(Jornpll ICam ^rlyool Sibtarg Cornell University Library KFM2930.B98 1894 3 1924 024 685 954 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/details/cu31924024685954 MASSACHUSETTS PEACTICE. PRACTICE AND PLEADING IN PERSONAL ACTIONS IN THE COURTS OF MASSACHUSETTS. BY HENEY F. BUSWELL AND CHARLES H. WALCOTT, OF THE SCPFOLK BAB. THIRD EDITION. EETISED AND ENLARGED. BOSTON: LITTLE, BROWN, AND COMPANY. 1894. Af^tsJ/ Copyright, 1894, By Hesry F. Buswell and Chakles H. Walcott. University Press: John Wilson and Son, Cambridge, U.S.A. PREFACE TO THE THIRD EDITION. In the preparation of the present edition, the second edition has been thoroughly revised, and all obsolete matter stiicken out. A large amount of new matter has been added, under the different topics treated of; among which may, especially, be mentioned the sub- jects of the Courts and their Jurisdiction, Certiorari, Review, Writ of Error, Trustee Process, Judgment and Execution, Appeals, and Exceptions. The new matter added to the book amoimts, altogether, to about one hundred pages. About five hundred citations of cases have been added, including all the cases decided, upon points of pleading or practice, by the Supreme Judicial Court, since the publication of the second edition. All new legislation in any way affecting the subjects treated of, from that of the legislative session of 1883 to and including the important legislation of the ses- sion of 1893, has been noted. Gratefully acknowledging the favor with which the former editions of their work have been received, the authors submit the present edition to the indul- gent consideration of the legal profession of the Commonwealth. H. F. B. C. H. W. February, 1894. PREFACE TO THE FIEST EDITION. This volume is the result of an attempt to jfiamish to the members of the Massachusetts bar a manual containing the ordinary rules, forms, and methods of practice in civil proceedings, together with notes and decisions upon the important and constantly recurring questions of pleading that arise in the conduct of causes in the courts of law. The design of the first part of the work is to present a general idea of the courts and their jurisdiction, and the civil processes issuing therefrom, and to trace the stages of an ordinary civil action from its inception to final judgment. The second part is made up of notes and decisions on what is commonly called " the Practice Act," — General Statutes, chapter one hundred twenty-nine, — and, it is believed, contains references to every Massachusetts case of any importance bearing upon the act. The forms contained in the work have been care- fully selected, and those having any immediate connec- tion with the subjects treated of in the body of the book are inserted in their places in the text. vm PKEFACE TO THE FIRST EDITION. Although, in the execution of the design, some top- ics may have been omitted and others not discussed so fully as to some might seem desirable, it is to be borne in mind that the admission of everything connected, incidentally as well as directly, with what is somewhat vaguely called " practice," would have increased the size of the book to an extent inconsistent with its original object. While the authors are under obligations to many friends for assistance rendered during the progress of the work, their thanks are especially due to Joseph A. Willard, Esquire, Clerk of the Superior Court for Suf- folk County, to whose constant assistance, most kindly and cheerfully rendered, several chapters of the book owe no small part of whatever value they possess. H. F, B. C. fl. W. November, 1875. TABLE OF CONTENTS. PART I. OF PEOCEDURE IN CIVIL ACTIONS. CHAPTER I. COURTS AND THE VENUE OP ACTIONS. PAGE The Courts and their Jurisdiction , . . . . 1 Trial Justices 2 District and Police Courts 6 Municipal Courts 15 Municipal Court of the City of Boston 16 The Superior Court 17 Sittings of 20 The Supreme Judicial Court 22 Sittings of 25 Venue 26 Local Actions 26 Transitory Actions 30 Venue fixed or changed by Statute 30 CHAPTER II. COMMON WRITS TRUSTEE PROCESS REPLEVIN SUMMARY PROCESS FOR RECOVEBT OF LAND. In general 36 Capias and Attachment 38 Summons and Attachment 40 Simple Summons 41 Trustee Writs 44 What may be attached by 47 X TABLE OF CONTENTS. PAGE Trustee Writs : Trustee's Answer 50 Wages and Assignments 53 Rie^vin : 61 Form of Writ 65 Summary Process for Recovery of Land 69 Form of Writ 72 CHAPTER III. FORMS AND ISSUING OP SPECIAL WRITS. Scire Facias 75 Forms of 79 Habeas Corpus 81 Petition for 83 Form of 84 Ad Testificandum 87 Audita Querela 87 Form of . , 89 Certiorari 90 Form of 96 Mandamus 97 Proceedings 99 Petition 100 Form of 101 Error 102 Proceedings 106 Prayer for Writ and Assignment of •Errors 107 Form of Writ . 109 Bond on 110 Judge's return on Writ Ill Scire Facias ad Audiendum Errores Ill Plea in nulla est erratum 114 From the Supreme Court of the United States to the Supreme Judicial Court 114 Review 114 Petition to vacate Judgment 116 Writ of Review , , 119 Form of Petition to vacate Judgment ]2f) Bond on 127 Form of Supersedeas 129 of Writ of Review 130 Writ of Protection 131 Form of 132 Writ of Prohibition 133 TABLE OF CONTENTS, XI CHAPTER IV. SERVICE, RETURN, AND ENTRT OF WRITS: PAGE Service 137 Absent Defendants and insufficient Service 142 Defective or insufficient Service 148 Special Precepts 148 By vfhom Process may be served 149 Arrest on Mesne Process 151 Affidavit and Certificate 151, 152 Exemption from Arrest .... 154 Bail 155 Attachment : what may be attached 157 Of Real Property 158 Of Personal Property 159 Of Chattels mortgaged or pledged 163 Of Property of Married Women .... 167 Of Partnership Property ... 168 Exemptions from Attachment : By Common Law . . . 169 By Statute 170 Dissolution of Attachments : By Operation of Law . . . 177 By Bond to dissolve .... 180 Sale of Attached Property 187 Form of Application for Sale 188 Excessive and Fraudulent Attachments 190 Officer's Return 191 Indorsement for Costs 193 Entry of Actions ... 195 Late Entry 196 Non-Entry 197 CHAPTER V. JOINDER OF ISSUE — REMOVAL OF ACTIONS. Appearance 198 Special 200 Answers • 201 In Abatement and Demurrer 201 To the Merits 202 Declarations in Set-Off 204 Removal of Actions ; To the Superior Court 207 From one County to Another 210 From the Superior to the Supreme Judicial Court .... 212 Xll TABLE OF CONTENTS. CHAPTER VI. INTERLOCUTORY PK0CEEDING8 AND TRIAL. PAGE Claim for Jury Trial 215 Demurrers and Answers, or Fleas, in Abatement 215 Motions in general 216 For Continuance 218 To dismiss 221 For Default or Non-suit 221 To remove Default or Non-suit 223 For Judgment 224 For New Trial 225 For Leave to amend 228 Auditor 229 Reference 235 Change of Attorney 238 Suggestion of Insolvency and its Effect 238 Suggestion of Death, &c 241 Tender: Money paid into Court 242 Offer of Judgment 246 Interrogatories 247 Depositions . 249 Advancing Causes 257 Trial List 259 Short List 264 Call of Docket 264 Subpoenas 265 Challenges . . . , 267 Notices to produce at Trial . . 269 View 271 Stenographer 272 Conduct of Trial 273 Verdicts 280 Witnesses' Certificates 281 Filing Papers to make up Judsjment . '. 282 CHAPTER Vn. COSTS. Costs; when recovei-able 284 When not recoverable 290 To both Parties 292 To several Defendants 293 TABLE OF CONTEKTS. xiii PAGE Costs : After Plea of Insolvency 294 Double 295 In Trustee Process .'.... 296 Items of, allowed ... 300 Writs 300 Service 300 Entry 301 Term Fee 302 Attendance . 303 Travel 303 Attorney's Fee . ' 304 Witnesses 304 Subpoena and Service 306 Issue 306 Taxing 306 Disbursements 307 Bills of Costs in Superior and Supreme Judicial Courts .... 309 In the Inferior Courts 310 CHAPTER VIII. .JUDGMENT AND EXECUTION. Judgment, generally 312 Nunc pro Tunc 312 On Default 314 In Actions on Bonds, &c 815 In Actions against two or more Defendants 317 Interest . . '. 318 In Case of Insolvency 319 In Cases of Set-ofE 322 Execution 322 Alias Executions 328 Executor: Absent Defendants 330 Service of : Arrest 332 Examination of Debtor 334 Service of, by Levy 342 Set-ofE of Judgments and Executions 347 CHAPTER IX. APPEALS, EXCEPTIONS, AND REPORTS. Appeals: From the District and Police Courts 350 From Trial Justices 357 From the Municipal Court of the City of Boston .... 359 XIV TABLE OF CONTENTS. Appeals : page In Summary Process for the Recovery of Land 360 Entry of, in the Superior Court 362 Effect of .* 364 From the Superior Court 365 Exceptions 367 As to the Form of the Bill 373 Petition to establish the Truth of 377 Reports 382 Entry of Questions of Law 384 Proceedings on Non-entry 390 Hearing and Determination of Questions of Law 393 Opinions 398 Massachusetts Reports 398 PART II. NOTES AND DECISIONS ON CHAPTER ONE HUNDRED SIXTY-SEVEN OF THE PUBLIC STATUTES, AND THE ACTS AMENDATORY THEREOF. Pleadings: Forms at Law 403 Forms of Declarations: Surplusage 404 Substantive Facts only to 'be set forth 407 Declarations on Contracts generally 409 Declarations in Actions of Tort 413 Counts: Joinder of Causes of Action . 417 Joinder of Counts: Election 418 The " Common Counts " • 421 Account annexed ........ .... .... 423 Substitute for " Trover " 425 Declarations on Written Instruments 427 Bonds and other Conditional Contracts 431 Real Actions on Mortgage Titles 432 Several Liabilities on Written Contracts ^ . .' 433 Statutes : how referred to 435 Trespass quare Clausum 436 Declaration in Writ . . . j. 437 Declaration, Filing of 437 TABLE OF CONTENTS. XV PAGE Bill of Particulars , . . . 439 Demurrer: in general . 441 Causes of : in general 44t5 For Misjoinder of Counts 448 In Actions of Tort 449 Demurrers to Answers 450 Particulars demurred to : Certificate 450 Of Answers : In Abatement 451 Answers over after Plea in Abatement 453 Equitable Defences 453 Pleas in Bar and the General Issue 454 Joint Answers : Inconsistent Defences . . .' 456 Denials in Answers 458 Allegations in Answers 463 Special Denial of Signatures 472 Written Instruments 474 Conditional Obligations, &c 475 Pleadings after Answer : Replication 475 Demurrer by Replication 478 New Facts : Supplemental Pleading 478 Allegations in the Alternative 479 Pleadings — how construed 479 Issue : when joined 483 Indorsement of Process . 484 Abatement 487 No Abatement for Circumstantial Errors 491 Non-Joinder : New Writ 493 Issue of Fact on Plea in Abatement 495 Amendments : After Pleas or Answers in Abatement 495 In general before Judgment 497 Interpleading by Amendment ■. . . 499 Of Writs 500 Of Declarations 505 After Verdict 506 After Judgment 511 Of the Record 511 Defaults 513 Advancing Causes for Speedy Trial 515 Interrogatories 515 Answers to .» 518 Neglect to answer 521 Interlocutory Orders 523 By Agreement of Parties 523 OfEer of Judgment 525 Hearing of Demurrers 526 XVI TABLE OF CONTENTS. PAGE Claim of Jury Trial : Court Cases 527 Trials not to be delayed 531 Wrong Venue 531 Counts not proved to be struck out 532 Pleadings not Evidence 532 Offer of Judgment not Evidence 535 Answers to Interrogatories 535 Allegations not Evidence 535 Justification in Slander not Proof of Malice 536 Truth, of Libel a Justification 536 Defences to Actions on Judgments 537 Arrest of Judgment 537 Suggestion of Changes after Suit brought 540 No Change in Rules of Evidence, &c 541 Identity of Cause of Action : Amendment 541 Corporation as Party 547 Facts to be taken as admitted 547 Sections applicable to Real and Mixed Actions 548 Sections applicable to District, Police, and Municipal Courts and Trial Justices 548 Statute Forms 550 Selected Forms 577 INDEX 591 INDEX TO CASES CITED. [the PtaURES BEFEB TO THE PAGES.] A. Abbott V. Stevens 425 Adams v. Barry 413 V. Cordis 55 V. Cummiskey 327 V. Mills 157 V. Kobinson S51 V. Scott 49 V. Stone 49, 565 V. Wadleigh 253 Alden v. Pearson 468, 578 Alderman v. French 536 Aldrich v. Aldrich 82 V. B. & W. E. R. 372 Alger V. Seaver 99 Allen V. Codman 418 V. Hall 55 V. Hawks 233 Allerton v. B. & M. E. E. 413 Allin V. Conn. River Lumber Co. 28, 45 Almy V. Wolcott 153 Amadon v. Mann 154 American Finance Co. v. Bostwick 214 American Railway Frog Co. !>. Haven 98 Ameriscoggin Bridge v. Bragg 485 Ames V. Bates 348 V. Stevens 236, 420 V. Winsor 513 Amherst & Belohertown R. E. v. Watson 517, 520, 522, 527 Andover v. County Commissioners 511 Andrews v. Ludlow 49 V. Mich. Cent. R. R. 34, 141 Anonymous 253 Answer of Justices 23 Anthony v. Travis 369 Arnold v. Roraback 330 V. Tourtellot 192 ArviUa v. Spaulding 390 Ashley v. Root 390 Ashton V. Touhey 281 Ashuelot Bank k. Pearson 2, 490, 603, 538 ^shworth V. Kittredge 276 Aspinwall v. Cushman 7 Atkins «. Sawyer 159 Atlantic Nat'l Bank v. Harris 55? Attorney Gen. v. Barbour 351 V. Boston 99, 134 V. Mayor of New Bedford 98 V. Northampton 91 Atwater v. Clancy 420 Atwood V. Dumas 55 V. Scott 266 V. West Roxbury Co-op. Bank 186 V. Wheeler 337 Augur Steel Axle & Gearing Co. V. Whittier 508 Austin V. Cox 407 V. Lamar Ins. Co 37, 500 V. Moore 316 Babcock v. Thomas 439 Bacon v. Charlton 243 V. Crandon 287, 304 V. Lincoln , 178, 428 Badlam v. Tucker 168 Bagley v. White 180 Bailey v. Chesley 498 Baird v. Williams 190, 191 Baker v. Baker 192 V. Carpenter 518 V. Copeland 148 V. Thompson 89 ». Willis 173 Balch 1-. Shaw 192, 511 Baldwin v. Gregg 536 V. Hildreth 566 V. Soule 505, 566 0. Western E. R. Co. 408 Ball V. Claflin 644 XVUl INDEX TO CASES CITED. 318, 305, 448, 286, Ball V. Gilbert 296, 298, Ballou V. Wells Bangs V. Watson Bank of Brighton v. Smith Bannon v. Angier Barber v. Parsons Barden v. Crocker Barker v. Haskell Barlow v. Leavitt Barnes v. Smith Barnstable Savings Bank v. Higgins V. Snow Barren v. Benjamin Barre Nat'l Bank v. Hingham M'f g Co. Barrows v. Rose Barry v, Hogan V. O'Brien Barstow v. Marsh V. Robinson Bartlett v. Brickett V. Kidder Barton v. Radolyffe Bass V. O'Brien Bassett v. Bassett V. Sanborn Batchelder v. Batchelder Bates V. Ray V. Tappan 240, V. Willard Battey v. Holbrook Balttley v. Faulkner Baxter v. Abbott V. Doe V. Massasoit Ins. Co. V. Paine Bayley, Petitioner 192, Bean v. Green Bearce w. Bowker 529, Beatty w. Randall Belknap v. Gibbens 41, 46, 50, Bell V. Walsh Bemis v. Charles V. Leonard Benedict v. Morse Bennett ». Clemence 386, 444, 461, V. Russell Benthall v. Hildreth 451, Bentley v. Ward 385, 391, Bergen v. Jones Bernard v. Cafferty 430, Beverstock v. Brown Biokford v. Rich 55, Bicknell v. Bicknell 208, f. Cleverly Biggane v. Ross Bill V. Boynton V. Stewart Billings V. Thomas Binney v. Russell Birnbaurtt v. Crowninshield 299 476 57 319 508 306 27 239 539 512 322 207 30 34 46 546 68 370 551 68 61 454 462 426 423 375 28 319 .347 318 408 274 39 520 552 347 405 530 449 139 345 271 161 71 575 194 491 392 392 583 48 552 552 165 19 294 365 62 257 376 Blackington v. Johnson 277, 295, 388, 532 576 371 471 406, ( 216,; Blackler v. Boott Blair v. Laflin Blake v. Damon V. Darling B. Everett ' 410, V. Jones V. Stoddard Blake's Case Blanchard v. Cook V. Ferdinand V. Walker 5, V. Waters Blish V. Harlow Bliss V. Bliss 492, V. Nichols Blood V. Harrington V. Wilson Blume V. Gilbert Bodurtha v. Goodrich Bogart V. Brown Bond «. Bond I). Fay V. Ward 169, Booth V. Commonwealth 112, Borden v. Saekett Borrowscale v. Bosworth 226, Boston i'. Richardson V. Robbins Boston Acid Co. v. Moring Boston & Albany R. R. v. County Commissioners V. Pearson Boston & Fairhaven Iron Works V. Montague Boston Bank v. Minot Boston Belting Co. v. Boston Boston Duck Co. v. Dewey 466, Boston Glass M'f y v. Langdon Boston Lead Co. v. McQuirk Boston Music Hall v. Cary Boston Relief and Submarine Co. V. Burnett Boston Water Power Co. v. Boston Bostwick V. Bass Boswell V. Cutter Bosworth V. Pomeroy Bottom V. Clarke Bottum V. Fogle 379, Bourne v. Buffington Boutelle v. Dean Bouv^ V. Cottle Bowditch Ins. Co. u. Winslow 115, Bowler v. Palmer 364, Boyce v. Wheeler Boyden v. Lamb V. Moore Boyle V. Boyle V. Burnett Boylen v. Young 523 62 519 332 529 524 196 40 74 504 634 194 423 186 113 270 374 288 343 113 571 373 534 121 584 99 506 257 48 236 470 495 480 163 479 98 52 388 319 49 381 270 279 242 392 366 386 494 245 72 373 58 INDEX TO CASES CITED. XIX Boynton v. Bodwell 460 V. Warren 180 Brackett v. BuUard 163 Bradford v. French 194 V. Stevens 232 V. Tinkham 409 Bradley v. Beetle 84 V. Burton 333 Brady v. Ludlow M'f g Co. 421 Brainard v. Conn. River R. R. 92 Brannon ». Hursell 557 Breck i-. Blair 181 Bresnihan v. Sheehan 157 Brettun v. Anthony 565, 6tj6 Crewer v. Boston, Clinton, & Fitch- burg R. K. Co. 90, 94 V. Holmes 119 V. Housatonic R. R. 282 Brewster v. Bailey 164 Brickett v. Wallace 244, 572 Bridge v. Conn. Mut. Life Ins. Co. 499 Bridgliara v. Tileston 207 Brier v. Woodbury 40, 150 Briggs V. Hervey 270 V. Richmond 425 V. Taunton 286, 297 Brighani v. Burnhain 537 17. Bste 153, 490 Brimmer v. Boston 91 Brooks V. Barrett 274 V. Prescott 530 V. Weeks 277 V. White 571 V. Wright 533 Brown v. Castles 417, 445 V. Gilman 379 v.'Mass. Title Ins. Co. 537 V, Neale 167 V. Pease 419 V. Seymour 296 V. Tweed 60 V. Waite 171, 172 i>.- Wakefield 481, 556 V. Webber 35, 46, 201 Browne v. Hale 370, 371, 372, 373, 385 Bruce v. Matthews 459 Buck V. Asbuelot M'f'g Co. 141 V. IiigersoU 167 Buckland v. Green 500 Bulfinoh V. Winchenbach 49 Bullock V. Hayward 472, 491, 575 Burgess i'. Bugbee 440, 505 Burghardt v. Van Deusen 276 Burke V. Miller 476 Burnap v. Campbell 61 Burnett v. Smith 375 Burnham v. Allen 408, 409 V. Roberts 430, 554 V. Seaverns 583 Burns v, Marland M'f'g Co. 57 Burr v. Joy 428 Burt V. Allen 255 V. Merchants' Ins. Co, 279, 374 V. Wigglesworth 274 Bush V. Hovey 118, 821 Butchers' and Drovers' Bank v. McDonald 458 Butler V. Fessenden 138 V. Frank 59 V. Shapleigh 289 Butt V. Great Western Ry. Co. 477 Butterfield v. Converse 178 Butterwortli v. Western Ass. Co. 234 Byers v. Franklin Coal Co. 497 C. Cahill V. Campbell 168 Calioon V. Harlow 4 Cains v. Tirrell 206 Calder v. Haynes 444 Caldwell v. Healey 184 V. Lovett 485 Cambridge v. R. R.'Com'rs 90 Campbell v. Brown 184, 185 V. Howard 364 Canfield v. Canfield 374, 390 V. Miller 492 Cannon v. Leonard 509 Cape Ann Nat'l Bank v. Burns 474 Capen v. Duggan 48 II. Doty 346, 347 Cardany v. N. E. Furniture Co. 53 CardeU v. Bridge 206, 423, 553 Cardival v. Smith 197, 289, 583 Cardoze v. Smith 469, 581 Carleton v. Akron Sewer Pipe Co. 388 V. Davis 161 Carley v. Vance 405 Carlton v. Pierce 420 Carpenter v. Aldrich 193 V. Turrell 187 Carrique u. Sidebottom 53 Carruth v. Grassie 172 Carson v. Carson 48 Carter v. Smith 888 V. Wabash, &c. R. R. 213 Cary v. Bancroft 205 Case V. Ladd 480, 527 Cass V. Boston & Lowell R. R. Co. 579 Cassidy v. Farrell 456 Cassier's Case 155, 332 Caswell V. Fellows 571 V. Keith 173 Caverly v. Hudson 291 V. McOwen 422, 458, 465 Cecconi v. Rodden 375 Central Bridge Co. v. Lowell 5S4 Central Mills f. Stewkrt . 184 Central Mills Co. v. Hart 553 Chace v. Sherman 444, 449, 566 D. Trafford 554 XX INDEX TO CASES CITED. Chafeee v. Pease 507 Chamberlain v. Hoogs 538 Chandler v. R. R. Com're 92, 133 Chapin v. White 566 Chaplin v. Harbeck 555 Chapman v. Briggs 168 Cliarman v. Henshaw 422, 554 Chase v. Aldermen of Springfield 95 V. Allen 461 V. Xngalls 127, 281 Chase's Pat. Eleyator Co. v. Bos- ton Tow Boat Co. 227 Chatham Furnace Co. u. Moffatt 377 Chemical Electric Light Co. v. Howard 281, 454 Chenery v. Barker 467, 479 V. Goodrich 416, 666 V. Holden 443, 451 Cheney v. Whitley 341, 342 Cheshire Nat'l Bank v. Jewett 161, 169 Chipman v. Fowle 348 Churchill v. Palmer 273, 374, 384 V. Ricker 520, 535 Claflin V. Thayer 64, 452, 514 Clap V. Guild 64 Clapp V. Campbell 420 K. Clapp 227 V. Stoughton 407 V. Thaxter 265 V. Thomas 176 Clark V. Brewer 49 V. Child 319 V. Conn. R. R. Co. 64, 452, 614 V. Fletcher 230, 233, 270. V. Gardner 59 V. Hougliton 257, 556 V. Lamb 507 V. Martin 67 V. Montague 438, 439 V. Suudder 27 V. Ward 437 V. Wortliington 405 Clarke v. Hastings 468 V. Zettick 566 Clary v. Thomas 430 Clay V. Barlow 539 V. Brigham 442, 444, 566 Cleary v. Sohier 423, 563 Cleaves v. Lord 508 Cleveland v. Welsh 85 Cleverly v. O'Donnell 529 Clinton Nat. Bk. v. Bright 53 Coburn v. Clark 188 V. Palmer 73, 841 V. Whitely 285, 291 Cochran v. Duty 409 Cochrane v. Boston 530 V. Gushing 434 V. Rich 166, 167 Codman v. Evans 683 V. Freeman 165 Coffin V. Abbott Colburn v. Phillips Colby V. Coates Colcord V. Swan Cole V. Ackerman V. Hall Collins V. Evans V. Holyoke V. Smith Colt V. Cone V. Learned V. Miller 122 447 49 498 514 250 61 94 53 206 434, 435, 461 429 Colton V. King 424, 496, 508, 565 Columbian Book Co. v. De Golyer 49 Combs V. Scott 640 Commonwealth v. Ayres 86 u. Bigelow 71 V. Boston & Me. R. R. Co. 891 V. Brigham 180 V. Campion 364 V. Carr 495, 496 V. Coolidge 278 V. Costello 186 V. Costley 279 V. Dam 275 V. Donahoe 277 V. Dowdican's Bail 529, 630 V. Dracut 447, 448, 639 u. Dudley 70 V. Ellis 90, 113 V. Fredericks 490 V. Gloucester 386 V. Goddard 276 V. Greenlaw 370 V. Hall 276 V. Huntley 82 V. Joslin 380 V. Lannan 533 . V. Marshall 378, 379 V. McCann 219 «. Moore 83 V. MuUins 276 V. Scott 226, 885, 396 V. Shattuck 70 V. Smith 263 V. Walsh 269 Comstock V. Son 454 Conant v. Perkins 118 V. Sheldon 156 Conn. River R. R. v. Co. Commis- sioners 133, 134 Conners v. Holland 552 Converse v. Damariscotta Bank 503 V. Ware Savings Bank 246, 499 Conway v. Callahan 370, 371 Cook V. Cook 565 V. Holbrook 176 V. Holmes 254 V. Merrifleld 844 V. Shearman 476, 576 Cooke V. Gibbs 88, 323 INDEX TO CASES CITED. XXI Cooney « Burt 370, 371 Dalton V, Barnard 543 Cooper V. Landon 662, 581 Daly B. Boston & Albany R. R. 506 V. McKenna 471, 575 Daniels v. Hayward 173 Corbett v. Greenlaw 229, 234 V. Newton 491 Corcoran v. Batehelder 250 Danielson i. Andrews 503 Corey v. Janes 206 Darling v. Andrews 57, 59 176 Costelo f. Crowell 501, 557 Davenport v. Burke 62, 63, 64 Costigan v. Lunt 43.'i V. Holland 600 Costley V. Commonwealtli 322 V. Tilton 319 (Coulter V. Haynes 484 Davidson v. B. & M. K. R. 356 Cowley V. McLaughlin 159, 313 V. Delano 476 ,481 V. Patch 492 Davis V. Alden 361 V. Train 25, 365, 366, 393 444, 527 V. Bean 466 Crafts V. Belden 420 V. County Commissionerf 92 Cragin v. Warfield 502 V. Ferguson 287 Craig V. Gisborne 139 V. Gay 366 Cram v. Moore 225 V. Hastings 293 Crandall v. Slaid 194 V. McArthur 486 Crane v. March 159 c. Parker 27 Crawford v. Capen 168 V. Stone 160 V. Waters 277 V. Travis 458 Crease v. Babcock 498 • v. Whithead 486 Orimm v. Commonwealth 97 Davis's Case 326 Crocker v. Baker 189 Davlin v. Stone 172 Crockett v. Drew 104 Dawson v. Weatherbee 68 Crompton i: Pratt 570 Day V. Alderman of Springfield 133, Crosby v. Harrison 488 134 V. Wentworth 73 V. Berkshire Woollen Co . 286 306 Crossen v. Dryer 194 V. Cooley 277 Grossman v. Grossman 248 V. Floyd 490 Crow !). Stowe 382 V. Lamb 177 178 Crowley v. Appleton 375 Dean v. Carruth 409 Crowninshield v. Crowninsliield '274 !-. Richmond 407 Cullen V. Sears 380, 382 424, 553 Dearborn v. Richardson 181 Cummings v. Jacobs 264 Deming v. Darling 375 u. Noyes 113 Denham v. Bryant 507 V. Pruden 113 Denneliey c. Woodsum 416 Cunningham v. Hall 419 Dennie r. Harris 176 V. Hogan 60, 186 V. Williams 528 i;. Mahan 518 Dennis v. Arnold 330 tiv Magoun 226 V. Twitchell 58 V. K. R. Commissioners 92 Denny v. Lincoln 178 Curran v. Burgess 105 V. Merrifield 178 V. Rummell 572 V. Ward 546 Currier v. Davis 317 Desper v. Continental Water V. Jordan 244, 672 Meter Co. 34 V. Lowell 313 Dewey v. Humphrey 293 V, Silloway 534 Dewing u. Durant 330 Curry v. Porter 279, 374 Dickie v. B. •& A. R. R. 413 Gushing v. Arnold 347 Dickinson v. Lane 439 V. Billings 275, 276 V. Willard 670 V. Kenfleld 366 V. Williams 655 Gush man v. Carpenter 323 V. Worcester 94 V. Davis 470 Dietrich v. WoUfshon 501 546 Cutter V. Howe 160, 286 Dike V. Story 10 V. Richardson 544 Dillon V. Brown 675 Dingman v. Myers 88 331 D. Dion V. Powers 208 209 Dittmar v. Norman 372 393 Dakin v. Allen 71 Dix V. Huntress 503 Daley v. Carney 183 Dodge V. Doane 323 341 xxu INDEX TO CASES CITED. Doherty v. Brown C66 V. Lincoln 371 Dolan V. Alley 370 V. Thompson 541 Dole V. Wooldredge 528, 529 Donahue v. Woodbury 571 Donelson v. Coleraine 207 Donnell v. Manson 434 Doolittle V. Dwight 552 Doran v. Cohen 544 Dorr V. McKinney 440 V. Richardson 366 V. Treraont National Bank 274, 372 Douglas V. Nichols 291 Dowling«. Clark 173 Downing o. Coyne 364 Downs V. Bowdoin Sq. Bapt. Soc. 376 V. Fuller 315 V. Hawley 257, 418, 444, 666 Dows >.'