, how put iu 364 defence and close 364 charge of the judge 365,356 exceptions to ruhngs 367 deliberation, of the jury . . 367 {See JuBY.) verdicts 370 {See New Trial ; Veedicts.) TRIAL JUSTICES. (&e Coums.) TRIAL LISTS 345,346 TROVER, an action of tort 8 declaration in 257 660 INDEX. TRUSTEE PROCESS, page object and nature of 14-23 trustee in, who may be 23 proceedings in general 23 may be used in wbat actions 24 ■what parties may be summoned as trustees 24 non-residents may be summoned in, when 24 what property may be attached 25 may not be attached 25, 26 what wages are exempt 26 in case of assignment to secure a debt .... 27 of future earnings 27 not valid unless recorded 27 record not constructive notice, when 28 is not the proper remedy, when 28, 29 venue of 30 answer of trustee 30 must he sworn to 30 examination of trustee 30 errors in, may be corrected 31 when corporation is trustee 31 considered as true, when 31 additional may be filed 32 effect of false 32 liability of trustee may be referred to the court 31 allegation of facts 31 trial of 31 depositions may be used in trial 32 default of trustee 32 claimant of funds in his hands 32 proceedings and trial of claim of 33 should be summoned by plaintiff as well as by trustee ... 33 assignment of funds prior to attachment 33 trustee may be charged, when 33 proceedings when trustee holds a mortgage 34 before the municipal court of Boston 34 in inferior courts 34 judgment in 34 procedure after judgment 35 costs in 670-575 (See Costs.) scire facias against trustees 46 (See SciEE Facias ) execution in 183 INDEX. 661 V. FAQE VENIRES 363 VENUE OF ACTIONS, defiuition of 490 actions are local and transitory 490 of local actions 490, 491 of transitory actions 490, 491 ■when a corporation is a party 491 in trustee process 30, 492 in actions for forfeiture 492 removalof actions to proper county 492 in bastardy process 438 in equity proceedings 557 in repleyin 53 of ■srrit of error 64 VERDICT, delivery of 369 , general and special 370 polling the jury 371 may be set aside 371 form of 371 affirmation of 371 amendment of 291 of sheriff's jury. (See SnEKirr's Jxtbt.) {See Ne-w TaiAL; Teiax.) VESSELS, liens on, how enforced 425 VIEW BY JURY 368 W. WAGES, what exempt from trustee process WATER-RIGHT. (See Elowage.) WILL, probate of WITHERNAM, writ of. (See Replevin.) 662 INDEX. WITNESSES. {See Depositions; Evidence.) page oath of 357 examination of 358, 453 rules for 358 leading questiotis, when allowed 359 separate ... 359 cross 360 browbeating 361 attempts to disparage . . . . ' 362 impeachment 363, 464 competency of children as 364 WEITS, various kinds of 10 original summons 10 capias 11 capias and attachment .... 11 summons and attachment 12 one form of blank used for these four forms 12 in what cases each form is used 13 against executors, &c IS signature and tests of 19 must be returnable, when 19 where 21 date of 19 direction of, to officers 20 amendments of 20-22, 289 indorsement of. {See Indorsement.) judicial. {See Judicial Writs.) service of. {See Service or Writs.) return of. {See Return of Writs.) {See Audita Querela ; Bill in Bquitt ; Complaints for Plowing Lands Dower ; Ejectment ; Error ; Habeas Corpus ; Libel for Divorce Personal Replevin; Petition; Replevin; Review; Scire Eacias Summary Process; Trustee Process.) University Preflp, Cambridge; John Wilson and Son.