. GriswoM 241, 294 V. Swett 397 Draper v. Sexton 374 V. Wood 572 Drowne t>. Stimpson 93, 103 Drum V. Drum 558 Duckworth v. Diggles 237 Dudley v. Keith 196, 197 DufEee v. Call 197, 289 Duhamell v. Ducette 539 Dunbar v. Baker 239 V. Johnson 554 Dunliara v. Burlingame 6 Duppa 0. Mayo 427 Durant v. Essex Co. 398 Dwight V. Holbrook 480 E. Eager v. Taylor 174 Eagle Bank v. Chapin 270 Eames v. Prentice 567 Earle v. Hall 304 Eastern R. R. Co. o. Benedict 483 Eastman v. Crosby 374 Eddy V. Chase 447 V. O'Hara 55,56 Pdler V. Thompson 492 Edmunds v. Hill 62 Edwards v. Sumner 188 17. White Line Transit Co 49 Ela V. Cockshott 278, 381, 382 Elder v. Bemis 293 V. Dwight M'f'g Co. 540 Eldridge v. Kingsbury 159, 180 Eliot V. McCormick 103, 108, 11.3, 142. 322, 537 Elliot V. Elliot 386 Elliott B. Hayden 492, 534 V. Jenness 406 V. Lyman 517 Ellis V. Atlantic & Pac. E. E. 366 V. BuUard 104 ■0. County Comniissioneis 611 V. Kidgway 508 Ellison u. New Bedford Savings Bank 434 Ellsworth V. Brewer 366 Ely V. Forward 486 Emerson v. Upton 546 V. White 242 Emery v. Bidwell 52, 249 I'. Lowell 414 V. Osgood 504, 640 V. Seavey 50, 166, 352 Emery's Case 86 Estabrook v. Boyle 480 Estes V. Tower 4l) Eustis V. Holies 467 Evans v. Warren 167 Eveleth v. Burnham 186 Ewer V. Beard 294 Exchange Bank of St. Louis v. Bice 651 Fair v. Manhattan Ins. Co. 230, 231, 234 Fairbanks v. Mayor & Aldermen of Fitcliburg 96 Fales V. Russell 556 V. Stone 293 Fall River v, Riley 138 Farmer v. Storer 805 Farmington River Water Power Co. V. County Comm'ra 90, 93, 94, 96, 97, 511 Farnum v. Pitcher 876 Farrar v. Parker 24 Fay V. Duggan 62, 367, 492 V. Sears 53, 54, 515 ». Taf t 504 V. Upton 365 V. Wenzell 612 Fels V. Raymond 364, 522 Felton V. Dickinson 422 Feneley v. Mahoney 485 Feran v. Rudolphsen 168 Ferguson v. Dean 382 Fern v. Cushing 179 Fickett V. Durham 321 First Ward Nat'l Bank v. Thomas 188 Fisher x>. Deans 322 V. Essex Bank 163 V. Fraprie 452, 453, 495, 496 Fisk V. Gray 229, 287, 316 Fiske V. Steele 206 V. Witt 54 Fitch V. Stevens 498 Fitchburg R. R. Co. e. Freeman 530 Fitzgerald v. Allen 423 V. Jordan 426 INDEX TO CASES CITED. xxm Fitzgerald v. Salentine 89, 139 Gardner v. Dyer 566, 583 Tlagg V. Jones 490 V. Gardner 307, 440 Flanagan v. Cutlei 50, 167 «. Way 178 Fletcher v. Sibley 379 Gass V. Smith 177 Flint V. Hubbard 232 Gassett v. Cottle 364, 391 Florence Machine Co. v. Daggett 281 i>. Grout 54 Fogel V. Du?sault 356 , 359, 460 (Jay V. Cambridge 563 Foley V. Haverill 91 V. Gay 348 Folger V. Columbian Ins. Co. 367, 510, V. Raymond 819, 320 511 V. Richardson 104, 105 V. Washburn 460 V. Southworth 175 Folsom c. Clemence 164, 426 Gaylord v. Norton 236 V. Cornell 356 Geddes v. Adams 481 V. Knowles 500 George v. Reed 293 Forbes v. American Mut Life Ins. George Woods Co. v. Storer 454 Co. 406, 432 Gerry v. Gerry 52, 296 Forbush v. Lombard 437, 568 Getcliell V. Moran 89 Force v. Martin 277 Gibbs V. Taylor 10, 325 Ford V. Burchard 428 Gibson v. Gibbs 174 V. United States Mut. Ace. V. Jenney 172 Rel. Co. 374 Gifford V. Rockett 68 Foss V. Lowell Five Cents Savings V. Whalon 125 Bank 556 Giles V. Ash 59 ■0. Nutting 518 GilfiUan v. Mawnkinney 375 Foster v. Morse 528 Gilmore v. Carr 290 V. Park Commissioners 98 Gladhill, Ex parte 38 V. Plummer 124 Glendon Company v. Townsend 240 V. Thompson 227 Glidden v. Child 382, 424 Fowle V. Gardner 517 Gloucester v. County Commission- Foye V. Patch 461, 467 ers 612 Framinghara Bank v. Gay 481 Glover v. Hunnewell 472 Francis v. Howard 153 Goddard v. Sawyer 656 V. Rosa 375 Goff V. Rehoboth 551 Franklin Saving Bank v. Reed 451 Golden v. Blaskopf 122, 125 Freeland v. Eitz 429 V. Knowles 443, 444 Freelove v. Freelove 62 Good V. Lehan 125 Freeman v. Alderson 142 Goodnow V. Hill 318 V. Creech 542, 543 Goodrich v. Hooper 566 V. Griggs 380 V. Willard 286 Friend v. Pettingill 477 Goodsell V. Trumbull 466 Frost V. Gage 410, 551 Goodridge v. Ross • 108 Frost's Case 837, 339 Goodwin v. Daniels 472, 575 Fuller V. Damon 250 V. Hill 374 V. Ruby 374 Goodyear Dental Vulcanite Co. v. V. Storer 58 ,115 , 119, 121 Bacon 366, 448 Furber v. Dearborn 61, 165 Gordon v. Jenny 67 Furlong v. Leary 71, 366 V. Parmelee Goss V. Austin Gott V. Adams Express Co. Gould V. Hawkes 417 469 619 257 G. Goulding v. Hair V. Smith 166 589 Gaffney v. Hayden 423 Gove V. Learoyd 454 Gage «. Campbell 382 Goward v. Dunbar 294 Galligan v. Clark 302 Gragg V. Martin 57 V. Fannan 205, 322 Grand June, R. R. v. Co. Com- Gallup V. Robinson 176 missioners 499 Galpin v. Critchlow 214 Granger v. Ilsley 469 Gardner v. Barnes 159, 180 V. Parker 354, 362 0. Boston 236 Grant v. Lyman 178 V. Dudley 351 Graves v. Cushman 143, 145, 147 XXIV INDEX TO CASES CITED. Graves v. Dawson 583 Gray v. Bridge 98 V. Cook 498 o. Cropper 449 V. Moore • 122 V, Paxton 493 V. Thrasher 75, 515 Greeley v. Paige 351 Green v. Dana 509 V. Gould 276 V. Nelson 55 Greenwood v. Bradford 221, 512 V. Lake Shore E. E. Co. 514 V. McGilvray 325 Grimes v. Briggs 420 Grinnell v. Spink 470 Grocers' Bank u. Kingman 433 Grosvenor v. Danforth 105 Guez V. Dupuis 355 Guild V. Bonnemort 29, 452 V. Cranston 40 Guptill V. Ayer 48, 78 H. Haekett v. Buck 846 V. Potter 62 Hadley v. Peabody 54 V. Watson 878 Hale V. Eice 370, 371 V. Wilson 552 Hall V. Carney 162, 171 V. Briggs 607 V. Foster 557 V. Hoxie 347 V. Mayo 436 a. Thayer 2 V. White 62 V. Wolcott 122 V. Wood 553 Hallett V. Fowler 68 Halliday v. Daggett 491 Ham V. Kerwin 473 Hamilburgh v. Shepard 583 Hamilton v. Xngraham 501 Hamlin v. Jacobs 868 Hammond v. County Comm'rs 92 V. Eaton 192, 505 Hancock v. Colyer 55 V. Franklin Ins. Co. 517, 520 Hannum v. Tourtellott 135 Happenny v. Trayner 543 Harding v. Downs 197, 289 V. Morrill 616, 522 V. Noyes 519, 522 V. Pratt 386, 420 Hardy v. SafEord 345, 346 Harmon v. Osgood 48 Harnden v. Gould 168 Harriman v. Gray 168, 180 Harrington v. Conolly V. Harrington Harris v, Doherty V. Newbury Harrison v. Bailey Hart ». Fitzgerald V, Johnson V. Waitt 41, 138 228, 623 46, 137, 139 564 557 62, 492 124 503 Hartford v. Co-operative Mut. Homestead Co. 291, 293 Hartford Ins. Co. v. Matthews 416 Hartwell v. Hemmenway 486 Harvey v. De Witt 23, 448 Haskell v. Littlefleld 76, 331 V. New Bedford 535, 575 V. Varina 346 Haskins v. D'Este 474 Hastings v. Bolton 85, 452, 488, 491 V. Hamilton Ins. Co. 469 V. Hastings 461, 575 Hatch V. Attleborough 316 Hathaway v. Crocker 318 V. Eussell , 55 V. Tinkham 375 Haven v. County Comm'rs 95 V. Snow 545 Haverhill L. & F. Ass'n v. Croniii 121, 508 Hawes v. Gustin 268 V. Ryder 457, 556 V. Shaw 73 V. Waltham 49 Hawkes v. Davenport 600 V. Phillips 435 Hawkins v. Graham 286, 296, 297, 298 Hawks V. Hawks 482 Hayden v. Binney 180 Hayes v. Collins 122 V. Wilson 439 Haynes v. Saunders 489 Hayward v. French 507, 509 V. Leonard 423 Hazard v. £)ay 530 V. Wilson 29, 35, 211 Hazleton v. Lesure 157 Healey v. Lyons 281 Heard ». Fairbanks 169 Hearsey v. Bradbury 40, 160 Hebron Church v. Adams 73 Heckle v. Lurvey 426 Heims v. Ring 290 Hemmenway v. Hickes 104, 409 V. Wheeler 160 Henderson v. Benson 353 Hendrick v. Whittemore 5, 103 Hennessey v. Farrell 52 Henshaw v. Cotton 134 Herring v. Downing 2'41 Hervey v. Mosely 444 Higgins V. Drennan 161 V. McDonnell 428 INDEX TO CASES. CITED. XXV Hildreth v. Brigham 332 Hill V. Cutting 666 V. Dunham 540 V. Wright 168 Hillman a. Whitney 448 Hinckley v. Union Pacific R. R. 556 Hiss V. Bartlett 154 Hitchcock V. Baker 154 Hobbs V. Stone 521 Hodgkins v. Price 70 Hogan V. Ward 237, 386 Holbrook v. Haney 380, 388 V. Lackey 207 V. Waters 48, 296 Holden v. Jenkins 474 Holdsworth v. Tucker 227 Holland v. Martin 239 HoUenbeck v. Rowley 471 HoUis V. Richardson 408, 538 Holly V. Boston Gas Light Co. 404 Holmes v. Hunt 232 V. Turner's Falls Co. 230, 374 Holet V. Steward 416, 562, 581 Homer v. Homer 510 V. Perkins 417 Hooper v. Cox 334 V. Jellison 47 Hooton V. Gamage 167 Home V. Meakin 509 Horrigan v. Clarksburg 374 Horton v. Wilde 113 Hotchkiss V. Judd 447 Houghton V. Ware 65 Howard o. Williams 173 Howe ;;. Bartlett 163, 179 V, Freeman 164 V. Pierson 255 Howes V. Grush 278 Hoyt V. Robinson 139 V. Sprague 298 Hubbard v. Charlestown Br. E. R. Co. 551 V. Hubbard 516 V. Knous 244 V. Moseley 459 Hubner v. Hoffman 286, 290, 384 Hubon V. Bousley 120 Hudson V. Marlborough 374 Hulbert v. Comstock 472, 509 Hiilett V. Pixley 154, 419 Hull !i. Richardson 555 Humphrey v. Berkshire Woolen Co. 213 Hungerford Nat'l Bank v. Van Nos- trand 458 Hunt V. Adams. 408 V. Hanover 285 V. Lucas 514 Hunting v. Downer 279, 374, 467 Huntress v. Burbank 55, 434, 552 Hussey v. Crawford 295 Hutchinson v. Gurley 115 Hutchinsop v. Tucker Hyde Park v. Wiggin Hylaud v, Giddings lasagi V. Shea Ide V, Cleworth V. Pierce Ingalls V. Baker II. Hobbs Ives V. Hamlin 502 134 462 377 28, 106 257 176 367 24 Jackman v. Doland 465 Jackson v. Colcord 163, 166, 189. V. Kimball 166 V. Stetson 536 Jacobs 0. Measures 37 V. Potter 286 Jaha V. Belleg 451, 452, 489, 491 Jamaica Pond Aqueduct Corp'n v. Chandler 382, 530 James v. Southern Lumber Co. 238 V. Townsend 119 Jaques v. Sanderson 504 Jarvis v. Mitchell 60 Jason V. Antone 58 Jenkins v. Bacon 419 V. Brewster 207 Jennings v. Fitchburg R. R. 414 Jenks V. Dyer 58 Jewett V. Locke 450 Joannes v. Burt 415, 449, 566 V. Pangborn 290 V. Underwood 381, 486 Johnson v. Babcock 172 V. Boudry 551 V. Couillard 890 V. Day 192 V. Harvey 331 V. Neale 68 I). Reed 443 V. Stevens 159 V. Stewart 61 V. Summer 163 u. Trinity Church Soc. 555 u. Waterhouse 104 I). Wetherbee 113 Johnston v. Trade Ins. Co. 141, 142 Jones V. Andover 414, 457, 462, 564 V. Ashburnham 409 V. Carpenter 348 V. Carter 287, 309 V. Dow 405, 412, 480, 556 V. Ilsley 44, 437, 505, 555 V. Mitchell 159 I. Sisson 375 XXVI INDEX TO CASES CITED. Joyner v. School Dist. in Egremont 43 Judge V. Herbert 180 Judsoa V. Adams 28, 43, 606 Keegan v. Cox • 365 Keenan v. Knight ' 437, 439, 490 Keene v. White 115, 351 Keenholts v. Becker 568 Keitli V. McCaffrey 314 Kellar w. Webb 5U7 Kelley v. Riley 313, 373 Kellogg V. Kimball 240, 241, 443, 445, 448, 477, 627, 544 V. Northampton 564 I'. Waits 298 Kempton v. Saunders 240 Kenady v. Lawrence 564 Kendall v. Bay State Brick Co. 568 V. Garland 511 V. Weaver 234, 492 Kennedy v. Doyle 241 V. Gooding 522 Kent V. Charlestown 268 Keough V. Holyoke 98 Kerrigan's Case 6, 81 Kettell V. Foote 531 Kiff V. Old Colony & Newport Rail- way 176 Kimball v. Amesbury 233 V, Preston 366 V. Wilkins 500 King V. Burnham 283 V. Dewey 62, 64 V. Dickerman 70 V. Howard 450 V. Lawson 73, 74 V. Marrow 572 Kingsley v. Davis 492 Kinney v. Berran 251 Kinnicut v. Stockwell 268 Kittredge v. Rnssell 220 Knapp w. Lambert 214 V. Slocomb 405, 457, 459, 464, 483, 567 Knight V. Bowley 55 V. Hurley 309 Knott V. Sargent 583 Knowles v. Bachelder 530 V. Paine 365 Kramer v. Cook 411 KuUburg V. O'Donnell 279 L. Ladd V. Kimball Ladrick v. Briggs Lamb v. Stone 503 153 307 Lamson & Goodnow M'f'g Co. v. Russell 432, 471 Lanahan v. Porter 642 Lane v. Chadwiuk 61 V. Felt 53, 55 0. Holman 336 Langmaid v. PufEer 601 Lannan «. Walter 65 Lapham v. Almy 285 V. Locke 40 V. Norris 291 Larkin v. Boston 564 V. Wilson 45 Lathrop v. Bowen 61 452, 489 Lawrence v. Bassett 539 u. Souther 208 Lawton !>. Savage 70 Learnard v. Bailey 502 Leary v. Reagan 208 Leatherbee v. Barrett 436 Leavitt v. Lyons 123 Lee V. Gibbs 279, 381 V. James 179 V. Kane 202, 415, 445, 449, 666 Leggate v. Moulton 448 Lehan v. Good 125 Leighton v. Brown 319 Lenahan v. Desmond 539 Leonard v. Bryant 144, 315 V. Hannon 64 V. New Bedford Five Cents Savings Bank 52, 60 V. O'Reilly 302 V. Robbins 318, 433 V. Speidel 185, 434, 451 a. Stott 57 V. Whitney 61, 316 Lester v. Lester 502 Lesure v. Norris 207 Levi V. Brooks 471, 575 Levy V. Gowdy 569 Lew u. Lowell 202, 455 Lewis V. Austin 501 V. Brooks 207 V. Denney 46 V. Northern R. R. 145 V. Webber 169 Leyden v. Sweeney 359, 364 Libby w. Downey 472 Lichman v. Potter 64, 150 Lienow v. Ellis 27 Lincoln ii. Butler 430, 436 ». Lincoln 459 V. Parsons 530 V. Taunton Copper M'f g Co. 24, 238, 5.39 Lindsey v. Leighton 274 V. Parker 844 Lineham v. Cambridge 519 Linton ". Allen 376 u. Hurley 329, 412 INDEX TO OASES CITED. XX VU Litchfield i'. Hutchinson 416, 562, Little V. Blunt Littlefield v. Pratt Livesey v. Bennett Locke V. Bennett Lockwood V. Corey Lombard u. Oliver 197, ! Lonergan v. Peck Long V. Drew 168, i Look V. Luce Looinis V. Lewis V. Wadhams Looney v. Looney Lord V. Baldwin 11. Wheeler Loring «. Eager V. Folger V. Salisbury Mills Lothrop V. Otis Lovell i.'. Earle V. Williams Lovett V. Salem & So. Danvers B. R. Lovewell v. Westchester Fire Ins. Co. Lowe «. Brigham 68 V. Pimental Lowell V. County Com'rs V. Merrimack M'fg Co. Lucas V. Nichols Luce V. Board of Examiners 98 Lucy V. Dowling Lunt V. Davison Lyon V. Coburn 163, V. Manning ' u. Prouty Lyons v. Cambridge V. Ward 450, 456, 478, 581 Marsh v. Gold 150 576 V. Hammond 524 442 Marshall v. Hosmer 150 261 V. Merritt 524 230 Martin v. Bayley 68, 166 168 V. Campbell 353 358, 369 289 V. Commonwealth 103 232 V. Tapley 368, 378 271 V. Tobin 207 825 Marvin v. Mandell 461 348 Mason v. Bowles 168 538 V. Massa 280 204 V. Pearson 116, 512 207 V. Waite 293 428 Mass. Kat'l Bank v. Bullock 25, 60, 187 893 60 Mathers v. Cobb 294 510 Mattel a. Conant 488, 489 471 Matthewson u. Moulton 120 424 May V. Gates 364 671 0. Wannemacher 176 418 173 ,69 424 94 223 46 ,99 512 101 342 476 374 380 536 M. Machinists' Nat'l Bank v. Dean Mack V. Parks Madden v. Brown Maher v. Dougherty 386, 406, ATahon v. Blake Mann v. Brewer V. Earle Mannan v. Merritt Manning v. Lowell 496 169 526 448, 527 419 498, 505, 555 433 172 377 502 652 187 206 153, 335 Mansfield v. Edwards V. Sumner Manson i>. Arnold Manuel v. Bates Markey v. Mut. Benefit Ins. Co. Marlett v. Jackman Marsh v. Bancroft 381, 382 468 166 V. Western Union Telegraph Co. 419, 445, 491 Mayor, &c. of London v. Cole 27 Maxham v. Day 62 McAllister v. Burrill 540 McAneany v. Jewett 367 McCallum v. Lambie 25, 366, 393, 444, 537 McCarren v. McNulty McCarthy v. De Best V. Swan McConologue's Case McCormick v. Carroll V. Fiske McCue V. Whitwell McDonald v. Faulkner McDonough v. Miller McGee v. Barber McGough V. Wellington McGregory v. McGregory V. Prescott McGuire v. Davis Mclniffe v. Wlieelock Mclntire v. Maynard Mcintosh V. Hastings McKinney v. Wilson McLaughlin r. Cowley McMahon v. O'Connor McQuade v. O'Neil 538 McRae v. Locke 367, 610 Mechanics' Sav. Bk. v. Waite 48 Medbury v. Watson 417 Mellen v. Whipple 561 Melvin v. Bird 77, 284 !!. Whiting 304 Mendon v. County Commissioners 97 Merchants' Bank, &c. v. Stevenson Merchants' Nat'l Bank v. Glendon Co. Merriam v. Whittemore 407 237 83, 85, 86 384 322 367 50, 190 278 76,78 187 656 222 602 361, 601 178 377 256 24, 405, 539 279 498 258 477 XXVlll INDEX TO OASES CITED. Merrigan v. B. & A. B. R. 374 Merrill v. Bullock 504 V. Larason 78 V. Mclntire 316, 469 V. Sawyer 160 Metcalf V. McLaughlin 426 Middlesex Co. v. Osgood 466, 467 Miles V. Boyden 203 Milford V. Commonwealth 18 Millard v. Baldwin 413 Miller v. County Commissioners 587 V. Lyon 305 V. Robinson 529 V. Shea 355 Minor v. Walter 205, 425 Mitchell u. Shanley 72 V. N. E. Marine Ins. Co. 223 M'Neil, Ex parte 132 Monies v. Lynn 226 Monk V. Beall 233 V. Guild 104 Montague v. Boston & Fairhaven Iron Works 205, 207, 441, 443, 478 Moore u. Cutter 288 V. Loring 286 u. Quirk 382 V. Speigel 489 Moors V. Goddard 59 Morasse v. Brochu 443 Morgan v. Ide 222 Morley v. French 491 Morrell v. Old Colony R. R. 238 Morrill v. Keyes 2-32 V. Norton 505 V. Lamson 193, 486 Morris v. Callanan 507 V. Farrington 29 V. Penniman 170 Morrison v. McDermott 145, 299 V. Underwood 108 Morse v. Dayton 364 n. Hutcliins 421 V. Lyman 351 V. Mason 367 V. Potter 422 V. Reed 239 V. Sherman 422, 552 w. Wood worth 380,381 Mortland v. Little 53, 58, 512 Morton-a. Morton 77 V. Sweetser 488 Mosher v. Murphy 184 Moulton V. Bowker 524 Mowry v. Chase 537 V. Cheesman 329 MuUaly v. Austin 406, 420, 448, 553 V. Holden 419 Mulligan v. Newton 169, 174 Mulry V. Mohawk Valley Ins. Co. 457, 466, 469 Murdock v. Caldwell 411, 447, 448 Murdock Parlor Grate Co. v. Com- monwealth 18 Murphy v. B. C. & F. Railroad 384 V. Galloupe 163 V. Merrill 35 V. People's £q. Mut. Fire Ins. Co. 475 Murray v. Chase 277 V. Norfolk 91 ;;. Shearer 342 V. Stevens 99 Nantasket Beach R. R. v. Ransom 120 Narragansett Bank v. Atlantic Silk Co. 271 Nash V. Brophy 500 V. Farrington 174, 173 Nason v. Holt 491 Nat'l Bank of Clinton b. Taylor 240 Nat'l Bank of Commerce v. Hunt- ington 34, 46 Nat'l Mechanics' & Traders' Bank V. Eagle Sugar Refinery 176 Needham v. Thayer 103, 322 Nelson v. Andrews 287 V. Ferdinand 446 V. Thompson 490 V. Weeks 571 Newcomb v. Worster 352, 353 New England Mut. Benefit Ass'n V. Varian 117, 121 Newell V. Chesley 234 New Hampshire Fire Ins. Co. u. Healey 376 New Hampshire Savings Bank v. Varnum 187 New Haven & North Hampton Co. V. Campbell 421 V. Hay den 434 V. Northampton 526 New Market Nat'l Bank v. Cram 338 New York Warehouse & Security Co. V. Loomis 258, 260 Nichols V. Prince 508 Nickerson v. Chase 48, 49 Niles !). Field '327 Noble V. Boston 384 Norris u. Munroe 352 Northborough v. Wood 454 North Bridgewater Bank v. Cope- land 469, 532 Nowell V. Waitt 342 Nowlan v. Cain 417 Noyes v. Sherburne 217, 363, 392 Nutter I.'. Framingham & Lowell R. R. Co. 248 Nye V. Old Colony R. R. Co. 523 INDEX TO CASES CITED. 0. Payson v. Macomber 450, 456, 498, 565, 574 O'Brien v. Annie 149 Peabody v. Hamilton 30, 41, 138, 139, V. Barry 583 143 V. Collins 54 V. Minot 2i)4 V. Murphy 375 Pearson v. Howe 416 Ocean Ins. Co. v. Portsmouth Ma- Pease v. Morris 317, 331 rine Railway 495 Peaslee v. Ross 232 V. Eider 848 Peck V. Fisher 169 O'Connell v. Bryant 293 V. Stratton 59 V. Jacobs 530 V. Waters 508 O'Connor v. Cavan 57 Peirce v. Richardson 191 Octo V. Tealian 62,63 Pelhara v. Aliirich 240 Odd Fellows Hall Ass' n vi Mc- Penhallow v. Dwight 169 AUister 42 Penniraan v. Cole 323 O'Grady v. Supple 227 530 V. Freeman 179 O'Hare v. Downing 184 V. Mathews 295 Old Colony R. R. v. Fall Eiver 91 Pennoyer v. Neff 142 Oliver v. Colonial Gold Co. 493 People's Eq. F. Ins. Co. v Arthur 458 O'Loughlin v. Bird 202 411, 452, 454, Perry v. Breed 890 490 V. Perry 330 O'Neal V. Kittredge 411 V. Porter 537, 566 O'Neil V. Harrington 178 240 «. Richardson 63 V. Wolffsohn 168 Peru Steel & Iron Co. t Whipple Opinion of Justices 23 File & Steel M'f g Co. 233 Ordway )■. Colcord 408, 551 552 Peterson v, Loring 54 Oriental Bank v. Tremont Ins. Co 552 Petitcler v. Willis 486 Osborn v, Osborn 242 541 Pettingill v. Porter 413 Osgood V. Lynn 29, 82 532 Philleps V. Cornell 231 V. Pearsons 430 Phillips V. Flanders 297 V, Thurston 75 509 V. Hoyle 379, 382 Ouimet v. Sirois 57 V. Smith 533 Owen V. Neveau 345 V. Soule Pickering v. Reynolds Pierce v. Adams 383 220 106, 111 P. V. Charter Oak Life Ins. Co. 427, 429 173 Packard, Ex parte 120 V. Gray Packard v. Matthews 108, 109, 144, y. O'Brien 176 315 V, Thompson 230 V. Reynolds 233 234 Pingree v. Hudson River Ins. Co. 178 Page V. Clark 240 Piper II. Willard 248 V. Cole 239 Pitman v. Flint 28 V. Osgood 274 V. Tremont Nail Co. 488 Paine v. Cowdin 364 Piatt V. The Justices 98, 396 V. Farr 191 Pollard V. Baker 189 Palmer v. Kelleher 30 PoUey !•. Lenox Iron Works 161 ii. Sawyer 429 Pomeroy v. Trimper 64,66 Parker v. Lowell 469 Pond V. Kimball 175 V. Moulton 417 Poole V. Dyer 185, 543 V. Niekeraon 529 Porter v. Giles 186 V. Sanborn 430 V. Leach 848 V. Schwartz 555, 570 V. Rummery 105 V. Simonds 69 V. Stevens 53 V. Stone 359 V. Wakefield 50 Parkhurst v. Ketohum 450, 478, 575 V. Warren 166 , 167, 189 Parks 11. Smith 496 Potter V. Cain 54 Parrott v. Dearborn 160 ti. Leeds 253 Parsons v. Dickinson 471 Powell V. Hinsdale 293 V. Merrill 177 V. Howard 424 V. Smith 486 541 V. Turner 853 XXX INDEX TO CASES CITED, Powers V. Manning 555 V. Provident Institution for Savings 367 V. Russell 274 Pratt V. Sanger 451 Pray v. Wasdell 354, 362 Prentiss v. Barnes 408 Presbrey v. Presbrey 70 Prescott V. Kyle 72 Preston v. Neale 440, 446 Price V. Weaver 408 Priest V. Groton 379, 385, 389 Prince v. Clark 542 Pritchard v. Norwood 454 Procter v. Stone 450 Proper v. Cobb 168 Prop'rs Locks & Canals v. Reed 486 Prout V. Root 163 Provident Institution for Savings «. Burnham 268, 269 PuUen ». Haynes 192 Purcell V. Boston, Halifax, && Steamship Line 369 Putnam v. Bixby 191 «. Bond 27, 29, 532 V. Boyer 353 V. Churcliill 104 V. Gushing 167 V. Field 551 V. Hall 545 Putney v. Lapham 472, 491 Q. Quinley v. Atkins 270 Quinn o. Brennan 129 Quinsigamond Bank v. Hobbs 276 R. Band v. Hanson 367, 377 V. Newton 276 V. Wright 469, 654 Rathbone v. Rathbone 490 Rawson v. Doflftier 353 V. Morse 461 Ray V. Wight 319, 320 Raymond v. Butterworth 2, 46, 104, 109 V. Eldredge 423, 555 V. Lowell Rayuer v. Whicher 175 Raynes «. Bennett 57 Read v. Scituate 469 V. Smith 412, 446 Reed v. Anderson 271 V. Home Savings Bank 383 V. Howard 160, 180 V. Neale 175 V. Paul 240 Reed v. Wilson 245 Reeder «. Holcomb 143, 145, 257 Reeve v. Dennett 226, 420 Rehobbth v. Hunt 498 Reid V. Holmes 313 V. Stevens 467 Reynard v. Brecknell 220 Rhodes v. Brooks 327 u. Salem Turnpike and Chel- sea Bridge Corporation 34 Rice V. Nickerson 214 Rich!). Ryder 61,. 539 Richards v. Stephenson 58 V. Storer 185, 543 Richardson v. Buswell 171, 175 V. Crocker 424, 552 V. Lloyd 121 V. Reed 62 V. Smith 145 V. Welcome 2, 540 V. Wolcott 502 Richmond U.Whittlesey 421 Richmond IrOn Works o. Woodruff 504 Ricker v. Gerrish 201, 434 Rigg V. Boston," Revere Beach, &c. R. R. 272 Riley v. Farnsworth 367, 386, 428 V. Hale 120 II. Waiigh 107, 113 V. Williams 507 Ripley v. Warren 37, 500 Robbins v. Fletcher 666 V. Holman 242, 518 Roberts u. Boston 375 V. Knights 30 V. White 244, 454 Robinson v. Austin 426 V. Durfee 363 V. Ensign 161 V. Howard 54, 170 V. Mead 28 V. Sprague 164 V. Trofitter 50, 397, 531 Rodman v. Guilford 459 Rogers v. Abbott 164 V. Hill 122 V. Ladd 224, 258 V. Mayer 237 Rollins V. Marsh 42, 421 V. Townsend 559 Root V. Fellowes 581 Roper V. Lamb 232 Rose V. Taunton 587 Ross V. Bliss 462 Rowley v. Rice 164 Ruggles V. Ives 78, 486 Rundlett v. Weeber 480 Russell V. Paige 235 V. Quinn 286 V. Walker 344 V. Wellington 98 INDEX TO CASES CITED. XXXI Rutland County Nat'l Bank v, Johnson 452 Eyerson v. Abington 277 Sabin v. Cooper 55 Saukett w. Kellogg 63 Safford v. Dudley 59 V. Knight 121, 124, 372 Sanborn v. Chamberlin 482 V. Royoe 168 Sanderson v. Stevens 543 Santom v. Ballard 851 Sargent v. Southgate 206 Saunders v. Robinson 56 Savage v. Birokhead 256 V. Blanchard 194, 487, 624 V. Darling 469 V. Davis 173 V. Stevens 290, 417, 478 Sawyer v. Ryan 436, 568 V. Yale Iron Works 381 Sayles v. Briggs 292, 351 Schendel r. Stevenson 377 Sohermerhom v. Jenkins 488, 498 Sehmidt v. People's Nat. Bank 317 School District in Medfield v. B. H. & E. Railroad 477, 578 Scott V. Hawkins 54 Scoville V. Root 161 Seagrave v. Erickson 193, 451 - ■ - 445 236 373 545 go 76, 509 63 398 293 105 222 ' 256 353 59 384 492 Sears v. Trowbridge Seavey v, Beckler Seecomb v. Provincial Ins. Co. Seeley v. Brown Sennott's Case Sewall V. Sullivan Seward v. Adams Shannon v. Shannon Shattuck V. Woods Shaw V. Blair f. Boland V. McGregory V. Mclntier Sheehan v. Marston Sheffield v. Otis Shelton v. Banks Shepard v. Lawrence 364 Sherburne v. Shepard 78, 193, 486 Sherman v. Davis 163 V. Fall River Iron Works Co. 491 V. Galbraitli 454 Shirley v. Lunenburg 105, 107 Shurtleff v. Hutchins 207 Sibley v. Felton 429 V. Quinsigamond Nat'l Bank 163 Silloway v. Columbia Ins. Co. 34 Silsbee v. Salem 223 Silver v. Jordan 497 Simeon v. Cramm Simmons v. Almy V, Apthorp V. Lawrence Duck Co. V. Woods Simonds v. Parker Simpson v. Dalrymple V. Dix V. McParland Sims's Case Sisson V. New Bedford Sistermans v. Field Skeels v. Chlckering Skillings V. Mass. Benefit' Ass Slade V. Slade Slate V. Ackley Slater v, Rawson Slayton v. Chester Slocomb V. Riley Smith V. Adams V. Bean V. Brown V. Castles V. Dexter V. Dickinson V. Earle V. Flanders. u. Floyd ». Gibbs V. Look V. Meegan V. Milton V. Morrison V. Mutual Life Ins. Co. V. O'Brien V. Paige V. Sherman V. Smith 414, Snell V. Dwight Snelling v. Garfield Snow V. Alley V. Chatfield V. Fitchburg V. Lang V. Paine t). Sheldon V. Union Mut. Marine Ins Snow u. Ware Snowling v. Plummer Granite Somers u. Keliher V. Wright Someiville v. Fiske Soper V. Manning iia Soule V. Russell South Scituate v. Scituate Spaulding v. Knight Spofford u. Loveland Spooner v. Cummings 546 572 122 418 166 488 689 432 61 84 91 409, 446 366 n 116, 289 77 193, 194 374 192 467 156 834 118 214 65, 869 364 267 55, 552 194, 285 173, 174 569 184 442 329 45 116 146 242 568, 583 114, 398 405, 669 227 459, 575 91 460, 463 157 168 . Co. 560 423 Co. 232, 463, 532 58 233 229 120, 127, 220 507 376 218, 228 371 279 xxxu INDEX TO CASES CITED. Spooner v. Gilmore 473 Spragiie v. Waite 455 Springfield v. Hampden 101 0. Sleeper 277 V. Worcester 313 Spurr V. Shelburne 280 Squires v. Amherst 454 Stackpole v. Hunt 384, 490 Staniels v. Raymond 49, 62 Stanwood v. Scovel 410 Stearns v. Dean 163 V. Stearns 2 V. Washburn 562 StefEe V. Old Colony & Newport R. B. 442, 443 Stern v. Filene 615, 522 Sterry w. Foster 307 Stetson w. Exchange Bank 445, 527 V. Woloott 516 Stevens v. Ewer 38 V. Parker 476 V. Perry 49, 169 V. Tuite 67 Stimpson v. Maiden 139 Stockbridge Iron Co. v. Cone Iron Works 308, 448 Stockwell V. Sllloway 319 Stone V. Carter 153 V. Charlestown 20 V. Hodges 49 c. Lothrop 534 V. Wainwright 142, 143 V. White • 409, 446, 508 Stone's Case 335 Stowe V. Heywood 505 Stults V. Newhall 572 V. Silva 459, 557 Strickland v. Fitzgerald 63 Suffolk V. Mill Pond Wharf 308 Suffolk Bank v. Lowell Bank 428,442, 451 Suit V. WoodhuU 456, 464, 465 SuUinss V. Ginn 240 Sullivan v. Fall River 18, 213 V. Fitzgerald 420 tf. Lamb 163, 343 V. Langley 49, 178, 547 Sumner v. Finnegan 28 Swett B. Southworth 465 Sylvester v. Hurley 115 V. Mayo 369 Taber v. New Bedford 91 Taft V. Smith 533 Talbot V. Nat'l Bank of the Com- monwealth 551 Tapley v. Forbes 406 0. Goodsell 313, 433 Tappan v. Bruen Tarbell v. Dickinson V. Gray Tatem i: Adams Taylor v. Collins 144 150, 440, 479 457 292 58 V. Columbian Ins. Co. 178 V. Dexter Engine Co. 554 V. Henry 100 V. Jaques 294 V. N. E. Coal Mining Co. 483 V. Robinson 318 V. Taunton 372, 384 Teague v. Irwin 417 Tebbetts v. Coding 413 V. Pickering 440 Terry o. Brightman 384, 396, 397 ». Sisson 547 Tewksbury v. County Commis- sioners 94, 95 Thayer v. Middlesex Mut. Fire Ins. Co. 271 V. Ray 62 I'. Southwick 48 V. Tyler 64, 141, 144 Thissell v. Page 471 Thomas v. Blake 179, 188 V. O'Sullivan 447 Thompson v. Crocker 27 V. Kenny 539 I'. Lowell Machine Shop 297 Thompson's Case 154 Thornton v. Marginal Freight Rail- way Co. 511 Thwing V. Great Western Ins. Co. 651 Tilden v. Johnson 108, 143 Todd V. Barton 125, 240 V. Bishop 256, 476, 616 Tourtulot V. Tourtelot 498 Tower t. Appleton Bank 556 Towne v. Rice 657 Townsend v. Derby 409 V. Gibbs 518, 522 Townsend Nat'l Bank c. Jones 542 Tracy v. Preble 341 Trask v. Stone 40 Tripp V. Brownell 496 V. Gifford 194 Troeder v. Hyams 874 Trowbridge v. Cushman 169 Troy & Greenfield R. R. v. Com- monwealth 18 True V. Dillon 473 Trull V. Howla'nd 601 Truro v. Atkins 223 Tryon v. Mansir 172 V. Merrill 53, 54 Tucker v. Tucker 317, 556 V. White 185, 417, 543 Tufts V. Newton 106, 112, 378, 379, 393 TuUy V. Fitchburg R. R. 272 Turner v. Langdon 552 INDEX TO CASES CITED. XXXUl Twining v. Foot 341 Warren v. Spencer Water Co. 375 Tyler v. Freeman 61 V. Sullivan 69 V. Waldron 309 V. Wells 207 U. Washburn v. Clarkson 298 V. Miller 568 Upham V. Damon 447 V. Phillips 133 Upton I'. Foster 526 Washington v. Eames 418, 451 V. Winchester 425 Washington Co. Mut. Ins. Co. v. Dawes 233 Wass V. Bartlett 156 V. Wasson v. Bowman 298, 299 Wassum v. Feeney 267 Valentine v. Middlesex E. R. 251 Way V, Butterworth 397 Valier v. Hart . 104 V. Dame 28,45 Van Buren v. Swan 406, 463, 482 Wayland v. Ware 397 Vantine v. Morse 48 Weatherby v. Brown 497, 506, 516 Varian v. N. E. Mut. Accident Webber v. Davis 412,413,444,496, 527 Ass'n 179,197,248 V. Lowell 54 Veasey v. Doton 417 V, Orne 233 VermUyea v. Roberts 547 Webster v. Lowell 57,60 Vermont & Mass. E. R. V. Orcntt 33 Weeks v. Adamson 122, 220 Verry v. Small 461, 464 Wehrle V. Gurney 327 Vinal V. Richardson 428 Welch V. Damon 351 V. SpofEord 364 Weld V. Brooks 374 Vinton v. Bradford 161 Wells V. Connable 426 Vitrified Wheel & Emery Co. v. Wentworth v. Dows 465, 468 Edwards 628, 529 V. Leonard 222 Vogel u. People's Mut. Fire Ins. Wesson v. Commonwealth 18 Co. 483, 561 West V. Brook 293 V. Piatt 365, 547 W. Weston, Ex parte 93, 94 West Roxbury v. Minot 366 Wade V. Mason 61 Wetherbee v. Winchester 616, 621, 622 Wadsworth v. Gay 552 Wheeler v. Goulding 669 Walan v. Kerby 425 V. Lynde 193 Wailcott V. KimbaU 451, 533 V. Raymond 168 Walker v. Cook 48,56 Wheeler & Wilson M'f'g Co. u. V. Dresser 186, 435 Burlingham 354 V. Leightou 207 Whipple V. Rogerson 514 n. Moors 371 Whitcher v. Josslyn 493 V. Swasey 459 Whitcomb's Case 6 Wall V. Provident Institution for White V. Clapp 88 Savings .375, 458 V. Judd 304, 306 Wallace v. Bartlett 173 V. Morse 322 Wallis V. Carpenter 433 V. Springfield Inst, for Sav. 53 Walpole V. Gray 514 Whiteside v. Brawley 374, 420 Wamesit Co. v. Lowell & Andover Whitford w. Knowlton 379 R. R. Co. 373 Whiting V. Aldrich 552 Ward V. Bartlett 471 , V. Cochran V. Cook 364 Wardle v. Briggs 58 511 Ware v. Merchants' Nat'l Bk. 499 V. Nichols 531 Ware River R. R. Co. o. Vibbard 68 V. Withington 606 Warner v. Bacon 408 Whitney v. Rhoades 483, 632 V. Brooks 433, 457 Whiton V. Brodhead 213 V. Howard 353 Whittemore v. Ware 442 V. Perkins 139, 248, 516. Whitwell V. Wells 68 Warren v. Ferdinand 429, 459, 460, Wiggin V. Atkins 191 464, 554 0. Heywood 159, 180 V. Franklin Ins. Co. 317 V. Lewis 317 V. Lord 544 Wight V. Hale 546 XXXIV INDEX TO CASES CITED. Wilbur t'. Eipley V. Taber Wilcox 0. Conway Wildes V. Marshall Willard V. Ward V. Williams Willey V. Durgin Williams v. Blant V. Boardman V. Cheney V. Greene V. Hadley V. Hodge V. Marston v. McCaffigan V. Merritt V. Powell V. Bobinson V. Shillaber V. Williams Williamstown v. Willis Willington v. Stearns Willis V. Crooker Wills V. Noyes Wilmarth v. Bichmond Wilson V. Elliott ti. Hatfield V. Webber Winch V. Hosmer 41, 138 455 566 368, 452 122 481 223, 236, 265 82 48 519, 520, 534 388 484 125 54 70 176 160 2 337 126 462 41 541 61 186, 296 175 329, 412 521 il5. 121, 500 Winchester v. County Comm'rs 499 Windram v. French 443 Wingate v. Commonwealth 412 WinniBimmet Co. v. Grueby 274 Winsted Bank v. Adams 53, 248 Winthrop v. Carlton 303 Withani v. Butterfield 165 Wixon V. Lapham 486 Wolcott w. Mead 64 Wood V. Denny 541, 544 V. Keyes 175 V. Le Baron 490, 581 V. Melius 153 Wood V. Neale 155 V. Payea 9 V. Bobbins 552 V. Boss 40, 82, 150 Woodbury ». Jones 482 Woodman v. Jarvis 485 Woodside «. Eidgway 70,72 Woodward v. Dean 267 V. Leavitt 121 V. Sartwell 159 Woolson «. Boston & Worcester B. B. 309 Worcester & Nashua E. E. Co. v. E. B. Comm'rs 92, 95 Wormouth v. Cramer 566 Worthington v. Houghton 442, 449 V. Scribner 521 V. Waring 499 V. Warren 36, 454 Worthley v. Emerson 570 Wright V. Boston & Maine B. B. Co. 413 V. Coles 24 V. Fotomska Mills 2 V. Quirk 363 Wyeth a. Eiohardson 86 Wyman v. Hichborn 54 Y. Yarrington v. Bobinson 503 York v. Johnson 446, 565 V. Pease 276 Young w. Blaisdell 94 V. Gilles 445, 452, 495, 496 V. Makepeace 267, 285, 305, 306 V. Providence, &c. S. S. Co. 141, 452 Zoller V. Morse 460 PART I. OF PEOCEDUEE IN CIVIL ACTIONS. MASSACHUSETTS PRACTICE. CHAPTER I. COURTS AND VENUE OF ACTIONS. In Massachusetts, the tribunals invested with a common- law jurisdiction are the Supreme Judicial Court, the Superior Court, the District, Police, and Municipal Courts, and courts held by trial justices. Changes have been made from time to time in the judicial system of the Commonwealth by abol- ishing existing courts and erecting in their stead new ones having substantially the same jurisdiction. The tendency, of late years, has been towards establishing an increased num- ber of inferior courts of record with an enlarged jurisdiction. This chapter is intended to treat of the courts as they now exist. THE COURTS AND THEIR JURISDICTION. All judicial oificers are appointed by the Governor, by and with the advice and consent of the Council, and hold their offices during good behavior, except justices of the peace, whose commissions expire at the end of seven years, and are issued for the Commonwealth (Mass. Const. Part II. chap. ii. § 1, art. ix. ; chap. iii. art. i., iii. ; Pub. Sts. c. 155, § 5) ; and Trial Justices, who hold office for the term of three years from the time of their designation as such. Pub. Sts. c. 155, § 7. In actions of contract and tort, the jurisdiction respectively of the Superior and of the inferior courts, so far as it depends upon the amount or value of the thing in question, is deter- mined solely by the ad damnum of the writ, without reference 2 MASSACHUSETTS PRACTICE. to the amount claimed in the declaration or proved at the trial. Ashuelot Bank v. Pearson, 14 Gray, 521 ; Clay v. Bar- low, 123 Mass. 378. So, if the ad damnum in a writ is laid at a sum exceeding one hundred dollars, the Superior Court, having original jurisdiction of the action, has not authority, on its own motion or on the motion of the defendant, to com- pel the plaintiff to amend his writ by reducing the ad dam- num to such an amount as to oust the court of its jurisdiction, although the amount demanded in the declaration is less than one hundred dollars. Wright v. FotomsJca Mills Co., 138 Mass. 328. In actions of replevin the rule is different. See Replevin. When the jurisdiction is concurrent, the court before which proceedings are first had cannot be ousted of its jurisdiction by proceedings in another court in relation to the same subject-matter. Stearns v. Stearns, 16 Mass. 167. If a court has acquired jurisdiction by the fact that a person summoned as trustee has his usual place of business within the territory over which the court has jurisdiction, the subsequent discharge of the trustee will not oust the court of its jurisdiction over the remaining parties. Pub. Sts. c. 183, § 9; Raymond v. Butterworth, 139 Mass. 471. See Trustee Process. A motion to dismiss an action because of interest in the magistrate before whom it was originally brought is in the nature of an exception to his jurisdiction and may be made on appeal at any stage of the case. Richardson v. Welcome, 6 Cush. 331. See Williams v. Robinson, Ibid. 333, and Hall V. Thayer, 105 Mass. 219, where the subject of interest and relationship to the parties, as disqualifications, is discussed. Trial Justices. A limited number of justices of the peace are designated and commissioned by the Governor, with the advice and con- sent of the Council, as trial justices in the several counties ; COURTS AND VENUE OF ACTIONS. 3 and such designation may at any time be revoked. Pub. Sts. c. 155, § 7. A trial justice holds office for the term of three years from the time of his designation, unless during that period he ceases to hold a commission as justice of the peace or the designation and commission is sooner revoked. Ibid. § 9. If he changes his domicil to a place within the district and jurisdiction of a police, district, or municipal court, his authority to act as trial justice thereupon ceases and another may be appointed in his place. Ibid. § 11. No justice of the peace not designated and commissioned as a trial justice has jurisdiction to try civil cases. Ibid. § 6. Trial justices may severally hold courts within the counties for which they are appointed, but the jurisdiction of a district or police court excludes that of trial justices. St. 1893, c. 396, § 13. Trial justices have original jurisdiction, exclusive of the Superior Court, of 1. All actions of replevin for beasts distrained or im- pounded 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 ; 2. Summary process to recover land under Pub. Sts. c. 175. 3. All actions of contract, tort, or replevin, where the debt or damages demanded or value of the property alleged to be detained does not exceed one hundred dollars. Pub. Sts. c. 155, § 12. They have original and concurrent jurisdiction with the Superior Court of actions of contract, tort, or re- plevin, 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. Ibid. § 13. Trial justices may issue writs of scire facias against exec- utors and administrators upon a suggestion of waste after judgment against them, against the bail taken in a civil action before themselves, and against a person summoned as trustee in an action before themselves, and proceed to judg- ment and execution for the whole sum due, with the costs of 4 MASSACHUSETTS PRACTICE. the new suit, in the same manner as the Superior Court might do in like cases, without reference to the amount of the debt and costs on the original Judgment. Pub. Sts. c. 155, §§ 14, 16 ; c. 183, § 50. No original writ issued by a trial justice is to be made returnable more than sixty days from the date thereof, St. 1892, c. 148; and a trustee writ issued by such justice cannot be made returnable more than thirty days from its date. St. 1887, c. 33. A writ issued by a trial justice cannot be made to run into any other county than that in which it is returnable, except in the following cases : — 1. Such writs may be directed to the proper officers in any county for the purpose of causing an attachment of property therein, but the cost of service that may be taxed against the defendant is limited to one dollar and fifty cents. Pub. Sts. c. 155, §§ 17, 18 ; Gahoon v. Harlow, 7 Allen, 151. 2. A second exception occurs when summary process is brought for the recovery of land under Pub. Sts. c. 175, which provides (§ 3) that such action shall be brought in the county where the premises are situated. 3. When a person is summoned as trustee who is liable to be charged as such and the defendant resides in this Com- monwealth, but in a county other than that in which the writ is returnable, the writ may run into any county for service on the' defendant. Pub. Sts. c. 183, § 5. Actions before trial justices may be heard and determined at their dwelling-houses, or any other convenient and suitable places ; and writs and processes may be made returnable ac- cordingly, but not earlier than nine o'clock in the forenoon, nor later than five o'clock in the afternoon. Pub. Sts. c. 155, § 20. The writ should name an hour in the day for holding the court, and must be returned and entered within the period of one hour from the time specified or the proceeding falls to the ground. If the writ is not entered within that time, the COURTS AND VENUE OE ACTIONS. 5 defendant may refuse to appear, or he may appear specially, have the action dismissed on motion, and obtain judgment for his costs. Ibid. § 23 ; Blanchard v. Walker, 4 Gush. 455. See Hendrick v. Whittemore, 105 Mass. 23. If a trial justice fails to attend at the time and place to which a civil process is returnable or continued before him, any other trial justice for the same county or a justice of the peace may attend, and continue the process not exceeding thirty days without costs, and saving the rights of all parties ; and he is required to make a certificate of his doings, to be filed with the papers in the case and entered upon the record by the justice before whom the process was returnable. Pub. Sts. c. 155, § 21. When the trial justice before whom it is brought dies pend- ing the action, any other trial justice in the same county may, upon the application of any of the parties, cause the papers in the case to be brought and entered before him, and there- upon take jurisdiction of it, first causing proper notice to be served upon the other parties. So if a trial justice dies while a judgment rendered by him remains unsatisfied, any other jus- tice in the same county may cause the record of the judgment to be brought before him and transcribe the same upon his records, delivering the original to the judgment creditor ; and he may issue execution on such judgment as if it had been rendered by himself. Pub. Sts. c. 155, §§ 38-42. Whenever the commission of a trial justice expires without renewal, or is terminated by resignation, change of domicil or revocation, such justice is authorized to finish any business begun or pending before him, and to certify copies of his records and papers ; or any party in any civil action begun or pending before such trial justice may enter or transfer such action for proceedings before any other trial justice for the same county, in the manner provided in the case of the death of a trial justice before whom a civil action has begun or is pending. St. 1890, c. 202. b MASSACHUSETTS PRACTICE. Trial justices may issue all writs, warrants, and processes necessary or proper to carry into effect the powers granted to them ; and when no form is prescribed therefor by statute, it is their duty to frame one in conformity with the principles of law and the usual course of proceedings in the courts of this State. Pub. Sts. c. 155, § 67 ; Dunham v. Burlingame, 2 Met. 271. They may punish such disorderly conduct as interrupts any judicial proceedings before them or is a contempt of their authority or persons by fine not exceeding ten dollars, or by imprisonment in any jail in the Commonwealth for a term not exceeding fifteen days. Pub. Sts. c. 165, § 68 ; St. 1886, c. 224. See Whitcomb's Case, 120 Mass. 118, 120, and cases cited ; Kerrigan's Case, 158 Mass. 220. They are required to keep a record of all their judicial pro- ceedings, may issue commissions to take depositions in cases pending before them, and may adjourn their courts in civil cases on trial before them to any other time or place as occa- sion may require. Pub. Sts. c. 155, ,§§ 69-71. District and Police Courts. The district and police courts have original jurisdiction within the counties in which they are held, exclusive of the Superior Court : (1) Of all actions of replevin for beasts dis- trained or impounded in order to recover a penalty or for- feiture supposed to have been incurred by their going at large, or to obtain satisfaction for damages alleged to have been done by them; (2) of summary process to recover land under c. 175 of the Public Statutes ; and (3) of all actions of contract, tort or replevin, where the debt or damages de- manded or the value of the property alleged to be detained does not exceed one hundred dollars. Said courts have original and concurrent jurisdiction with the Superior Court (1) of actions of tort, contract or replevin where the debt or damages demanded, or the value of the COURTS AND VENUE OF ACTIONS. 7 property alleged to be detained is more than one hundred and does not exceed one thousand dollars ; and (2) of actions to enforce liens under c. 192 of the Public Statutes, where the amount of the claim do.es not exceed one thousand dol- lars. St. 1893, c. 396, § 12. Civil actions in the district and police courts are to be brought in the court in the district of which some one of the parties lives or has his usual place of business ; provided that actions of summary process to recover land under Pub. Sts. c. 175 are to be brought in the court in the district of which the premises in controversy are situated. The jurisdiction of these courts excludes that of trial justices. The jurisdiction does not extend to transitory and personal actions unless some one of the defendants, or in trustee process all the persons named in the writ as trustees, live or have their usual place of business in the county in which the action is brought. St. 1893, c. 396, § 13. See Aspinwall v. Cushman, 11 Allen, 405. The original writ in these courts is a summons or a capias and attachment, the forms of which are to be regulated as provided by Pub. Sts. c. 161. Such writs are to be returned not more than sixty days from the date thereof, and may run throughout the county in which the court issuing the writ is held, and into any other county for the purpose of attaching property therein, or for service on a defendant residing in another county when a person dwelling or having his usual place of business in the county in which the court is held, is summoned as trustee, and for service on a defendant in an action of forcible entry and detainer. Such writs may be directed to and served by any officer qualified to serve civil process, and such service, if made in another county, must be made fourteen days at least before the return day. St. 1893, c. 396, § 17. Original writs issued by district and police courts may, except in trustee process, be made returnable to any district or police court in the Commonwealth. Ibid. a MASSACHUSETTS PRACTICE. Executions issued by such courts may be served and are to be obeyed in every county to which they are directed. Ibid. These courts may issue writs of scire facias against execu- tors and administrators upon a suggestion of waste, after a judgment against them, or against bail taken before them in a civil action, and proceed to judgment and execution thereon in the same manner as the Superior Court might do. St. 1893, c. 396, § 14. Such writs are to be served not less than seven days before the return day, which must be not more than sixty days from the date of the writ, and may run into any county in which the defendant may be found. Ibid. § 15. In such suits, it is not a bar that the debt and costs on the original judgment together exceed one thousand dollars ; and judgment and execution may be awarded for the whole sum due the plaintiff with the costs of the new suit. Ibid. § 16. As to service in actions brought against absent defendants in the district and police courts, see St. 1893, c. 396, § 18, and Absent Defendants. The defendant is required to file an answer in all civil actions brought in these courts. St. 1893, c. 396, § 23. As to appeals from the judgments of district and police courts, see St. 1893, c. 396, §§ 25-32, and Appeals. Saturday of each week is made the return day for writs, processes, notices to appear and citations in all civil actions and proceedings in the district and police courts, but the court may make notices and citations returnable at other times. St. 1893, c. 396, § 22. As to the review of the judgments of these courts, see St. 1893, c. 396, § 33, and Review. Said courts are held in the court-houses or other places pro- vided therefor by the county. Tliey are always open, and there are no terms thereof. The word term or terms when applied to said courts in any statute means sitting or sittings. Any business of said courts or justices may be transacted at any time, but not on Sunday unless the court or justice shall deem COURTS AND VENUE OF ACTIONS. 9 the same to be of pressing necessity. Sittings of the courts are to be held at the times and places appointed by the laws in force for holding said courts, and if the times are not fixed by law then the court must fix by general rule such times for such sittings as it deems to be necessary, and the same may be adjourned from time to time as occasion requires, and actions may be continued to any future day fixed for the sitting of the court. Ibid. § 54. It was held that a district court, which, in accordance with the provisions of Pub. Sts. c. 54, § 23, and a general rule established by the justice, held weekly terms, had no authority, on motion, at one of said terms, to vacate a final judgment entered at a preceding term. Wood v. Payea, 138 Mass. 61. These courts are to be held by the respective justices thereof: 'provided, that upon request of the justice either special justice may hold the court and perform the duties of the justice, or hold a second or third session thereof, and two or more sessions may be held at the same time. In case of a vacancy in the office of justice, and in case of his sickness, absence or other disability, and when no request has been made as aforesaid, the special justice holding the oldest com- mission shall have the powers and perform the duties of the justice. When a special justice holds the court or a session thereof, that fact and the fact which gave him jurisdiction so to do is to be entered upon the general records of the court, but they need not be stated in the record of the case heard by him. Ibid. § 55. When no justice or special justice is present at the time and place appointed for holding a session of such court, the sheriff or any of his deputies, or the clerk of such court, may adjourn the same from day to day, or from time to time, giving such notice thereof as circumstances may require. Ibid. § 56. Said courts and the justices thereof have all the powers necessary for the discharge of their duties. They may issue all writs, warrants, and processes necessary or proper to carry 10 MASSACHUSETTS PRACTICE. into effect the powers granted to them, and when no form is prescribed therefor by statute, they shall frame one in con- formity with the principles of law and the usual course of proceedings in the courts of this State. Ibid. § 57. A special justice of a district court may take a recogniz- ance from a person arrested on execution at a time when the court is not in session. Dike v. Story, 7 Allen, 349 ; GHhls v. Taylor, 143 Mass. 187. See Pub. Sts. c. 162, §§ 27, 28. Each of said courts has a seal, which is in the custody of its clerk, or of the justice, when no clerk is appointed, which is to be afi&xed to all processes issued by said courts where a seal is required. Ibid. § 58. The justices, or a majority of them, of the several district and police courts may, from time to time, make and promul- gate uniform rules regulating the time during which writs, processes and appearances shall be entered, answers filed, and when trials shall be had, in civil actions in said courts, and the practice and manner of conducting the business of said courts in cases not expressly provided for by law. They are required, as soon as may be after making and adopting such rules, to submit a copy thereof to the Superior Court or a justice thereof, for approval and amendment or alteration. Ibid. § 59. At a meeting of the justices of the several district and police courts, held at Boston, on the 20th of September, 1893, Rules were established for the practice and manner of conduct- ing the business of said courts, the same to take effect December 1, 1893 ; and said Rules were approved by the Superior Court, October 25, 1893. Rule XXIII. of the Rules thus adopted provides that each court may make rules for the conducting of its business, in addition to and not inconsistent with the general Rules. Among the matters and things left to be settled by special rules, are the days for trials in the respective courts; the days for the entry of judgments ; the penal sum in appeal COURTS AND VENUE OF ACTIONS. 11 bonds ; the place at which writs shall be made returnable, and the days on which court shall be holden in different places, when the court is required to be holden in different places, and the statute does not specify the days on which the court shall sit at such places. Processes issuing from courts having a clerk are to be under the seal of the court, signed by the clerk or an assistant clerk, and are to bear test of the justice, except that if the justice is a party thereto, or his office is vacant, then the test is to be of the special justice holding the oldest commission. Ibid. § 64. The justices or special justices may punish such disorderly conduct as interrupts any judicial proceeding before them or is a contempt of their authority or persons, by fine not exceed- ing fifty dollars or by imprisonment in the common jail of their county not exceeding fifteen days. Ibid. § 61. These courts have like authority with the Superior Court to issue commissions to take depositions in cases pending before them. Ibid. § 65. Following is a list of the District Courts as now existing : FiKST, OF Barnstable. — Boukne, every Saturday ; BariSstable, at such time as the justice may by special rule appoint ; for Barnstable, Yarmouth, Sandwich, Bourne, Falmouth, and Mashpee. Second, of Barnstable. — Harwich, every Friday ; Province- town, at such time as the justice may by special rule appoint; for Provincetown, Truro, Wellfleet, Eastham, Orleans, Brewster, Chatham, Harwich, and Dennis. Of Central Berkshire. — Pittsfield : for Hancock, Lanes- horough, Peru, Windsor, Hinsdale, DaUon,, Washington, Pittsfield, and Richmond. Op Northern Berkshire. — South Adams : 1st Wednesday ; North Adams, every Tuesday ; Adams, 1st and 3d "Wednesdays, for Adams, North Adams, GlarTcshurg, Savoy, Florida, and Cheshire. Of Southern Berkshire. — Great Barrington : for Sheffield, Great Barrington, Egremont, Alford, Mount Washington, Mon- terey, and New Marlborough. 12 MASSACHUSETTS PRACTICE. FiEST, OF Bristol. — Tadnton and Attleboeough : for Taunton, Behoboth, Berkley, Dighton, Seekonk, Attleborough, Norton, Mans- field, Easton, and Baynham. Second, of Bristol. — Fall River : for Fall Biver, Freetown, Somerset, Swansea, and Westport. Third, of Bristol. — New Bedford : for iVew Bedford, Fair- haven, Acushnet, Dartmouth, Freetown, and Westport} First, of Essex. — Salem : for Salem, Beverly, Danvers, Ham- ilton, Middleton, Topsfield, and Wenham. Second, of Essex. — Amesbury : for Amesbury and Merrimac. Of Eastern Hampden. — Palmer : for Palmer, Brimfi^ld, Monson, Holland, and Wales. Of Western Hampden. — Chester, 2d Wednesday of each month, and at such other times as the justice may by general rule determine, and at all other times required by law, or by such special rule, at Westfield : for WestfiAd, Chester, Granville, Southwick, Bussell, Blandford, Tolland, and Montgomery. Of Hampshire. — Northampton : Monday and Tuesday ; Am- herst : 1st and 3d Wednesdays ; Cummington : 2d Wednesday ; Belchertown : 1st and 3d Thursdays ; Huntington : 2d and 4th Thursdays ; Ware : Friday of each week ; Easthampton : 2d and 4th Saturdays. The judicial district comprises all the towns in the county. Of Central Middlesex. — Concord : for Acton, Bedford, Carlisle, Concord, Lincoln, Maynard, Stow, and Lexington. Of Northern Middlesex. — Atbr: torAyer, Groton, Pepperell, Townsend, Ashby, Shirley, Westford, Littleton, and Boxborough. First, of Eastern Middlesex. — Malden : for Wilmington, North Beading, Beading, Stoneham, Wakefield; Melrose, Maiden, Everett, and Medford. Second, of Eastern Middlesex. — Waltham: for Watertown, Weston, and Waltham. Third, of Eastern Middlesex. — Cambridge : for Cambridge, Arlington, and Belmont. Fourth, of Eastern Middlesex. — Woburn : for Stoneham, Wilmington, Woburn, Winchester, and Burlington. First, of Southern Middlesex. — South Framingham : for Ash- land, Framingham, Holliston, Sherborn, Sudbury, and Wayland. 1 The Second and Third District Courts of Bristol have concurrent jurisdiction in Westport and Freetown. Pub. Sts, c. 154, § 2. COURTS AND VENUE OF ACTIONS. 13 Op East Nokfolk. — Quinct : for Randolph, Braintree, Cohas- set, Weymouth, Quincy, HolhrooTe, and Milton. Op Southern Norfolk. — Stoughton and Canton : for Stoughton, Canton, Avon, and Sharon. Second, of Plymouth. — Abington: Monday, Wednesday, Thursday, and Saturday; Hingham: Tuesday and Friday, for Abington, South Abington, Bockland, Hingham, Hull, Hanover, Scituate, South Scituate, and Hanson. Thikd, of Plymouth. — Plymouth : for Plymouth, Kingston, Plympton, Pembroke, Duxbury, and Marshfleld. Fourth, of Plymouth. — Middlbborough : 1st and 3d Tues- days ; Wareham : 2d and 4th Thursdays ; for Middlehorough, Wareham, Lakeville, Marion, Mattapoisett, and Rochester. Central, OF Worcester. — Worcester: for Worcester, Mill- bury, Sutton, Auburn, Leicester, Paxton, West Boylston, JBoylston, Holden, and Shrewsbury. First, op Northern Worcester. — Mondays, Wednesdays, and Fridays at Gardner ; Tuesdays, Thursdays, and Saturdays at Athol : for Athol, Petersham, Phillipston, Royalston, Templeton, Gardner, and Hubbardston. First, op Eastern Worcester. — Westborough : Every Mon- day ; Grafton : Every Tuesday, for Northborough, South- borough, Westborough, and Grafton. Second, of Eastern Worcester. — Clinton : for Clinton, Berlin, Bolton, Harvard, Lancaster, and Sterling. First, of Southern Worcester. — Southbridge : Every Mon- day ; Webster : Every Tuesday ; for Sturbridge, ' Southbridge, Charlton, Dudley, Oxford, and Webster. Second, of Southern Worcester. — -Blackstone : Every Mon- day; Uxbridge: Every Saturday; for Blackstone, Uxbridge, Douglas, and Northbridge. Third, op Southern Worcester. — Milford : for Milford, Mendon, and Upton. East Boston District Court : for Wards One and Two op the City op Boston, and the town of Winthrop. Following is a list of the Police Courts : Brockton : for Brockton, Bridgewafer, and West Bridgewater. Brookline. Chelsea : for Chelsea and Revere. Chicopee. 14 MASSACHUSETTS PRACTICE. FiTCHBTJKG. Gloucester. Haverhill : for Haverhill, Bradford, and Groveland, HOLTOKE. Lawrence. Lee. Lowell. Lynn. Marlborough. Newburyport : for Newburyport and Newbury. Newton. Somerville. Springfield : foT Springfield^ Agawam, Longmeadow, Hampden, West Springfield, and Wilbraham. WiLLIAMSTOWN. Note. Following is a schedule of the places in which sessions of the several district and police courts of the Commonwealth are held for the trial of civil actions, and of the days on which said trials are held, as fixed by the special rules of the several courts, December 1, 1893. Name of Court. First Dist., Barnstable . Second Dist., Barnstable Dist., Central Berkshire . Dist., Northern Berkshire Dist., Southern Berkshire Police Court, Lee . . . . Police Court, Williamstown First Dist., Bristol. . Second Dist., Bristol . Third Dist., Bristol . First Dist, Essex . . Second Dist., Essex . Police Court, Gloucester Police Court, Haverhill Police Court, Lawrence Police Court, Lynn Police Court, Newburjrport Dist., Western Hampden Dist., Eastern Hampden . Police Court, Springfield Police Court, Holyoke . Police Court, Chicopee . Where held, f Bourne . . . ' \ Barnstable {Harwich . . ProTincetown . Pittsfield . . North Adams . Great Harrington . Lee . . . , Williamstown . Taunton . Fall River . . New Bedford . Salem . . . Amesbury . Gloucester . Haverhill . , Lawrence . . Lynn . . . Newburyport . Westfleld . . Palmer . . . Springfield' Holyoke . . Chicopee . Trial Days. Every Saturday, 9 a. m. Every Monday, 9 A. m. Every Friday, 9 a. m. Every Thursday, 1 v. m. Every Saturday, 10 A. M. Every Saturday, 9 A. u. Every Saturday, 10 a. m. Every Friday, 9 a. m. Every Saturday, 9 a. u. Every Monday, 10 a. m. Every Monday, 10 a. m. Every Monday and Thursday, 10 a. u. Every Wednesday, 10 A. m. 2d and 4th Wed'sday, each mo. , 9 A. u. Every Saturday, 10 a. m. 1st and 3d Wed'sday, each mo., 9 a. m. 2d and 4th Tuesday, each mo., 10 A. u. Every Saturday, 10 A. M. 1st and 3d Wed'sday each mo., 10 A. n. Every Saturday, 9 A. m. Every Saturday, 10 a. h. Every Saturday, 10 A. m. Every Saturday, 9 a. m. Every Saturday, 10 a. «. Dist, Hampshire First Dist., Eastern Middlesex . Second Diet., Eastern Middlesex . {As regulated by stat- As regulated by statute and special ute and special rules. rules. Maiden Every Monday, 9 a. u. Waltham .... Every Saturday, 9.30 a. m. COUETS AND VENUE OF ACTIONS. 15 Name of Court. Where held. Third Dlst,, Eastern Middleeex . Oambridge Fourth Dlst., Eastern Middlesex . Woburn . , First Dist. , Southern Middlesex , S. Framingham First Dist., Northern Middlesex . Ayer . . . . Diat., Central Middlesex . . . Concord . . Police Court, lK>well Lowell . . . Police Court, Somerville .... SomerTille . . Police Court, Newton West Newton Police Court, Marlborough . . . Marlborough . Dist., East Norfolk . . Dist., Southern Norfolk . Police Court, Brookline . Second Dist., Plymouth . Third Dist., Plymouth . Fourth Dist., Plymouth . Police Court, Brockton . East Boston Dist. . . . Police Court, Chelsea . . Central Dist., Worcester First Dist., Northern Worcester . First Dist., Soutliem Worcester . Second Dist., Southern Worcester Third Dist., Southern Worcester . First Diet., Eastern Worcester . Second Dist., Eastern Worcester . Police Court, Fitchburg .... . Quincy . . . Stoughton , . Brookline . Abingtonand . Plymouth . . Middleborough . Brockton . . , East Boston . . Chelsea . . Worcester . . ( Gardner . . lAthol . . . i Webster . , I Southbridge . TJxbridge . . Milford . ( Westborough . I Grafton . . Clinton . . . Fitchburg . . Trial Days. Every Thursday, 10 a. m. Every Saturday, 9 a. m. Every Monday, 9.30 A. m. Last Saturday, each mo., 9 a. u. Ist and 3d Wed'sday, each mo., 9 a. m. Every Wednesday, 11 a. h. Every Saturday, 9 a. m. Every Tuesday, 9 a. m. Every Saturday, 9 a. m. Every Tuesday, 9 A. m. Every Tuesday, 8.30 A. m. Every Tuesday, 8.30 a. m. Hingham Daily, 9 a. m. Every Saturday, 10 A. m. Every Saturday, 9 a. a. Every Saturday, 9 a. m. Every Monday, 9 A. m. Every Tuesday, 10 A. m. Every Saturday, 9.30 A. m. lat and 3d Wed'sday, each mo., 9. a m, 2d and 4th Thursday, each mo. , 10 a. m. Every Saturday, 9.30 A. m. Every Monday, 9.30 a. m. Every Saturday, 10 A. m. Every Saturday, 9 a. m. Every Monday, 9 a. m. Every Tuesday, 9 a. m. 2d and 4th Saturday, each mo., 9 A. m. Every Thursday, 10 A. m. Municipal Courts. The municipal courts in the city of Boston and their re- spective .districts are as follows (Pub. Sts. c. 154, § 42 ; St. 1886,0.15): — The Municipal Court Of the City of Boston. -— Wards 6, 7, 8, 9, 10, 11, 12, 16, 17, and 18. ' Of the Chahlestown District. — Wards 3, 4, and 5. Of the South Boston District. — Wards 13, 14, and 15. Of the Hoxbury District. — Wards 19, 20, 21, and 22. Of the Brighton District. — Ward 25. Of the West Koxburt District. — Ward 23, Of the Dorchester District. - — Ward 24. The municipal courts in Boston have concurrent jurisdiction in civil matters over all waters, islands, and places not included in the district of any one of those courts, or of the Police 16 MASSACHUSETTS PRACTICE. Court of Chelsea, and within the jurisdiction of the Superior Court for the county of Suffolk. Pub. Sts. c. 154, § 44. Each of these courts respectively has exclusive original jurisdiction of all actions under Pub. Sts. c. 175, which pro- vides summary process for the recovery of land, whenever the premises in controversy are situated within its district. Ibid. § 46. Their writs and processes may run into any county for the purpose of attaching property, of service on a defendant or trustee, of summoning witnesses, of levying execution, and for all purposes incident to their jurisdiction. Ibid. § 47. But they have no jurisdiction of transitory actions, unless some one of the defendants, or in trustee process some one of the trustees, lives or has his usual place of business in Suffolk County. Ibid. § 49. Transitory actions brought in these courts (except the Municipal Court of the City of Boston, see below), must be brought in the district where some one of the parties lives or has his usual place of business ; except that, if suit is begun by trustee process, and all the persons named in the writ as trustees dwell or have usual places of business in one district, the writ must be made returnable in that district ; otherwise it may be made returnable in any district in which either of them dwells or has his usual place of business, without regard to the domicil of the other parties. Ibid. § 48. All the provisions of Pub. Sts. 154 " relating to police and district courts, their justices and clerks, and the rights, duties, and liabilities of parties to proceedings therein, shall, as far as applicable, apply to municipal courts, their justices and clerks, and the parties to proceedings therein, except as hereinafter otherwise provided." Pub. Sts. c. 154, § 43. Municipal Court of the City of Boston. The Municipal Court of the City of Boston has original concurrent jurisdiction with the Superior Court of all civil COURTS AND VENUE OF ACTIONS. 17 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. Pub. Sts. c. 154, § 59. When the plaintiff resides or has his usual place of business within the county of Suffolk, or resides out of the Common- wealth, the civil jurisdiction of this court includes personal actions wherein the defendant is not an inhabitant of the State, if personal service of the writ or an effectual attach- ment of property is made within the county of Suffolk. Ibid. §60. The practical application of the above statutes to suits brought in this court results in the following rule : If the ad damnum does not exceed one hundred dollars, the defendant should be described in the writ as " of said Boston, within the district of said court," or " having his usual place of business in said Boston, within the district of said court," according to the fact. But if the ad damnum exceeds one hundred dollars, no allegation concerning the district is necessary. The Superior Court. The Superior Court consists of a chief justice and fifteen associate justices, and is a court of general jurisdiction throughout the State. St. 1892, c. 271. Its sessions may be held by one or more of the justices, exercising all the power and jurisdiction of the court, except in passing upon claims against the Commonwealth exceeding one thousand dollars, in which latter cases the trial must be had before three jus- tices. Pub. Sts. c. 152, § 2 ; c. 195, § 3. It has exclusive original jurisdiction of complaints for flow- ing lands, of claims against the Commonwealth whether at law or in equity, except those mentioned in Pub. Sts. c. 195, 18 MASSACHUSETTS PKACTICE. § 7 (St. 1887, c. 246),^ of actions of tort except those of which the district, police, or municipal courts, or trial justices have concurrent original jurisdiction (Pub. Sts. c. 152,. § 3), and of suits to enforce liens upon buildings and land, when the amount of the claim exceeds three hundred dollars. Ibid, c. 191, §§ 10, 11. As to actions of tort to recorer damages for injuries occasioned by defective ways or bridges, see Pub. Sts. c. 52, § 19 ; Sullivan v. Fall Biver, 125 Mass. 568. It has original jurisdiction of all civil actions except those of which the Supreme Judicial Court, district, police, or muni- cipal courts, or trial justices, have exclusive original jurisdic- tion. Pub. Sts. c. 152, § 3. It has exclusive and original jurisdiction of all causes of divorce and nullity or validity of marriage, and in such pro- ceedings has all powers as to alimony, the custody of children, or otherwise, which the Supreme Judicial Court formerly exer- cised. St. 1887, c. 382, § 1. It has original jurisdiction of petitions for partition, of writs of entry for the foreclosure of mortgages, and of other real actions. St. 1892, c. 169. It has original and concurrent jurisdiction with the Supreme Judicial Court of all civil actions, except actions of tort, in 1 Since it is a fundamental principle of our jurisprudence that the Com- monwealth cannot be impleaded in its own courts, except by its own consent (Troy Sf Greenfield R R.v. Commonwealth, 127 Mass. 43, 46) it was held that the jurisdiction given to the Superior Court by Pub. Sts. c. 195, § 1, "of all claims against the Commonwealth which are founded on contract for the payment of money," does not extend to a claim for damages for the breach of a contract. Wesson v. Commonwealth, 144: Mass. 66. So it was held that the jurisdiction did not extend to the obligation imposed upon the Commonwealth by Pub. Sts. c. 86, § 26, to reimburse the expense incurred by a town in the support of a State paupe^•. Milford V. Commonwealth, 144 Mass. 64. And it is held that the juris- diction given to the Superior Court by St. 1887, c. 246, of " all claims against the Commonwealth, whether at law or in equity," does not extend to a claim for damages resulting from the misfeasance or negligence of the officers or agents of the Commonwealth in performing their duty. Murdoch Parlor Chrate Co. v. Commonwealth, 152 Mass. 28. COURTS AND VENUE OF ACTIONS. 19 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 other county. Pub. Sts. c. 152, § 4. It has original and concurrent jurisdiction with district, police, and municipal courts, and trial justices, where the sum demanded or the value of the property claimed exceeds one hundred dollars, in cases where such courts and justices have jurisdiction, except actions of replevin of beasts distrained for the recovery of any penalty or forfeiture, or to obtain satis- faction for damages. Ibid. The jurisdiction of the Superior Court also includes all cases legally brought before it by appeal or otherwise from trial justices, district, police, or municipal courts, or courts of insolvency, and frOm the decisions of commissioners on in- solvent estates of deceased persons.^ (Pub. Sts. c. 152, § 5,) and of certain appeals from the probate courts. St. 1887, c. 332, §3; 1890, c. 261. 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. St. 1883, c. 223, § 1. See, also, St. 1884, cc. 304, 316; St. 1885, c. 384; St. 1887, cc. 246, 332, 380, 383; St. 1890, cc. 154, 374; St. 1891, cc. 227, 862, 383; St. 1892, cc. 435, 440. It has exclusive jurisdiction, in Boston, of petitions for a jury to assess damages in highway cases, and elsewhere con- 1 In bastardy proceedings the Superior Court exercises an original, and not an appellate, jurisdiction. The magistrate or inferior court issuing the warrant can proceed no further than to require the respondent to give security for his appearance at the Superior Court. Biggane v. Ross, 126 Mass. 233. 20 MASSACHUSETTS PKACTICB. current jurisdiction with the county commissioners. Pub. Sts. c. 49, §§ 79, 86, 105. See Stone v. Charlestown, 114 Mass. 214, 225. Actions at law in the Superior Court may be heard and determined by and before three justices thereof, without a jury, on agreement of the parties, when the property de- manded or the property claimed exceed in amount or value ten thousand dollars if the action is brought in the county of Suffolk, and five thousand dollars if brought in any other county, if the plaintiff, or some one in his behalf, makes oath or affirmation before some justice of the peace that he verily believes that the matter sought to be recovered actually equals in amount or value said sums respectively, a certificate of which oath or affirmation must be filed in said court with or subsequent to the agreement of reference. In such trials, a majority of the sitting justices are to decide all questions of law and fact ; but a majority of such justices may report the case to the Supreme Judicial Court. St. 1891, c. 227. The Superior Court has concurrent jurisdiction with the Supreme Judicial Court in all matters as to which jurisdiction is given to the latter court by Pub. Sts. c. 27, § 48, relating to telegraph and telephone wires ; by § 129, of the same chapter, relating to abuse by towns of corporate powers; Pub. Sts. c. 104, § 12, relating to the construction, alteration, main- tenance and use of buildings ; and by Pub. Sts. c. 113, § 63, relating to the control of street railway companies. St. 1891, c. 293. See Supreme Judicial Court, infra. No action can be originally brought in this court wherein the debt or damages demanded do not exceed one hundred dollars. Pub. Sts. c. 152, § 9. See 138 Mass. 328. Sittings. The Sittings of the Superior Court for the several counties are as follows (See Pub. Sts. c. 152, § 17 and subsequent stat- utes cited infra.) COURTS AND VENUE OF ACTIONS. 21 Barnstable. — At Barnstable, Tuesday next after the 2d Mon- day of April, and on 2d Tuesday of October. (St. 1891, c. 175.) Bbkkshire. — At Pittsfleld, for civil business, 4th Mondays of February, June, and October ; for criminal business, 2d Mondays of January and July. Bristol. — At Taunton,^ 1st Monday of March and 2d Monday of September ; at New Bedford, 1st Mondays respectively of May and December, but anj' established term may be adjourned to Fall River ; for criminal business, at Taunton 1st Monday of Feb- ruary and 1st Monday of November, and at New Bedford 1st Monday in June. Either of these sittings may be adjourned to Fall River. (Pub. Sts. c. 152, § 18 ; St. 1888, c. 314 ; St. 1891, c. 287, § 1.) Dukes County. — At Edgartown, last Tuesdays respectively of April and September. (St. 1889, c. 308.) Essex. — For civil business, at Salem, 1st Mondays respectively of June and December; at Lawrence, 1st Monday of March; at Newburyport, 1st Monday of September. For criminal business, at /Salem, 4th Monday of January ; at Newburyport, 1st Monday of May ; at Lawrence, 1st Monday of October. The September sitting, civil, is to be held at Newburyport, and by adjournment at Lawrence and Haverhill. All cases are to be tried at Newbury- port unless the parties otherwise agree or the court otherwise orders. When the cases for trial at Newburyport have been dis- posed of, the sitting is to be adjourned to Lawrence, and shall there continue until the Saturday preceding the first Monday of October, unless the Lawrence list shall have been previously dis- posed of, when, in either case, it shall be adjourned to Haverhill. (St. 1885, e. 191 ; St. 1889, c. 461.) Franklin. — 3d Monday of April and 2d Mondays respec- tively of July and November. (St. 1889, c. 327.) Hampden. — At Springfield, for civil business, 2d Mondays respectively of March and June, and the 4th Monday of October. For criminal business, at Springfield, 1st Monday of May, 4th Monday of September, and 3d Monday of December. (St. 1885, c. 27.) Hampshire. — At Northampton, for civil business, 3d Monday of February," 1st Monday of June, and 3d Monday of October. For criminal business, 2d Monday of June and 3d Monday of December. 22 MASSACHUSETTS PRACTICE. Middlesex. — For dvil business, at Lowell, 2d Monday of March and 2d Monday of September ; at Cambridge, 1st Monday of June and 2d Monday of December. For criminal business, at Cambridge, 2d Monday of February and 1st Monday of June ; at Lowell, 3d Monday of October. (St. 1893, c. 391.) Nantucket. — At Nantucket, 1st Tuesdays respectively of July and October. Norfolk. — At Dedham, for dvil business, 1st Mondays re- spectively of January, May, and October. For criminal business, 1st Mondays of April, September, and December. (St. 1889, c. 287.) Plymouth. — At Plymouth, 2d Mondays respectively of Febru- ary and June, and 4th Monday of October. The justices holding the respective sittings may adjourn the same to Brockton, and such adjournment shall have the same effect as an adjournment from one shire town to another. (St. 1885, c. 134.) Suffolk. — At Boston, for civil business, 1st Mondays respec- tively of January, April, July, and October. For criminal busi- ness, 1st Monday of every month. Worcester. — For civil business, at Worcester, 1st Monday of March, Monday next after 4th Monday of August, and 2d Mon- day of December ; at Fitchburg, 2d Mondays respectively of June and November. For criminal business, at Worcester, 3d Monday of January, 2d Monday of May, and 3d Monday of October ; at Fitchburg, 2d Monday of August. When public convenience requires, two or more sessions may be held in the same county, or an established term may be ad- journed from one shire town to another in the same county. Per- sons, recognizances, and processes, required to appear at or to be returned to the established term, are then required to appear at and be returnable to the adjourned term. Pub. Sts. c. 152, §§ 22, 25. Supreme Judicial Coiirt. The Supreme Judicial Court consists of a chief justice and six associate justices, and is the tribunal of last resort in the Commonwealth, Pub. Sts. c. 150, § 1. It has original and exclusive jurisdiction of suits on probate bonds. Pub. Sts. c. 143, § 19. It is the Supreme Court of probate, and as such is vested with an appellate jurisdiction of COUETS AND VENUE 01 ACTIONS. 23 all matters determinable by the probate courts, except where other provisions are made. Pub. Sts. c. 156, § 5. See Sts. 1887, c. 332, § 3 ; 1888, c. 290 ; 1890, c. 261 ; 1891, c. 415, § 2. It has original and concurrent jurisdiction with the Superior Court of civil actions, except actions of tort, in which the damages demanded or property claimed exceeds in amount or value four thousand dollars if brought in the county of SufEolk, and one thousand dollars if brought in any other county, if the plaintiff, or some one in his behalf, before ser- vice of the writ, makes oath or affirmation before some justice of the peace that he verily believes the matter sought to be recov- ered actually equals in amount or value the sums named above respectively ; and a certificate, of the oath or affirmation must be indorsed on or annexed to the writ. Pub. Sts. c. 150, § 5. It has exclusive and concurrent jurisdiction with the Supe- rior Court in cases of insolvency, of the settlement of affairs of corporations which are authorized to transact insurance upon the assessment plan, or of any fraternal beneficiary cor- porations which are so authorized, and to that end may ap;- point agents or receivers to take possession of the property and effects of the corporations. St. 1892, c. 435.^ An action at law brought originally in this court without the affidavit described above, will be dismissed on motion, Harvey v. De Witt, 13 Gray, 536 ; but the absence of the affi- davit is a defect in the process not affecting the jurisdiction of the court, and is not fatal unless objection is made before ver- ^ The Constitution of the Commonwealth provides that " each branch o£ the legislature, as well as the Governor and Council, shall have author- ity to require the opinion of the justices of the Supreme Judicial Court upon important questions of law and upon solemn occasions." Const, c. III., Art. I., Sect. II. It is said: " The separation of the executive, legis- lative, and judicial departments of the government, established by the Constitution in effect prohibits the justices from giving any opinions to the other departments for the purpose of influencing their action, except in cases which fall within the clause above cited." Answer of Justices, 148 Mass, 623. See also Opinion of Justices, 5 Met. 597; 126 Mass. 566; Answer of Justices, 150 Mass. 598. 24 MASSACHUSETTS PEACTICE. diet. McLaughlin v. Cowley, 127 Mass. 316; Pub. Sts. c. 167, §82. If the certificate is not dated, the action will not therefore be dismissed, if it can be proved that the certificate was in fact indorsed on or annexed to the writ before service. Ives V. Hamlin, 5 Gush. 534. And where the affidavit was made by an attorney of the court, known as such by the roll, on a writ issued under his direction for the collection of a debt, it was held that the court would infer that he did the act in behalf of the plaintiff, if that fact did not appear by the affi- davit itself. Wright v. Coles, 11 Met. 293. See Lincoln v. Taunton Copper Manufacturing Co., 11 Gush. 440 ; Farrar v. Parker, 7 Met. 43. It seems that no affidavit is necessary in actions on bonds given in probate proceedings of which the court has exclusive jurisdiction. This court is invested with authority to exercise a general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein, where no other remedy is expressly provided, and may issue writs of error, certiorari, mandamus, prohibition, quo warranto, and all other writs and processes to courts of inferior jurisdiction, corporations, and individuals, that may be necessary to the furtherance of jus- tice and the regular execution of the laws. Pub. Sts. c. 150, § 3. It may also issue writs of habeas corpus. Pub. Sts. c. 185. See Habeas Gorpus. The court has jurisdiction over certain classes of actions when removed from the Superior Court by the consent of par- ties. Pub. Sts. c. 150, § 6. See Kemoval op Actions. Questions of law on exceptions, on appeals from the Supe- rior Court, on cases stated by the parties, and on special verdicts, and all issues in law (except in the case of de- murrers where special provision is made), are required to be heard and determined by the full court ; ^ and four justices 1 Demurrers are first heard and passed upon by a single justice, sub- ject to revision customarily by appeal to the full court if the case was COURTS AND VENUE OF ACTIONS. 25 constitute a quorum to decide all matters requiring to be so heard. Pub. Sts. c. 150, §§ 2, 7. Massachusetts National Bank v. Bullock, 120 Mass. 86 ; Cowley v. Train, 124 Mass. 226. See Supeeiob Court, sujpra. Sittings. The sittings of the Supreme Judicial Court are held as fol- lows. Pub. Sts. c. 150, §§ 30-32, and subsequent statutes cited infra : — LAW SITTINGS. For the Commonwealth. — At Boston, 1st Wednesday of January, for questions of law arising in Barnstable, Middlesex, Norfolk, and Suffolk, and also all questions of law arising in other counties where special provisions are not made therefor. This term " 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 in point of fact, " is uniformly adjourned from time to time until the Tuesday before the first Wednesday of Janu- ary in the following year." Greenwood v. Bradford, 128 Mass. 296, 297. The custom of the court has established as adjourned sittings for the argument of cases the first Tuesday of March and the second Tuesday of November in each year. Berkshire. — At Pittsfield, 2d Tuesday of September. Franklin and Hampshire. — Alternately at Greenfield and Northampton, 1st Monday after 2d Tuesday of September, the terms at Northampton being in the even years. Hampden. — At Springfield, 2d Monday after 2d Tuesday of September. Worcester. — At Worcester, 3d Monday after 2d Tuesday of September. (St. 1885, c. 48.) Plymouth. — At Plymouth, 3d Tuesday of October. first heard in the Superior Court ; but if the first hearing is before a justice of the Supreme Judicial Court, the remedy is not by appeal, but hy bill of exceptions or report. Pub. Sts. c. 167, §67; Cowley v. Train, supra. Under Pub. Sts. e. 153, § 8, a demurrer coming to the Supreme Court upon a bill of exceptions may be heard, although the better prac- tice is said to be to bring up such questions by appeal. McCallum v. Lambie, 145 Mass. 234, 236. 26 MASSACHUSETTS PRACTICE. Bristol, Dukes County, and Nantucket. — At Taunton, 4th Monday of October. Adjournment may be made to Fall Biver. (St. 1891, c. 287, § 2). Essex. — At Salem, 1st Tuesday of November. JURY sittings. Baenstable. — At Barnstable, 1st Tuesday of May. Beekshike. — At Pittsfleld, 2d Tuesday of May. " Beistol, Dukes County, and Nantucket. — At Taunton, 3d Tuesday of April; at New Bedford, 2d Tuesday of November. Adjournment may be made to Fall Biver. Essex. — At Salem, 3d Tuesday of April and 1st Tuesday of November. Feanklin. — At Greenfield, 2d Tuesday of April. Hampden. — At Springfield, 4th Tuesday of April. Hampshire. — At Northampton, 3d Tuesday of April. Middlesex. — At Lowell, 3d Tuesday of April ; at Cambridge, 3d Tuesday of October. NoEPOLK. — At Dedham, 3d Tuesday of February. Plymouth. — At Plymouth, 2d Tuesday of May. Suffolk. — At Boston, 1st Tuesday of April and 2d Tuesday of September. Woecestee. — At Worcester, 2d Tuesday of April. Four or more justices present at a jury sitting may exercise the powers of a full court ; a single justice at a law sitting has the same authority as at a jury sitting. Pub. Sts. c. 160, §36. VENUE. Actions are divided, in respect of venue, into two classes, local and transitory. Local Actions. A local action is one that must be brought in the county in which the cause of action actually arose. The subject or thing to be recovered may be in its nature local, or the action may arise out of some local subject or the violation of some local right or interest. Of this class are all actions brought to recover seisin or possession of lands or tenements ; also. COURTS AND VENUE OF ACTIONS. 27 for injuries to lands or interests in land, such as rights of way or of common, and rights in watercourses. Com. Dig. Action, N. 5 ; Gould, PI. §§ 105-107. An action by the assignee of a covenantee against the cov- enantor, on a covenant concerning land, is a local action, and cannot be maintained out of the county where the land is situated, although the land is out of the State and both parties reside here; the reason being that, in such a case, there is no privity of contract between plaintiff and defend- ant, but merely a privity of estate ; and when an action is founded on privity of estate merely, it is local. Clark v. Scudder, 6 Gray, 122 ; Zienow v. Ullis, 6 Mass. 331. But it is not so of an action upon an agreement to convey land, because the privity is one of contract and not of estate. Davis V. Parker, 14 Allen, 94. An action for an injury to a mill privilege, or a fishery, by reason of a dam below and in another county, may be brought either in the county where the plaintiff's privilege is situated or where the dam is located. Thompson v. Crocker, 9 Pick. 59 ; Barden v. Crocker, 10 Pick. 383 ; Mayor, &c. of London v. Cole, 7 T. R. 579. Summary process to recover land must be brought in the county where the premises are situated ; but when a defend- ant resides in any other county, the writ may be served upon him in the county of his residence. Pub. Sts. c. 175, §§ 3, 4. At common law the action of trespass q^uare clausum /regit was local in its character and could only be prosecuted in the county in which the close was situated. This rule has been modified by legislation, so that now the action may be begun by trustee process, returnable in the county where the trustee resides; or it may be brought before a trial justice, or police, district, or municipal court, in the county in which the tres- passer resides or is found, although the close itself may be in another county. To this extent the action has been made transitory, Pub. Sts. c. 167, § 1 ; c. 183, § 1 ; Putnam v. Bond, 28 MASSACHUSETTS PKACTICE. 102 Mass. 370; Way v. Dame, 11 Allen, 357; Sumner v. Finegan, 15 Mass. 280; Pitman v. Flint, 10 Pick. 604, but it is still so far a local action that, at common law, the courts of the Commonwealth have no jurisdiction of trespass com- mitted in another State or country. Allin v. Connecticut River Lumber Co., 150 Mass. 560. Replevin is a local action, both at common law and by statute, and must be brought in the county in which the goods are detained. BoUnson v. Mead, 7 Mass. 353; Pub. Sts. c. 184, § 11.^ The writ may be issued by the clerk of the courts in any county, but must be made returnable as above. Pub. Sts. c. 161, § 21. Judson v. Adams, 8 Cush. 556. A writ of error in civil cases must be sued out in the county in which the judgment alleged to be erroneous was rendered. Pub. Sts. c. 187, ^ 2; Ide v. Cleworth, 10 Cush. 415. See Chap. III. post. Every civil action for the recovery of a for- feiture (except actions in which the Commonwealth is plaintiff and actions brought to recover money for the Commonwealth), must be brought in the county in which the offence was com- mitted, unless a different provision is made in the statute imposing the forfeiture. Pub. Sts. c. 161, § 11. For pro- visions concerning venue in certiorari, audita querela, habeas corpus, and review, see Chap. III. post. When a tract of land lies in different counties^ any action concerning it may be brought in either or any of the counties, and the court may allow amendments to declarations so as to include the whole tract. But this provision does not apply if one of the parties is a county, the city of Boston, any other city or town, a school district, or a parish. Pub. Sts. c. 161, § 3 ; Bates v. Bay, 102 Mass. 458. "When it appears on trial that a local action has been brought in an erroneous venue, the court may, of its own motion, order a nonsuit to be entered, unless good cause is shown why the trial should be allowed to proceed. Pub. Sts. COURTS AND VENUE OF ACTIONS. 29 c. 167, § 73. Whether a nonsuit shall be ordered, or the action dismissed, on motion of the defendant, especially after he has appeared and answered to the merits, rests in the dis- cretion of the court. Putnam v. Bond, 102 Mass. 370 ; Osgood V. Ifynn, 130 Mass. 335 ; Morris v. Farrington, 133 Mass. 436. When judgment is entered in a case so brought, the writ of possession or execution will be so framed that the judg- ment may be executed in the proper county. Pub. Sts. c. 171, §14. " When it appears that an action, suit, or proceeding, com- menced 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 papers relating thereto, to be transferred to tlie proper county, upon such terms to the defendant as the court may deem reasonable ; and it shall thereupon be entered and prosecuted in the same court for that county as if originally returnable therein, and all prior proceedings otherwise regularly taken shall thereafter be valid." Pub. Sts. c. 161, § 12. The power of the court to remove actions brought in the wrong county is not exhausted by a single removal, and so the action may be removed a second time into the county from which it was at first removed, it appearing that the court there had in fact jurisdiction. Hazard v. Wilson, 152 Mass. 268. In a transitory action begun in the Superior Court in one county, an appearance generally, and an answer to the merits filed in another county, to which the action had been removed before service of process, is a waiver of objection to the juris- diction of the court. Ibid. The question whether an action has been brought in the wrong county is properly to be raised by plea in abatement, and a decision upon the plea by a judge of the Superior Court is final. Guild v. Bonnemort, 166 Mass. 522. See Abate- ment ; St. 1887, c. 347 ; and Venue fixed ly Statute, infra. 30 MASSACHUSETTS PRACTICE. Transitory Actions. A transitory action is one the cause of which has no local- ity, but follows the person ; and any court of general jurisdic- tion that has jurisdiction of the parties may take cognizance of the subject-matter of the action. To this class belong, generally speaking, all actions, whether sounding in contract or tort, in which it is sought to recover merely money or per- sonal property. It includes most actions on contracts and actions for injuries to the person or personal property, as for assault and battery, slander, libel, malicious prosecution, trover, and deceit. Gould. PI. c. 3, § 112. Transitory actions (except in cases in which it is otherwise provided), if any one of the parties lives in the State, are required to be brought in the county where some one of them lives or has his usual place of business. If none of the parties live in the State, the action may be brought in any county. Pub. Sts. c. 161, § 1. See Palmer v. Kelleher, 111 Mass. 320. Personal actions of a transitory nature may be maintained in any jurisdiction within which the defendant is found, so that process is legally served upon him. When the defendant is in the State, however transiently, and the summons is actu- ally served upon him there, the jurisdiction of the court is complete as to the person of the defendant. Barrell v. Benja- min, 15 Mass. 354 ; Peabody v. Hamilton, 106 Mass. 217. This rule includes suits between aliens on contracts made in a foreign country. Boberts v. Knights, 7 Allen, 449. Venue fixed, or changed ly Statute. In any action or proceeding pending in the Supreme Judi- cial or Superior Court, in which it is made to appear to the satisfaction of any justice of the court in which such action or proceeding is pending, that, by reason of local prejudice or other cause, the parties, or either of them, cannot have an impartial trial in the county where the action or proceeding was commenced and is pending, the court may, on the appli- OOUKTS AND VENUE OF ACTIONS. 31 cation of either party, order such action or proceeding to be removed for trial to such other county as shall be deemed most fair and equitable for the parties thereto.' St. 1887, c. 347. See Removal op Actions. When, in the opinion of a justice of the Supreme Judicial Court or of the Superior Court, it is important tliat a writ or other process should be speedily issued, he may, by special order, direct it to be done by the clerk of the court in the county where he is sitting, instead of that in which the cause is pending ; and such order shall be transmitted by the clerk to whom it is directed to the clerk where the cause is pending, to be filed and recorded in the case. St. 1886, c. 221. When it appears in any action, suit, or proceeding, com- menced in the Supreme Judicial Court or the Superior Court by trustee process, that the trustee was made a party for the purpose of giving the court jurisdiction of the cause in the county where such trustee resides or has a usual place of busi- ness, and where neither the plaintiff nor the principal defend- ant resides or has a usual place of business, the court at any time before trial, may order the same, with all papers relating thereto, to be transferred to the county in which some one of the principal parties resides, upon such terms as the court may deem reasonable ; and it shall thereupon be entered and prosecuted in the same court for that county as if originally returnable therein, and all prior proceedings otherwise regu- larly taken shall thereafter be valid. St. 1893, c. 285. All actions, whether local or transitory, against the inhabi- tants of a county, must be brought either in the county where the plaintiff lives, in the defendant county, or in a county adjoining thereto, as the plaintiff may elect. All actions hy the inhabitants of a county must be brought either in the county where the defendant lives, or in a county adjoining the plaintiff county; and when the defendant lives in the plaintiff county, the action must be brought in an adjoining county. Pub. Sts. c. 161, §§ 5, 6. 32 MASSACHUSETTS PKACTICE. It will be noticed that these provisions do not authorize actions in which a county is a party to be brought in the county where a party has his usual place of business, unless it is at the same time " an adjoining county." Actions against a city, town, or person, to recover for injury or damage received through a defect or want of repair, or of sufficient railing in or upon a highway, townway, causeway, or bridge, are required to be brought in the county in which the city or town is situated or the person resides ; except that such actions against the city of Boston may be brought in Middlesex or Norfolk, or in the county in which the party bringing the action resides; and such actions against the town of Nantucket, or against any town in Dukes County, may be brought in the county of Bristol. Ibid. § 7. See Osgood v. Lynn, l30 Mass. 335. Except as above stated, actions, suits, and prosecutions by and against the city of Boston, and suits brought by the col- lector of the city for taxes due, may be brought in either of the counties of Suffolk, Essex, Middlesex, or Norfolk, or in the county where the plaintiff lives; and if brought by the city, or by its collector, in the county of Suffolk, the action may be removed to one of the other of the counties just named, in manner following : the defendant or tenant, at the term at which his appearance is entered, within thirty days after the day for appearance in the case (St. 1885, c. 385, § 14), may file a motion in writing for the removal of the suit, and the court will thereupon order it to be removed to the proper court in such one of the other of the counties named above as the attorney of the city of Boston elects. The attorney is required to enter the same accordingly in the court so designated, at the then next return day (St. 1885, c. 385, § 1) and file therein certified copies of the writ or other process, and of the order of removal ; and the subsequent pro- ceedings will be conducted in like manner as if the suit had been originally begun in that county. Pub. Sts. c. 161, §§9, 10. COURTS AND VENUE OF ACTIONS. 33 When a corporation other than a county or the city of Boston is a party to an action (except actions for damage occasioned by defects in highways), the action may be brought as follows (Ibid. § 8) : — 1. When both parties are cities or towns, school districts, or parishes, the action may be brought in the county in which either of the cities, towns, school districts, or parishes is situated. Pub. Sts. c. 161, § 8, cl. 1. 2. When the action is between a city, town, school district, or parish and a natural person, it may be brought either in the county in which such city, town, school district, or parish is situated, or in that in which the other party lives. Ibid, cl. 2. 3. When one of the parties is a corporation of any other description than those above mentioned (i. e. counties, cities, towns, school districts, and parishes), the suit may be brought 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. Ibid. cl. 3. But a local action against a corporation must be brought in the county in which the cause of action arises. Vt. & Mass. R. R. V. Orcutt, 16 Gray, 116. A turnpike corporation whose road was in Essex, Middle- sex, and Suffolk counties had its principal office in Essex, where its treasurer was to be found, the books were kfept, the meetings of the directors and corporation were held, and the superintendent had his office. Its only foothold in Suffolk County was the Chelsea end of a bridge over the Mystic River, from Charlestown to Chelsea, on which the corporation vhad a toll-house, where an agent was stationed to receive tolls and sell tickets, and where the treasurer sometimes paid the work- men employed in repairing the bridge. On these facts it was held that the corporation was properly sued in Suffolk, be- cause it had in that county " an established or usual place of 3. 34 MASSACHUSETTS PRACTICE. business " within the meaning of the statute. Rhodes v. Salem Turnpike & Chelsea Bridge Corporation, 98 Mass. 95. In the case la'st cited, Hoar, J., said : " So in the case of a manufacturing company, which may have its treasurer's office and hold 'its meetings in the city of Boston, and have its manufacturing establishment in another county; under this provision of the statute (Gen. Sts. c. 123, § 5, cl. 3), it could .sue and be sued in either place." See Barre Nat'l Bank v. Bingham M'fg Co., 127 Mass. 563. By St. 1884, c. 330, § 1, it is provided that every corporation, except insurance companies, established under the laws of any other State or foreign country, and having a usual place of business in this Commonwealth, must, before doing business in this Commonwealth, appoint in writing the commissioner of corporations or his successor in office to be its true and lawful attorney, upon whom all lawful processes in any action or pro- ceeding against it may be served, and in such writing must agree that any lawful process against it which is served on such attorney shall be of the same legal force and validity as if served on the company, and that the authority shall con- tinue in force as long as any liability against the company remains outstanding in the Commonwealth. By St. 1889, c. 398, § 2, this requirement is extended to include persons or corporations owning or managing foreign vessels which run, or are advertised to run, to any port in the Commonwealth.^ Transitory actions by or against executors or adminis- trators may be brought in any county in which such actions might have been brought by or against the testator or intes- tate, at the time of his decease. Pub. Sts. c. 161, § 2. 1 Before the passage of these statutes it had been a question whether a foreign corporation, other than an insurance company, having a usual place of business in this State, might be treated as found here, and there- fore liable to suit in our courts. See Natl Bank of Commerce v. Hunting- ton, 129 Mass. 444; Andrews v. Mich. Central R. R. Co., 99 Mass. 534; Silloway v. Columbia Ins. Co., 8 Gray, 199: Desjaer y. Continental Water Meter Co., 137 Mass. 252. COURTS AND VENUE OF ACTXONS. 35 Any civil action in which the Commonwealth is plaintiff, or which is brought to recover money due to the Commonwealth, may be brought in the county in which the defendant lives or has his usual place of business, or in the county of Suffolk. Ibid. §4. If a transitory action is brought in the wrong county, and is not transferred by order of the court, the statute provides that " the writ shall abate, and the defendant shall be allowed double costs." Ibid. § 1. But when the court has jurisdic- tion of the subject-matter, the objection that the action is brought in the wrong county must be taken by plea or answer in abatement or by motion to dismiss. It is not cause for arrest of judgment, and the court has no right to entertain a motion to dismiss for that cause, after general appearance and answer to the merits. Brown v. Webber, 6 Cush, 560 ; Murphy v. Merrill, 12 Cush. 284; Pub. Sts. c. 167, §82; Cleveland v. Welsh, 4 Mass. 691 ; Hastings v. Bolton, 1 Allen, 529. See Hazard v. Wilson, 152 Mass, 268, cited ante p. 29. The Supreme Judicial Court, sitting as a full court in any county or for the Commonwealth, has full jurisdiction of all questions of law and of all cases or matters at law or in equity, arising in any other county than that in or for which it is sitting, and which might properly come before and be heard and determined by the full court sitting for such other county ; and upon an application of one or more of the parties a majority of the justices of said court, in their dis- cretion, have power to order any such questions of law, or case or matter, to be entered and heard by the full court sitting in any county, or at Boston for the Commonwealth. St. 1892, c. 127. 36 MASSACHUSETTS PRACTICE. CHAPTER n. COMMON WEITS — TRUSTEE PKOCESS — REPLEVIN -SUMMAKY PROCESS EOR RECOVERY OF LAND. In General. Prior to the enactment of the St. 1887, c. 383, the law- required that all civil actions, except those founded on scire facias or other special writs, should be begun by original writs, signed, sealed, and bearing test as required by the Con- stitution. Pub. Sts. c. 161, § 18. The law of 188T provided that " all civil actions, whether at law or in equity, except replevin, in the Supreme Judicial, and Superior courts, may be commenced by a bill or petition with a writ of subpoena according to the usual course of proceedings in equity, or the bill or petition may be inserted in an original writ of sum- mons or of summons and attachment, and with or without an order for the arrest of the defendant. The meaning of this statute was explained at some length by Field, C. J., in WortMngton v. Waring, 157 Mass. 421. The statute is not intended "to abolish the distinction be- tween legal and equitable rights or remedies." The court holds that each proceeding under this statute "must be treated either as an action at law or as a suit in equity, with the incidents which, by established practice, or by other statutes, attach to the particular action or suit, and that the pleadings and procedure must conform to this view." The Constitution of Massachusetts provides as follows: " 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 COMMON WKITS — TEUSTEE PKOCESS. 37 from whence they issue ; they shall bear test of the first jus- tice of the court to which they shall be returnable, who is not a party, and be signed by the clerk of such court." Const. Part 2, c. vi. art. 5. The seal, test, and signature are, however, treated as the merest matters of form, and may be supplied by amendment. Austin V. Lamar Ins. Co., 108 Mass. 338, and cases cited. " The name of the proper officer may be inserted after tlie writ has been issued by the clerk, a blank being left for that purpose ; or the name, if printed, may be erased, and another inserted by the party or his attorney ; and this being done before the service of the writ, it is considered as having issued with a proper test, in pursuance of the Constitution." Bipley V. Warren, 2 Pick. 592, 595. A fac-simile of a clerk's signature may be imprinted by him upon any writ, summons, order of notice to appear, and order of attachment, except executions. St. 1886, c. 13. Original writs, in actions before trial justices, must be signed by the justice before whom the action is brought, and are to be dated and filled up like other writs. Pub. Sts. c. 161, § 17. Processes issuing from a police, district, or municipal court having a clerk, are required to be under the seal of the court, signed by the clerk or an assistant clerk, and bearing test of the justice, except that if the justice is a party thereto, or his office is vacant, then such processes must bear test of the special justice holding the oldest commission. St. 1893, c. 396, § 64. If there is no clerk, the writ must bear the signature of the justice. Pub. Sts. c. 154, § 30 ; St. 1893, c. 396, § 8. An assistant clerk appointed by the court, under an act of the legislature, may, in the absence of the clerk, sign writs which the Constitution requires to " be signed by the clerk of such court," although, by the Constitution, " clerks of the courts " must be elected by the people. Jacobs v. Measures, 13 Gray, 74. Const. Amend, art. 19. 38 MASSACHUSETTS PRACTICE. If the court has not adopted any particular device as its seal, any seal affixed by the clerk to a writ as the seal of the court will be so considered. And it is immaterial whether a blank writ be signed by the clerk, suo manu, or his signature be affixed thereto by his order. That the clerk's name was annexed by his order, before service, is to be presumed, and cannot be contested, except by plea in abateinent filed at the proper time. Stevens v. Ewer, 2 Met. 74 ; Sx parte Gladhill, 8 Met. 171, The Statute of 1784, c. 28, prescribed the forms of writs in certain actions, but these have been altered from time to time by successive changes in the law, sometimes expressly, and sometimes by necessary implication ; and the courts also have been obliged to make or sanction alterations, or to frame new writs, in order to execute the laws and to prevent a failure of justice. Cooke v. Gibbs, 3 Mass. 193 ; Eep. Commissioners on Rev. Sts. c. 90, §§ 1-9 (1836). The Revised Statutes (c. 90, §§ 8, 9) provided that the forms of writs should be the same as had been previously established by law and by the usage and practice of the courts, but that alterations therein might 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. All changes in the forms of writs were made subject to the final control of the Supreme Judicial Court, which was author- ized to regulate, by general rules, such changes in all the courts of the State. These provisions were re-enacted in the Gen. Sts. c. 128, §§ 14, 15 ; Pub. Sts. c. 161, §§ 18, 19. Capias and Attachment. The following is a form of the writ of capias and attach- ment (Pub. Sts. c. 161, § 14):— COMMON WKITS — TKUSTEE PROCESS. 39 COMMOITWEALTH OF MASSACHUSETTS. Suffolk, SS. To the Sheriffs of our several Counties or their Deputies. Greeting. We command you to attach the goods or estate of A. B., of Boston, in said county, to the value of three hundred dollars ; and for want thereof to take the body of the said defend- ant (if he may be found in your precinct), and him safely keep so that you have him before our Justices of our Superior Court next to be holden at Boston, within and for our said County of Suffolk, on the first Monday of April next, then and there to answer unto C. D., of said Boston, in an action of contract, to the damage of the said plaintiff (as he says) the sum of three hundred dollars, which shall then and there be made to appear, with other due damages. And have you there this writ with your doings therein. Witness, A. M., Esquire, at Boston, the first day of March, in the year of our Lord one thousand eight hundred and ninety- three. J. A. W., Clerk. It is desirable that in all legal proceedings the Christian names of parties should be given in full, and the habit of using initials only is condemned. Getchell v; Moran, 124 Mass. 404, 407. When the name of a defendant is not known to the plaintiff, the writ may be issued against him by a ficti- tious name, and, if duly served, cannot be abated for that cause, but may be amended. Pub. Sts. c. 161, § 20. In such cases, it should be alleged in some form that the name is fictitious, and so used because the real name of the defendant is unknown. Baxter v. Doe, 142 Mass. 558. It is also neces- sary in such cases to make sure that the real defendant has been " duly served " with process. " The statute intends, in such a case, a personal service, or what is equivalent thereto." Fitzgerald v. SalentinJs, 10 Met. 436. If an action is brought for an infant plaintiil by his next friend, after the name and description of the plaintiff these 40 MASSACHUSETTS PKACTICE. words may be inserted : " Who sues this action by J. S., the next friend of the said C. D., who is admitted by the court here to prosecute for the said G. Z>." Trask v. Stone, 7 Mass. 241. The above form is approved in Guild v. Granston, 8 Gush. 506, where it is said that the allegation is not traversable. If it be desired that a writ should be served by a constable, a direction must be inserted accordingly, and this may be done by the plaintiff or his attorney at any time before service, or the direction to a constable may be supplied by amendment after service, if the writ was one which a constable might legally serve. But it is not safe or advisable for the judgment cred- itor or his attorney to alter the direction inserted by the clerk in an execution. Hearsey v. Bradbury, 9 Mass. 95 ; Wood v. Boss, 11 Mass. 276 ; Brier v. Woodbury, 1 Pick. 362 ; Blanch- ard V. Waters, 10 Met. 185. The writs of district, police, and municipal courts, in the printed forms, are usually directed to the sheriff of the county in which the court is located or any of his deputies, or any constable of any town in that county. If it is necessary to send the writ out of the county for service, the direction in the writ should be made broad enough to meet the requirements of the particular case. A justice may alter the return day of a writ returnable before himself, after the writ has come into the hands of an officer, and before service. Lapham v. Locke, 103 Mass. 555. Ordinarily, the date of the writ will be considered as the time of the commencement of the action ; but see Estes v. Tower, 102 Mass. 65. Summons and Attachment. The form of capias and attachment given above may be changed into a writ of summons and attachment by striking out the words, "/or want thereof to take the body of," " and him safely keep so that you have him," and inserting instead the words " to summon," " to appear." The order of the writ will then be as follows : " We command you to attach the goods or COMMON WEITS — TKUSTEE PEOCESS. 41 estate of A. B., of Boston, in said county, to the value of three hundred dollars, and to summon the said defendant (if he may he found in your precinct^ to appear before our justices," etc. This form of writ is expressly authorFzed, and must be used in actions against corporations, executors, or administrators, and in other cases in which goods and estate may be attached, but the defendant is not liable to arrest. Pub. Sts. c. 161, §§ 14, 16. Willington v. Stearns, 1 Pick. 497. When goods or estate are attached on either of the writs before mentioned, there must be a separate summons, to be served on the defendant after the attachment, and the service thereof is declared to be a sufficient service of the original summons. Ibid. § 15. " When the plaintiff or demandant elects to take out his writ in a form which authorizes an attachment of the defend- ant's pi'operty, he must have an original summons served upon the defendant, at least when he causes an actual attachment to be made, and perhaps even if he does not." Wilbur v. Ripley, 124 Mass. 468 ; Harrington v. Conolly, 116 Mass. 69 ; Peahody v. Hamilton, 106 Mass. 217. But this provision does not apply to the service of the writ in trustee process, which must be by copy. Belknap v. Gibbens, 13 Met. 471. Summons. The following is the form of an original summons which may be used when no attachment is intended (Pub. Sts. c. 161, § 14), or it may be used in conjunction with the two forms of writs given above : — Commonwealth of Massachusetts. Suffolk, ss. To A. B., of Boston, in said county. Greeting. We command you that you appear at our Superior Court next to be holden at Boston, within and for our County of Suffolk aforesaid, on the first Monday of April next ; then and 42 MASSACHUSETTS PRACTICE. there to answer to C. D., of said Boston, in an action of contract, which action the said plaintiff has commenced against you, to be heard and tried at our said Court ; and your goods or estate are attached to the value of three hundred dollars, for security to satisfy the judgment which the said plaintifE may recover upon the afore- said trial. Fail not of appearance at your peril. Witness, A. M., Esquire, at Boston, the first day of March, in the year of our Lord one thousand eight hundred and ninety-three. J. A. W., Clerk. From the office of G. & H. Writs of attachment and executions against executors or administrators, for debts due from the deceased testator or intestate, should be made to run only against the goods and estate of the deceased in their hands, and not against their bodies, goods, or estate. Pub. Sts. c. 166, § 6* The order in the writ is to attach the goods and estate which were of the deceased in the hands of the executor or administrator. In a suit on a demand against a person under guardianship, the ward should be named as the defendant in the writ, not the guardian ; and the form of writ used in a suit against an administrator, for a debt due from his intestate, is not appro- priate. The reason is that the estate of the ward never vests in the guardian, while in the other case a judgment, when ob- tained, is to be paid out of the estate of the deceased, the title to which is in his representative, and the writ must indicate whose estate, if any, is to be attached. A writ against " A. B., as he is the guardian of B. C." is a writ against A. B. person- ally, and the other words will be regarded as surplusage. So also, in an action at law against trustees, it is not necessary to describe them in the writ as " trustees ; " for even when they are entitled to indemnity from the trust fund, the judgment is against them as individuals. Odd Fellows Hall Ass'n v. Mc- Allister, 153 Mass. 292 ; Bollins v. Marsh, 128 Mass. 116. It seems that suits against a county, city, town, precinct, parish, religious society, or school district, or against the COMMON WRITS — TRUSTEE PROCESS. i 43 proprietors of wharves, general fields, or real estate lying in common, should be begun by original summons, without a capias or order for attachment.^ Pub. Sts. c. 161, § 35 ; and see Joyner v. School District in Egremont, 3 Gush. 567. Writs issuing from the Supreme Judicial Court or the Superior Court may be made returnable on the first Monday of any month. All writs, processes, notices and citations in the Supreme Judicial Court for the counties of Dukes County and Nantucket must be made returnable in the county of Bristol. St. 1885, c. 384, § 1. In district, police, and municipal courts, Saturday in each week is the return day for writs, processes, notices to appear, and citations in all civil actions and proceedings. St. 1893, c. 396, § 22. A writ issued by a trial justice may be made returnable at his dwelling-house or any other convenient and suitable place, but not earlier than nine o'clock in the forenoon, nor later than five o'clock in the afternoon. Pub. Sts. c. 155, § 20. Original writs issued by a trial justice, or by a district, police, or municipal court, must be made returnable not later than sixty days from their date. ' St. 1892, c. 148 ; St. 1893, c. 396, § 17. Original writs, except in trustee process, issued by district or police courts, may be made returnable to any district or police court in the Commonwealth. St. 1893, c. 396, § 17. Original writs in the Supreme Judicial Court and all writs and processes in the Superior Court may be made returnable to the same court in any other county, and may run into any 1 Suits in equity may be begun by bill or petition with a writ of sub- poena according to the usual course ol proceedings in equity, or inserted in an original writ of summons or of summons and attachment, or by a dec- laration in an action of contract or tort, as the case may be, with or with- out an order for the attachment of the property or arrest of the defend- ant. Such writs are required to be made returnable at. the terms of the Supreme Judicial Court/ as established in the several counties, or on the rule days established by the court. Pub. Sts. c. 151, § 5. 44 MASSACHUSETTS PEACTICE. county. Pub. Sts. c. 161, § 21. This provision applies to writs of replevin, Judson v. Adams, 8 Cush. 556. The declaration is, in theory, a part of, and under the old practice had always to be inserted in, the writ. The common counts were printed in the writ forms in use before the prac- tice act; but this practice of using the common counts unitedly left the defendant in doubt as to the count upon which the plaintiff really intended to rely, and is now for- bidden by the statutes, which also provide that in actions of contract and actions of tort, unless an arrest is made, the writ need not contain the declaration. Pub. Sts. c. 167, § 7. There is, however, no objection to inserting the decla- ration, and it is often convenient to do so, when suit is brought upon a common count, or when the cause of action is so simple that no further time is desired for drawing the declaration. When the declaration is inserted in the writ before service, no alteration or addition in it can be made afterwards, except by leave of court appearing upon the record, or by agreement of parties. Jones v. Ilsley, 1 Allen, 273. If an attachment of property is made, and the declaration and bill of particulars, when necessary, are not inserted in the writ, the plaintiff is required to furnish the defendant or his attorney a copy of them, within three days after the same is demanded in writing of the plaintiff or his attorney. Pub. Sts. c. 167, § 8. In actions of contract and actions of tort brought in district, police, and municipal courts, and before trial justices, if the declaration is not inserted in the writ before service, the defendant is entitled, upon motion, as of right, to a continu- ance for at least seven days from the return day. Pub. Sts. c. 167, § 7. Trustee Writs. The form of trustee writ is precisely that of an ordinary writ of summons and attachment to and including the ad COMMON WKITS — TRUSTEE PROCESS. 45 damnum. After the words " due damages," the writ proceeds as follows : — And whereas the said plaintiff says that the said defendant has not in his own hands and possession goods and estate to the value of three hundred dollars aforesaid, which can be come at to be at- tached, but has entrusted to and deposited in the hands and posses- sion of E. F. of Chelsea, in the county of Suffolk, trustee of the said defendant, goods, effects, and credits, to the said value : We command you, therefore, that you summon the said trustee (if he may be found in your priecinct) to appear before our justices of our said court to be holden as aforesaid, to show cause, if any he has, why execution to be issued upon such judgment as the said plaintiff may recover against the said defendant in the action (if any) should not issue against his goods, effects, or credits in the hands and possession of the said trustee. And have you there this writ, etc. (Pub. Sts. c. 183, § 2.) 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 begun by trustee process,^ and any person or corporation may be sum- moned as trustee of the defendant ; but a person who is not a resident of the State, or a corporation which is not estab- lished under its laws, cannot be so summoned unless he or it has a usual place of business in the State. Pub. Sts. c. 183, § 1. Except as above provided, non-residents and foreign cor- porations cannot be made amenable to this process. Smith v. Mut. Life Ins. Go. &c., 14 Allen, 336; Larhin v. Wilson, 106 Mass. 120. But it seems that our courts have jurisdiction over them as trustees, if only they have a usual place of busi- ness in this State, whether they have property here or not. 1 Tort for trespass quare clausum /regit is a personal action ■within the meaning of this section, and must be brought in the trustee's county, albeit the land is situated in a different county. Way v. Dame, 11 Allen, 357. But if the land is in another State, the action cannot be brought in our courts by trustee process or otherwise, because the action is a local, as well as a personal action. AUin v. Conn. River Lumber Co., 150 Mass. 560. 46 MASSACHUSETTS PRACTICE. Nal^l Bank of CommerGe v. Huntington, 129 Mass. 444. See Pub. Sts. c. 119, § 202 ; St. 1884, c. 330, as to appointment of agents or attorneys by foreign corporations. When the action is brought in the Supreme Judicial Court or the 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 made returnable in that county ; otherwise it may be returnable in any county in which any of the trustees dwells or has his usual place of business, without regard to the domicil of the other parties. Pub. Sts-. c. 183, § 3^ As to transfer of case for trial in another county see St. 1898, c. 285, and Chap. L, ante. When the writ is properly brought in the trustee's county, and the defendant has been duly served with notice, the action may proceed against the defendant, even if no legal service has been made on the trustee, or after the trustee has been discharged, although neither plaintiff nor defendant lives in the county where the suit is brought. Lucas v. Nichols, 5 Gray, 309 ; Belknap v. Gihbens, 13 Met. 471 ; Harris v. Doherty, 119 Mass, 142 ; Raymond v. Butterworth, 139 Mass. 471 ; Pub. Sts. c. 183, § 9. , But if the action is brought in a county in which no one of the trustees lives or has a usual place of business, it will be dismissed on motion of a person named as trustee in the writ, or of the principal defendant ; and the plaintiff will not be allowed to maintain his action after discontinuing as to the trustee. Lewis v. Denney, 4 Cush. 588. If, however, the defendant has appeared and submitted to trial, he will be cut off from moving in arrest of judgment for want of jurisdiction, for the cause named. Brown v. Webber, 6 Cush. 560. If the suit is brought in the defendant's county and service has been duly made upon him, it is immaterial that the person named as trustee in the writ lives out of the. State. Barrows V. Hose, 7 Gray, 282. COMMON WRITS — TRUSTEE PROCESS. 47 No person can be compelled to answer as a trustee in an action before a trial justice, or before a district or police court, in any other county than that in which he dwells or has his usual place of business. Pub. Sts. c. 183, § 4. If the trustee or all the trustees live or have their usual places of business in the county in which the action is brought, and the action is brought in a district or police court, it must be made returnable in the court in whose district some one of the parties lives or has his usual place of business. And in such case the jurisdiction of trial justices is excluded. St. 1893, c. 396, § 13. If the action is begun by trustee process from a municipal court in Boston, and all the trustees dwell or have usual places of business in one district, the writ must be made returnable in that district, otherwise it may be made returnable in any district in which either -or any of them dwells or has his usual place of business, without regard to the domicil of the other parties. Pub. Sts. c. 154, § 48. The plaintiff may at any time insert the names of other trustees, and cause the writ to be served upon them. Pub. Sts. c, 183, § 8. The statute is construed " to allow the names of other trustees to be inserted in a writ after a good and valid service thereof on one or more of the trustees named therein, and not to cure a void service." Service upon a trustee who does not live or have a place of busi- ness in the county in which the writ is returnable is void or voidable, unless the writ at the time of such service con- tained the name of a trustee who lived or had his usual place of business in the return county ; and the subsequent inser- tion of such a name, before service on the defendant, will not cure the defect. Hooper v. Jettison, 22 Pick. 250. WTiai may he attached hy Trustee Process. "To constitute the relation of trustee, there must be a privity of contract, express or implied, between the princi- pal debtor in the trustee process and him who is sought to be 48 MASSACHUSETTS PRACTICE. charged as trustee, unless there he a statute provision that renders such privity unnecessary." Williams v. Boardman, 9 Allen, 570 ; Walker v. Cook, 129 Mass. 577. A person cannot be charged as trustee on account of any liability in tort, even after a verdict against him. There is no debt in such a case until judgment is entered. Thayer v. Southwick, 8 Gray, 229. Attachment by trustee process may be made (Pub. Sts. c. 183, §§ 22-26) of 1. Debts, legacies, goods, effects, or credits due from, or in the hands of, an executor or administrator as such. Holbrook V. Waters, 19 Pick. 354 ; Boston Bank v. Minot, 3 Met. 507 ; Vantine v. Morse, 104 Mass. 275, 276 ; Nickerson v. Chase, 122 Mass. 296 ; Mechanics' Sav. Bk. v. Waite, 150 Mass. 234. This provision does not apply when by the terms of the will one person is entitled to receive from an executor, for life, the income of the estate, with remainder to the heirs-at- law. In such case a creditor of one of the heirs-at-law cannot maintain trustee process during the continuance of the life interest. Carson v. Carson, 6 Allen, 397. See also Gapen v. Buggan, 136 Mass. 501. As to course of proceeding, when the estate has been represented insolvent, see Chijptill v. Ayer, 149 Mass. 49. An administrator is not liable as trustee merely from the fact that he has been licensed to sell the real estate. Beverstock v. Brown, 157 Mass. 565. Trustee process may be brought against an executor or administrator, and a donee or debtor of the deceased, sum- moned as trustee. Harmon v. Osgood, 151 Mass. 501. 2. A declared dividend on the estate of an insolvent debtor in the hands of the assignee, if it is not upon a claim for wages which would have been exempt from attachment in the hands of the original debtor. 3. Funds, credits, or dividends due from or in the hands of receivers after an order for distribution. 4. Debts due but not payable ; but the trustee will not be COMMON WEITS — TRUSTEE PEOCESS. 49 compelled to pay or deliver before the time appointed by his contract ; Stone v. Hodges, 14 Pick. 81. Receivers and others to wliom property is intrusted by authority of the law cannot be made chargeable by trustee process, except in tlie few instances mentioned above. Colby v. Coates, 6 Gush. 558 ; Columbian Book Co. v. Be Golyer, 115 Mass. 67. See Pub. Sts. c. 183, § 34. 5. Property held by a conveyance or title that is void as to the creditors of the defendant. A debt due to one partner alone may be attached in an action against the firm; and such an attachment is not affected by a subsequent attachment of the same debt by a separate creditor of the partner. Stevens v. Perfy, 113 Mass. 380. But a creditor of one partner cannot attach a debt due to the firm. Hawes v. Waltham, 18 Pick. 451; Bulfinchy. Win- chenbach, 3 Allen, 161 ; Sullivan v. Zangley, 128 Mass. 235. Comiilon carriers were held chargeable as trustees of one to whom they were conveying a sealed package of money belonging to him. Adams v. Scott, 104 Mass. 164, explain- ing Bottom V. Clarke, 7 Cush. 487 ; Clark v. Brewer, 6 Gray, 320 ; Edwards v. White Line Transit Co., 104 Mass. 159. Constructive possession of the property of the principal defendant is not sufficient to charge the trustee ; it must be in his actual possession or within his control, and not exempt from being taken on execution, so that he may be able to turn it out to be disposed of on execution. Andrews v. Ludlow, 5 Pick. 28 ; Nickerson v. Chase, 122 Mass. 296 ; but on the other hand, it has been held that mere possession by a person who has no claim to hold the property against the owner, does not render him liable as trustee. Staniels v. Raymond, 4 Cush. 314. When the property of a debtor has been assigned to trustees for the benefit of his creditors, in trust to convert the prop- erty into money, and after such conversion and paying tlie expenses of the trust, to distribute the balance pro rata 4 50 MASSACHUSETTS PRACTICE. among his creditors, the trustees cannot, at least until after such conversion and payment, be made chargeable in trustee process at the suit of a creditor, because the right of the debtor is merely an equitable right, and as such not attach- able by trustee process. Massachusetts National Bank v. Bullock, 120 Mass. 86. As to proceedings in equity by "creditor's bill," see Pub. Sts. c. 151, § 2. A single plaintiff cannot summon himself, nor can several plaintiffs summon one of their own number, as a trustee. But the fact that the name and addition of a plaintiff and of a trustee are the same in the writ does not, of itself, prove that they are one and the same person, and therefore the court cannot legally dismiss the action upon motion. The identity of the plaintiff and trustee should be pleaded in abatement. Belknap v. GHbhens, 13 Met. 471.- Whether a husband may in any case be charged as trustee of his wife by ordinary trustee process, see Rohinson v. Trofit- ter, 109 Mass. 478. But a man may be summoned as trustee of his divorced wife. Porter v. Wakefield, 146 Mass. 25. The mortgagee of personal prpperty in the hands of the mortgagor may be summoned as trustee of the mortgagor. Pub. Sts. c. 161, § 79-83 ; Emery v. Seavey, 148 Mass. 566 ; McDonald v. Faulkner, 154 Mass. 34. When property in possession of a mortgagor is attached and the mortgagee summoned as trustee under Pub. Sts. c. 161, §§ 79-83, the latter cannot in any event be charged to pay over goods, effects, or credits in his hands, as in ordinary trustee process, nor can a writ of scire facias be sued out against him, because this mode of attachment can be adopted only when the property attached is in the possession of the mortgagor. Flanagan v. Cutler, 121 Mass. 96. Trustee's Answer. The writ summons the alleged trustee to appear and to show cause why execution to be issued upon such judgment as the COMMON WRITS — TRUSTKE PROCESS. 51 plaintiff may recover against the defendant in the action, if any, should not issue against the defendant's goods, effects, or credits in the hands and possession of the trustee; In the Supreme Judicial and Superior courts, the trustee is required to appear and file his answer within ten days after the return day of the writ, unless the court for good cause shown allows further time. , Pub. Sts. c. 183, § 10 ; St. 1885, c. 384. The answer must be sworn to by the trustee, and should dis- close 'as plainly, fully, and particularly as practicable 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. If he had no property of the defendant, and owed him nothing, he will answer accordingly. Pub. Sts. c. 183, § 11. A person summoned as trustee before a trial justice, or before a district, police, or municipal court, may appear either in person or by attorney, and file a declaration, signed by himself or his attorney, to the effect that he had not in his hands or possession, at the time when the writ was served on him, any goods, effects, or credits of the defendant, and that he submits himself thereupon to examination upon his oath. And if the plaintiff declines to examine him, or if, upon such examination, his declaration appears to be true, he will be discharged. Pub. Sts. c. 183, §§ 13, 14. If, on the other hand, he admits funds in his hands, or wishes to refer the question to the court or justice upon the facts, he may make a written declaration, on oath, of such facts as are material, and the plaintiff may then examine him on written interrogatories. Ibid. 15.^ In district and police courts, if the trustee's answer is not filed before ten o'clock, a. m. on Tuesday next after the return 1 It will be noticed that in the inferior tribunals named above the dec- laration of the trustee is required to be " on oath " only when he admits his liability to the defendant. When he denies his liability, he is re- quired expressly to submit himself " to examination upon his oath." 52 MASSACHUSETTS PRACTICE. day, the court will cause him to be defaulted, and will ad- judge him trustee unless further time is allowed by the court. Rule VII. In the Municipal Court of the City of Boston, the trustee may file his answer at any time during the first term. Rule XXX. Corporations may appear and answer by their cashier, treas- urer, or such other officer as they shall appoint, or as the court or justice shall require to attend for that purpose. Pub. Sts. c. 183, § 16. When several persons are summoned as trustees because of a joint liability, it is prima facie sufficient if one answers for himself and the others, stating their joint account with the defendant. The plaintiff may, however, move for an answer by each trustee, ffennessey v. Farrell, 4 Cush. 267. When trustees are described as partners, it is sufficient if the answer is sworn to by one of them. Gerry v. Gerry, 10 -Allen, 160. If a trustee has effects, he may plead in abatement the want of a regular service on the defendant, otherwise not. But a trustee may plead in abatement the want of a proper service upon himself, for if the service is not regular, he is not bound to answer but is entitled to a discharge. Blake v. Jones, 7 Mass. 28 ; Thayer v. Bay, 17 Pick. 166. Misnomer of the trustee can be taken advantage of by the trustee only. Leonard v. New Bedford Five Cents Savings Bank, 116 Mass. 210. The answers and statements sworn to by the trustee are taken as true in deciding how far he is chargeable, but either party may allege and prove any material facts not stated nor denied by the trustee, that may be material in deciding that question. Pub. Sts. c. 183, § 17 ; Staniels v. Raymond, 4 Cush. 314 ; Emery v. Bidwell, 140 Mass. 271 ; Bostwick v. Bass, 99 Mass. 469. The court may allow the trustee to file a new and addi- tional answer at any stage of the case before final judgment, COMMON WRITS — TRUSTEE PROCESS. 53 upon his own motion, and without a new interrogatory from the plaintiff. Collins v. Smith, 12 Gray, 431 ; Winsted Bank v. Adams, 97 Mass. 110 ; Garriqiie v. Sidehottom, 3 Met. 297. And any question of fact arising upon such additional allegations may be tried by the court, or may be submitted to a jury in such manner as the court may direct. Pub. Sts. c. 183, § 18. When a trustee makes a full disclosure and answers all pertinent interrogatories, all facts which he states upon 'his information and belief are to be taken as true, as well as those which he states upon his own knowledge. Clinton National Bank v. Bright, 126 Mass. 535. The same rule applies to answers of a trustee in scire facias against him, the original suit and the scire facias being both parts of one con- tinuous course of proceedings. Fay v. Sears, 111 Mass. 154 ; Tryon v. Merrill, 116 Mass. 299. But the ownership of the fund, as between the defendant and a claimant is not a fact by the assertion or denial of which the trustee can conclude either the plaintiff or the claimant. Mortland v. Little, 137 Mass. 340. There is no presumption in advance that the alleged trustee has the goods, effects, or credits of the defendant in his pos- session, from which he must relieve himself by his answer. It is for the plaintiff to prove his own allegations by a fair construction of the trustee's answers or by collateral proofs adduced by himself. If it be not thus affirmatively proved that the trustee is chargeable, he must be discharged ; but if he admits enough to charge him, but for some matter in avoidance, it is then incumbent upon him to establish the matter in avoidance. Cardany v. Nevj England Furniture Co., 107 Mass. 116 ; Porter v. Stevens, 9 Cush. 530 ; Lane v. Felt, 7 Gray, 491. White v. Springfield Institution for Sav- ings, 134 Mass. 232 ; Seward v. Arms,14:5 Mass. 195. When no additional facts are alleged, questions arising on the trus- tee's answers, either in the original suit, or to a scire facias. 54 MASSACHUSETTS PRACTICE. are for the court, and not for a jury. Tryon v. Merrill, 116 Mass. 299. No person can be adjudged a trustee in any of the cases following (Pub. Sts. c. 183, § 34) : — 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. Fiske v. Witt, 22 Pick. 83. And even if the note is not negotiable, if transferred for value by the payee, the maker cannot afterwards be charged as trustee of the payee. Fay v. Sears, 111 Mass. 154. But the maker of a promissory note payable on demand, and due and unpaid is chargeable as trustee of the payee, in the absence of proof of the transfer or indorsement of the note. Scott V. Hawkins, 99 Mass. 650. 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 previoiisly demanded of him by the defendant. Bolinson v. Howard, 7 Cush. 257. 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. Thayer v. Tyler, 5 Allen, 94 ; Web- ster V. Lowell, 2 Allen, 123. Guardians are not chargeable as trustees for debts due to their wards. Gassett v. Grout, 4 Met. 486. 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 ou any contingency. Williarns v. Marston, 3 Pick. 65 ; Gassett v. Grout, 'ubi supra ; Wyman v. Hichhorn, 6 Cush. 264 ; Had- ley V. Peabody, 13 Gray, 200 ; Potter v. Cain, 117 Mass. 238 ; O'Brien v. Collins, 124 Mass. 98; Peterson v. Loring, 135 Mass. 397, A co-operative bank may be charged as trustee of a mem- COMMON WEITS — TRUSTEE PROCESS. 55 ber at the withdrawal value of his shares, although he h^ not given notice of his desire to withdraw his shares. Atwood v. Dumas, 149 Mass. 167. If the transaction between the parties is such as to create a debt due absolutely, whether the security held by the trustee is good or not, the trustee may be charged ; but the check of a third party payable to the order of the supposed trustee is not attachable by trustee process, because it may never be paid. Hancock v. Golyer, 99 Mass. 187 ; Lane v. Felt, 7 Gray, 491 ; Knight v. Bowley, 117 Mass. 551. "The contingency must affect the property itself, or the debt which is supposed to exist, and not merely the title to the property in the possession of the trustee, or his liability on a contract which he has actually made, but the force or effect of which is in litigation." Thorndike v. De Wolf, 6 Pick. 120, 122. Fifth, by reason of a debt due from him on a judgment, so long as he is liable to an execution thereon. Salin v. Cooper, 15 Gray, 532. The trustee will be held chargeable only for the balance remaining due after all mutual demands between him and the defendant have been adjusted. Excepting claims for unliqui- dated damages for wrongs or injuries, he will be allowed " every legal and every equitable set-off in his own right or in the right of those with Tyhoni he is privy." Pub. Sts. c. 183, § 27 ; Gree/n y. Nekon, 12 Met. 567, 573 ; Hathaway V. Bussell, 16 Mass. 473 ; Allen v. Hall, 5 Met. 263 ; Eddy v. (fHara, 132 Mass. 56, 61 ; Lannan v. WaUer, 149 Mass. 14. Nor will he, there being no fraud or collusion or unreason- able delay on his part, be held chargeable with interest accru- ipg during the pendency of the trustee process, when interest is not due by the terms of the contract, but is claimed merely as damages for tlie delay in payment. Bichford v. Eich, 105 Mass. 340 ; Huntress v. Burlanh, 111 Mass. 213 ; Smith v. Flanders, 129 Mass. 322; Adams v. Cordis, % Pick. 260. 56 MASSACHUSETTS PKACTICE. The benefit due from an assessment insurance company or a fraternal beneficiary organization, is not liable to attach- ment by trustee process. St. 1885, c. 183, § 11 ; St. 1888, c. 429, § 15 ; Saunders v. BoUnson, 144 Mass. 306. Nor are the funds of railroad relief societies so liable. St. 1886, c. 125 ; nor the proceeds of life insurance, except the amount of pre- miums fraudulently paid. St. 1887, c. 214, § 73. As to money withheld for unpaid taxes, see St. 1888, c. 390, §82. A town is not chargeable as trustee of an assessor of taxes for the amount of the compensation allowed by statute. Walker v. Cook, 129 Mass. 677. When a savings bank is charged as trustee, and in the opinion of the court there arises upon the answer a doubt as to the identity of the defendant, the court may in its discre- tion require the plaintiff to give a bond of indemnity to the bank. Pub. Sts. c. 183, § 33. Wages and Assignments. No person can be adjudged a trustee by reason of any money or credits which are due for the wages of the per- sonal labor or services of the wife or minor children of the defendant. Pub. Sts. c. 183, § 29. The wages or lay due or accruing to any seaman, except a fisherman, are not subject to attachment by trustee process. St. 1886, c. 194 ; St. 1890, c. 289. See Eddy v. O'Eara, 132 Mass. 56. When the wages for the personal labor and services of the defendant are attached for a debt or demand other than for necessaries furnished to him or his family, the trustee is re- quired to reserve in his hands a sum not exceeding twenty dollars, exempt from such attachment; and when the de- mand is for such necessaries, a sum not exceeding ten dollars. Pub. Sts. c. 183, § 30. If the wages in the hands of the trustee do not exceed the COMMON WKITS — TRUSTEE PEOCESS. 57 amount of the exemption, payment by him on an execution will not discharge his debt to the defendant. Burns v. Mar- land Manufacturing Co., 14 Gray, 487. But see Webster v. Lowell, 2 Allen, 123. One who wilfully causes, or aids and abets in causing, wages which are legally exempt to be attached by trustee process for the purpose of hindering or delaying payment, is liable to a fine not exceeding fifty dollars. Pub. Sts. c. 183, §32. Claims for rent of a dwelling-house occupied by the debtor or his family are deemed to be claims for necessaries. Pub. Sts. c. 121, § 10 ; also, debts for medical services rendered by a physician in regular standing, and medicines furnished by him. Darling v. Andrews, 9 Allen, 106. Clothing and household furniture may or may not be neces- saries according to the circumstances ; and whether they are so is generally a question of fact for the jury. Leonard v. Stptt, 108 Mass. 46 ; Baynes v. Bennett, 114 Mass. 424. Where a debt for necessaries is merged in a judgment, the claim ceases to be " for necessaries." Bangs v. Watson, 9 Gray, 211. For special provisions concerning tender, when wages are attached, see Tender, jpost. No assignment of future earnings is 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. Pub. Sts. c. 183, § 39. An assign- ment made for the purpose of preventing them from being attached by trustee process is void. Gragg v. Martin, 12 Allen, 498; Ouimet v. Sirois, 124 Mass. 162; O'Connor v. Gavan, 126 Mass. 117. The word " earnings " in the section cited above embraces a larger class of credits than would be included in the terra "wages." It is not limited to gains from personal labor 58 MASSACHUSETTS PEACTICE. alone, but signifies compensation for services, and may in- clude expenditures as well as labor. Jenks v. Dyer, 102 Mass. 235 ; Somers y. Keliher, 115 Mass. 165 ; Jason v. Antone, 131 Mass. 534. Ally person claiming, under an assignment from the defend- ant or otherwise, the funds attached in the hands of the trustee, is entitled to appear and maintain his right, as a party to the suit, for the purpose of determining the validity and amount of his claim, and may allege and prove any facts not stated nor denied by the supposed trustee. Pub. Sts. c. 183, § 36. Dennis V. Twitchell, 10 Met. 180 ; Boylen v. Young, 6 Allen, 582. If the trustee has notice of such a claim, he should inform the court, by his answer, of its existence, and see that the owner of the claim is notified of the pendency of the trustee suit. If the claimant does not voluntarily appear, notice for that purpose may be issued and served on him in such manner as the court may direct. Pub. Sts. o. 183, §§ 35 ; Wardle v. Briggs, 131 Mass. 518. If a valid assignment of the funds is disclosed, the trustee will be discharged, even if there is no claimant in court, or if the assignee has been defaulted after notice to him. Taylor V. Collins, 5 Gray, 60 ; Richards v. Stephenson, 99 Mass. 311 ; Fuller V. Storer, 111 Mass. 281, 282. If a trustee answers admitting funds and a claimant is summoned in who appears and disclaims all right, the trustee should be charged. Mortland v, Little, 137 Mass. 340, But see Taylor v. Collins, 9 Gray, 50 note. In the Municipal Court of the City of Boston, a claimant is required to " file a statement of the particulars of his claim whpn he enters his appearance, and shall have the opening and close." Rule XXX. The same rule is in force in dis- trict and police courts. Rule VIII. If an adverse claimant appears, he is entitled to be heard, even if the trustee is defaulted ; but ordinarily except in the matter of costs, no judgment can be entered in favor of the COMMON WRITS — TRUSTEE PEOCESS. 59 claimant by name. Tlie proper form of proceeding is for the court to order that the trustee be discharged, so far as the claimant is deemed to have maintained his claim. Gif- ford V. Backett, 119 Mass. 71 ; Butler v. Frank, 128 Mass. 29 ; Peck V. Stratton, 118 Mass. 406. The claimant will not be permitted to show that at the time of service on the trustee, the latter had no effects or credits. Clc(,rk v. Gardner, 123 Mass. 358, See Sheehan v. Marston, 132 Mass. 161 ; Moors V. Goddard, 147 Mass. 287. If it appears that the claimant holds a valid assignment from the principal defendant, and that such assignment is held only as security for a debt, the court, upon request of the plaintiff, will proceed to ascertain a,nd determine the amount due upon such debt at the time of the service of process upon the trustee ; and the claimant is entitled to judgment a,nd execution for his costs, and for any sum of money so found to be diie him. Pub. Sts. c. 183, § 38, amended by St, 1888, c. 345. After the judgment and execution have been satisfied, the excess, if any, in the hands of the trustee will be subject to the trustee process in the same manner and with the same effect as if no such s,ssignment existed. St. 1888, c. 345 ; Darling v. Andrews, 9 Allen, 106; Warren v. Sullivan, 123 Mass. 283 ; Giles v. Ash, Ibid. 353. But if it appears that a trustee has been defaulted, and that judgment has been ren- dered against him thereon, and that he had in his hands goods, effects, or credits liable to the attachment, and that he has paid any part thereof on the execution issued on the original judgment, he will be liable to the adverse claimant only for the excess in his hands above the amount so paid. St. 1888, c. 345. When a person summoned as trustee is defaulted for non- appearance, or appears by his answer to be possessed of effects of the defendant, the judgment of the court is that he be charged. When the trustee has appeared, a motion to charge him is necessary, otherwise not. 60 MASSACHUSETTS PRACTICE. Although the amount for which the trustee is chargeable need not be specified in the judgment (Pub. Sts. c. 183, § 44), but may be left to be ascertained upon scire facias, yet it may be, and often is, ascertained before the first judgment, and, if actually so tried and determined, the plaintiff is not entitled as of right to contest it anew upon scire facias. Brown v. Tweed, 2 Allen, 566. When a bond has been given in accordance with Pub. Sts. c. 183, § 71 by a person interested in the funds held by the trustee, and the trustee is defaulted, the plaintiff, before taking judgment against the defendant, should have the court deter- mine and fix a specified sum for which the trustee is charged. If he fails to do this, he will lose his remedy on the bond. Cunningham v. Hogan, 136 Mass. 407. The plaintiff cannot take judgment against the principal defendant, and afterwards against the trustee ; and, therefore, it follows that if a trustee is discharged by order of the court, and the plaintiff appeals, he should have the case continued for judgment against the principal defendant until the question of the trustee's liability shall be finally determined. If he neglects to do so, and takes final judgment and execution against the defendant before the trustee has been charged, he will be considered, by so doing, to have waived all further proceedings against the latter as much as if he had entered of record a discontinuance or release. Jarvis v. Mitchell, 99 Mass. 530. A judgment against a trustee by a court having jurisdiction, no appeal being taken by the defendant, discharges the former from all demands by the defendant, or by his executors or administrators, for all money or effects paid, delivered, or ac- counted for by the trustee by force of such judgment, if the judgment is valid on its face, although in fact erroneous. Pub. Sts. c. 183, § 48 ; Wehster v. Lowell, 2 Allen, 123 ; leon- ard v. I^ew Bedford Five Cent Savings Bank, 116 Mass. 210. But see Loring v. Folger, 7 Gray, 505. EEPLEVIN. 61 If the plaintiff prevails in the suit, he should take out exe- cution and have a formal demand made upon the trustee within thirty days from the entry of the judgment, since at the expiration of that time the funds become liable to another attachment, whether made before or after the judgment ; or if there is no such second attachment, the defendant may thereupon sue the trustee. Pub. Sts. c. 183, §§ 45-47. Burnap V. Campbell, 6 Gray, 241. As to scire facias against a trustee, see Scire Facias. BEPLEVIN. Replevin is the only form of action at law by which a party can obtain possession of specific goods and chattels unlawfully taken or wrongfully detained from the rightful owner or person entitled to the possession. Pub. Sts. c. 184, § 10; Lathropv. Bowen, 121 Mass. 107 ; Simpson v. WFarland, 18 Pick. 427. It is often resorted to, instead of an action of tort in the nature of trover, for the purpose of trying the title to chattels. It may, however, be maintained by one who has but a special property in the goods, with a right of possession ; and the owner must also have the right of immediate possession. Tyler v. Freeman, 3 Cush. 261 ; Collins v. Evans, 15 Pick. 63 ; Wade V. Mason, 12 Gray, 835 ; Lane v. Chadwick, 146 Mass. 68. A mortgagee who has been summoned as trustee on a writ against the mortgagor cannot replevy the goods from the officer while the attachment continues. Furher v. Dearlorn, 107 Mass. 122. A tenant in common of chattels cannot main- tain replevin against his co-tenant, because neither has a right to exclusive possession. Wills v. Noyes, 12 Pick. 324. But an agreement between the owners may give one of them a right to exclusive possession, or an interest equivalent to a special property in the goods sufficient to support the action. Rich V. Ryder, 105 Mass. 306. See Bartlett v. Kidder, 14 Gray, 449; Leonard v. Whitney, 109 Mass. 265. A part-owner of a chattel cannot maintain replevin for the 62 MASSACHUSETTS PRACTICE. whole chattel, at least when the non-joinder of the other owners is pleaded. HaH v. Fitzgerald, 2 Mass.* 609 ; Hackett v. Potter, 131 Mass. 50 ; Fay v. Duggan, 135 Mass. 242. Replevin can be directed against such parties only as have the property in their possession or under their control, and it transfers the possession to the plaintiff, during the pendency of the suit, substituting a personal security in the form of a bond to the defendant for the return of the property, if the court so orders. Riohardson v. Beed, 4 Gray, 441 ; Hall V. White, 106 Mass. 599 ; Billings v. Thomas, 114 Mass. 570. A demand is not necessary before bringing the writ. Freelove v, Freelove, 128 Mass. 190; Edmunds v. Hill, 133 Mass. 445. Replevin lies, in the first place, to recover possession of beasts 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 ; secondly, for other personal property of a value greater than twenty dollars. Pub. Sts. c. 184, §§ 1, 10. If the property, other than beasts, sought to be recovered, does not exceed in value twenty dollars, no court in the Com- monwealth can take cognizance of the matter by issuing a writ of replevin. King v. Dewey, 11 Gush. 218 ; Octo v. Tea- han, 133 Mass. 430, 431 ; Davenport v. BurTce, 9 Allen, 116. Articles of clothing and jewelry carried or worn upon the person cannot lawfully be replevied, because, otherwise, the officer might be brought " in direct contact with the citizen, under circumstances well calculated to excite irritation and anger, and lead directly to breaches of the peace." Maxham V. Day, 16 Gray, 213.i 1 Tn this case the article sought to be replevied was a diamond pin worn, in the shirt bosom, and thus worn for the sole purpose of keeping it beyond the reach of legal process. The court, notwithstanding, ap- plied the rule laid down above, saying that there was a complete and adequate remedy in equity under Pub. Sts. c. 151, § 2, cl. 4, which gives the Supreme Judicial Court jurisdiction in equity of " suits to compel the REPLEVIN. 68 When goods, of a value greater than twenty dollars, 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. Pubi Sts. c. 184, § 10 ; Perry v. Richardson, 9 Gray, 216. ' Replevin of beasts distrained or impounded must be brought, in the first instance, before a trial justice or district, police, or municipal court, subject, however, to removal to the Superior Court, if it appears that the sum demanded for the penalty, forfeiture, or damages exceeds one hundred dollars, or that the property of ttie beasts is in question, and that their value exceeds one hundred dollars. Pub. Sts. c. 155, § 12 ; c. 184, §§ 1, 9 ; St. 1893, c. 396, § 12 ; Sackett v. Kellogg, 2 Gush. 88. Writs of replevin for goods must, in all cases, be made returnable in the county in which the goods are detained. Pub. Sts. c. 184, § 11. Trial justices,' and district, police, and municipal courts have jurisdiction exclusive of the Superior Court when the value of the property does not exceed one hundred dollars. Octo V. Teahan, 133 Mass. 430. Trial justice^ have concur- rent jurisdiction with the Superior Court when the value exceeds that amount, and is not greater than three hundred dollars. Pub. Sts. c. 155, § 13. District and police courts and the Municipal Court of the City of Boston have concur- rent jurisdiction with the Superior Court when the value exceeds one hundred dollars, but does not exceed one thou- sand dollars. St. 1893, c. 396, § 12. The question of jurisdiction is determined by the value of the goods at the time of issuing the writ. Davenport v. Burke, 9 Allen, 116. The writ need not contain any allegation of re-delivery of goods or chattels taken or detained from the owner, and secreted or withheld so that the same cannot be replevied." See Strick- land V. Fitzgerald, 7 Cush. 530. 64 MASSACHUSETTS PEACTICE. their value.i Blahe v. Darling, 116 Mass. 300. If there is such an allegation, it may be admissible as evidence against the plaintiff, but is not conclusive. Clap v. Guild, 8 Mass. 153 ; King v. Dewey, 11 Gush. 218. The value may be deter- mined by the agreement of the parties, Leonard v. Hannon, 105 Mass. 113 ; or it may be proved at the trial. Davenport V. Burke, 9 Allen, 116. When the parties cannot agree as to the value of the prop- erty, the statutes provide for an appraisal by three disinter- ested persons appointed and sworn by the officer. Pub. Sts. c. 184, §§ 4, 12. Their estimate thus obtained is useful for determining the value of the property, in order to fix the pen- alty of the bond, but is not conclusive of the question of juris- diction; and whenever it appears, either upon a plea in abatement, or at the trial, or otherwise, that in fact the valiie was not such as to give the court jurisdiction, the action will be dismissed. Davenport v. Burke, uU supra; Leonard v. Hannon, uhi supra. Before the writ can be served, or at least before the deliv- ery of the property to the plaintiff, the plaintiff or some one in his behalf is required to execute and deliver to the officer a bond running to the defendant, with two or more sufficient sureties, to be approved by the officer, or by the defendant in writing, or by a master in chancery, in a penalty (expressed in dollars) double the value of the property to be replevied, and witli condition as in the form hereinafter given. Pub. Sts. c. 184, §§ 3, 12, 18; TFoleott v. Mead, 12 Met. 516; Clark V. Conn. Eiver B. B. Co., 6 Gray, 363; Claflin v. Thayer, 13 Gray, 459. 1 When service is to be made by a constable, it may be necessary that the writ should contain an allegation of the value of the goods ; but if, in fact, it appears by the agreement of the parties, or by the appraise- ment, that the value was such as to bring the case within the limited authority of a constable, an allegation of value may be added by amend- ment by leave of court. Pomeroy v. Trimper, 8 Allen, 398 ; Litchman v. Potter, lit) Mass. 371 ; Pub. Sts. c. 27, §§ 113, 114. EEPLEVIN. 65 Objections to the formal sufficiency of the bond must be made either by motion to dismiss or by answer in abatement ; and in either case the judgment of the Superior Court on the matters involved is final. Houghton v. Ware, 113 Mass. 49 ; Smith V. Dexter, 121 Mass. 597. But even if the bond is shown to be defective in form or substance, if the court or justice is satisfied that it was intended in good faith as a com- pliance with the law, the plaintiff may be allowed to file a new bond. Pub. Sts. c. 184, § 21. Beplevin Writ. Commonwealth of Massachusetts. Suffolk, ss. To the Sheriff of our County of Suffolk, Greeting. We command you that you replevy the goods following, viz. : One bay horse belonging to A. B., of Boston, in said County, plaintiff, now detained by C. D., of said Boston, at Boston, in the county aforesaid, and them deliver unto the Said plaintiff. Provided the same are not taken and detained upon mesne process, warrant of distress, or upon execution, as the property of the said plaintiff, and summon the said CD., that he appear before our justices of our Superior Court, next to be holden at Boston, within and for our said County of Suffolk, on the first Mon- day of October next, to answer unto the said plaintiff, in an action of replevin, for that the said C. D., on the 12th day of September current, at said Boston, unlawfully, and without any justifiable cause, took the goods of the said plaintiff, as aforesaid, and them unlawfully detained to this day, to the damage of the said plaintiff, as he says, in the sum of Three Hundred dollars. Provided he, the said plaintiff, shall give bond to the said CD., with sufficient sureties, to be approved by you, in double the value of the said goods, to prosecute the said replevin to final judgment, and to pay such damages and costs as the said C D. shall recover against him, and also to return the same goods, in case such shall be the final judgment. And have you there this writ, with your doings herein, together with the bond you shall take. "Witness, A. M., Esquire, at Boston, this 14th day of September, in the year of our Lord one thousand eight hundred and ninety- three. J. A. TV., Clerk. 66 MASSACHUSETTS PKACTICE. Beplevin Bond. Know all men by these presents, that we, A. B., of Boston, in the county of Suffolk, as principal, and E. F. and G. H., both of said Boston, as sureties, are holden and stand firmly bound unto C. D. of said Boston, in the sum of Three Hundred dollars, to the payment of which to the said C. D., or his executors, ad- ministrators, or assigns, we hereby jointly and severally bind our- selves, our heirs, executors, and administrators. The condition of this obligation is such, that whereas the above bounden A. B., on the fourteenth day of September current, sued out a writ of replevin returnable before the Superior Court to be holden at Boston, within and for the county of Suffolk, on the first Monday of October next : Now if the above bounden A. B., shall prosecute said action of replevin to final judgment, and shall pay such damages and costs as the said D. C. shall recover against him, and shall also return the property replevied, in case such shall be the final judgment, then this obligation shall be void, otherwise it shall be and remain in full force and virtue. In witness whereof we hereunto set our hands and seals this fifteenth day of September, a. d. 1893. A. B. [seal.] E. F. [seal.] G. H. [seal.] Suffolk, ss. Boston, Sept. 18, 1893. The above-named sureties are approved. J. S., Master in Chancery. For an historical account of the changes in the form of replevin writs under our statutes, see Pomeroy v. Trimper, 8 Allen, 398. Writs of return and writs of reprisal or withernam, are little used. For the forms of such writs, reference is made to St. 1789, c. 26, where they may be found at length. If it appears upon the default of the defendant, or upon trial, or otherwise, that the beasts were taken or distrained without any sufficient or justifiable cause, or that the goods in question were unlawfully taken or attached, or unlawfully detained by tlie defendant, the plaintiff is entitled to judgment REPLEVIN. 67 for his damages caused by the taking or detention, or both, as the case may be, and for his costs of suit. Pub. Sts. c. 184, §§ 8, 17. In most cases the plaintiff's damages are merely nominal, but, even without any allegation of special damage, he is en- titled to recover such sum for the detention as the use of the property would have been worth to him during the time it was detained, due regard being had to its nature and condi- tion. Glarh v. Martin, 120 Mass. 543. See Gordon v. Jenny, 16 Mass. 465. If, on the other hand, it appears upon the nonsuit of the plaintiff, or upon a trial, or otherwise, that the beasts were lawfully taken or distrained, the defendant is entitled to judg- ment for the sum found to be due from the plaintiff for the penalty or forfeiture, or for the damages for which the beasts were impounded, together with all the legal fees, costs, charges, and expenses incurred by reason of the distress, and also the costs of the action of replevin ; or, instead thereof, the defendant may have judgment for a return of the beasts, to be held by him irrepleviable by the plaintiff, and for his damages for the taking thereof by the replevin, together with his costs. Pub. Sts. c. 184, §§ 6, 7. So, also, in replevin of goods, if it appears that the defend- ant is entitled to a return of the goods, he will take judgment accordingly, with damages for the taking by the replevin, with his costs. Ibid. § 13. Where the damage to the defendant consists merely in the detention of property without waste or depreciation, or in the enforced postponement of the exercise of his rights under legal process, interest upon the value of the goods for the time during which he has been delayed is considered ample indemnity. But cases may arise when this rule of damages would not adequately compensate the defendant or furnish him indemnity for the wrong suffered. Stevens\. Tuite, 104 Mass. 328 ;. Pub. Sts. c. 184, § 14. 68 MASSlCHUSETTS PKAOTICE. The damages, whether for the plaintiff or the defendant, are assessed by the jury at the trial of the cause, if there is a jury trial ; otherwise they are assessed upon an inquiry by the court or justice, or by a jury impanelled for the purpose. Pub. Sts. c. 184, § 23. If the action fails merely because of its being prematurely begun, the judgment will be for nominal damages only, and the costs of suit, but not for a return. Martin v. Bayley, 1 Allen, 381. Whether or not a return shall be ordered rests largely in the discretion of the court; and it sometimes happens that by a change of circumstances since the suit was begun, it becomes useless and improper to render such judgment as seems to be required by the state of the record. The general rule is, that when the defendant prevails on the issues of property and right of possession, or when the plaintiff for any reason fails to sustain his action, the defend- ant is, prima facie, entitled to a return, and his motion therefor will be granted, unless it is made to appear to the court that the case falls within one of the exceptions to the general rule. Johnson t. Neale, 6 Allen, 227 ; Hallett v. Fowler, 10 Allen, 36 ; Bartlett v. Brickett, 98 Mass. 521 ; Barry v. O'Brien, 103 Mass. 520. The question whether the defendant is entitled to have a judgment for return is determined by the state of facts, con- cerning the possession and right of possession, at the time of the hearing upon the motion. Ware Biver B. B. Co. v. Vib- bard, 114 Mass. 458. And if it appears that the title of the defendant, though good as against the plaintiff at the time the action was brought, or his right of possession, has termi- nated since that time ; or if, in point of fact, the property has gone into the possession of the true owner, no return will be ordered. Whitwell v. Wells, 24 Pick. 25 ; Dawson v. Wether- bee, 2 Allen, 461 ; Lowe v. Brigham, 3 Allen, 429. When the action is dismissed without the filing of an SUMMARY PROCESS FOR THE RECOVERY OF LAND. 69 answer, the defendant should file, simultaneously with his motion for a return, a suggestion of his ownership, whether general or special, with a prayer for a return. Lowe v. Brig- ham, 3 Allen, 429, As to the effect of a return of goods that were held under attachment or on execution when they were replevied, see Pub. Sts. c. 184, § 24. Upon judgment for a return, the defendant is entitled to a writ of return ; and if the officer to whom this writ is com- mitted cannot find the property replevied, so as to deliver it to the defendant, he makes a return of that fact, and the defendant may then have, on motion, a writ of reprisal, to take the.beasts or goods of the plaintiff and deliver them to the defendant, to be held and disposed of according to law. Pub. Sts. c. 184, § 25. After an unsuccessful resort to these remedies of return and reprisal, or before resorting to them, the defendant may bring suit on the bond ; or he may sue on the bond after the return day of the writ of return, and before asking for a writ of reprisal. Ibid. § 27 ; Parker v. Simonds, 8 Met. 205. In order to hold the sureties on the bond, the writ must be served on them within one year after the final judgment in the action of replevin, and the action on the bond must be entered within one year after the end of the term at which the action of replevin ought to have been entered. Pub. Sts. c. 184, § 22. SUMMARY PROCESS FOR THE RECOVERY OP LAND. This action is sometimes called "ejectment," but it is wholly different from the common-law action of ejectment, which, says Blackstone, " lieth where lands or tenements are let for a term of years ; and afterwards the lessor, rever- sioner, remainder-man, or any stranger, doth eject or oust the lessee of his term." 3 Blackstone, Com. 199. In practice. 70 MASSACHUSETTS PRACTICE. this latter proceeding was the common method of trying the title to lands or tenements. It is not in use in Massachusetts. Summary process lies, under our statutes, First, — When a forcible entry into lands or tenements has been made, or when a peaceable entry has been made and the possession is unlawfully held by force. Pub. Sts. c. 175, § 1 ; Hodgkins v. Price, 132 Mass. 196 ; Lawton v. Savage, 136 Mass. 111. Woodside v. Bidgway, 126 Mass. 292. ' In this Commonwealth, as well as in England, the remedy for a forcible entry unlawfully made is twofold : by indict- ment at common law and by proceeding under the statute. A mere unlawful entry on the land of another, with tech- nical force and arms, but not accompanied by acts beyond a simple trespass, is not indictable, since, in order to maintain an indictment, the entry must be accompanied by circum- stances tending to excite terror in the occupant, and to pre- vent him from niaintaining his right, such as apparent violence, unusual weapons or attendance, menaces, or other acts which give reasonable cause for fear that the party entering will do some bodily injury to the occupant if he does not give up possession. And the same kind and degree of force are necessary in forcible detainer as in forcible entry. Commonwealth v. Shattuck, 4 Cush. 141 ; Same v. Dudley, 10 Mass. 403. In Williams v. McGaffigan, 132 Mass. 122 (1882), it was decided that, with the exception of landlords and mort- gagees, one who had never been in possession could not avail himself of this remedy ; but see St. 1891, c. 354. One tenant in common may maintain the action against his co-tenant if the latter forcibly keeps him out of possession of the premises, since both co-tenants have the same right to possession. Presbrey v. Presbrey, 13 Allen, 281 ; explaining Ki%g V. Bickerman, 11 Gray, 480. But one co-tenant, who is put in possession under a judgment against the other, cannot hold such possession exclusively, the judgment being that he be put in joint possession. SUMMARY PROCESS FOR THE RECOVERY OF LAND. 71 Second, — When the lessee of lands or tenements, or a person holding under such lessee, holds possession without right after the determination of a lease by its own limitation, by notice to quit, or otherwise. Pub. Sts. c. 175, § 1. This is sometimes called " landlord and tenant process," and pre- supposes the existence of the relation of landlord and tenant. Dakin v. Allen, 8 Cush. 33. This class includes those cases where upon neglect or re- fusal to pay the rent due, according to the terms of a written lease, the lessor has given the tenant fourteen days' notice to quit, in writing. If, however, the tenant in such a case pays or tenders the landlord or his attorney the rent due, with interest thereon, and costs of suit, four days, at least, before the return day of the writ, the lease remains in force. Pub. Sts. c. 121, § 11. Also included are cases where a tenant or occupant, under a lawful title, uses the premises for prosti- tution, lewdness, or illegal gaming, or for the illegal keeping or sale of intoxicating liquors. Pub. Sts. c. 101, § 8. The possession of a tenant at will is not the possession of his lessor, so as to enable the latter to maintain this action against a stranger for expelling his tenant. Commonwealth V. Bigelow, 3 Pick. 32. A tenant by sufferance, as when a landlord by giving a written lease terminates the tenancy at will of one holding under him, is not entitled to notice to quit ; and the action may be commenced against such a tenant immediately upon the delivery of the lease. Benedict v. Morse, 10 Met. 223, and cases cited. But such a tenant is entitled to notice of the lease before legal process can be commenced against him, and to a reasonable time in which to remove his family and prop- erty. The form of notice is immaterial. Furlong v. Leary, 8 Cush. 409. No notice to quit is necessary, as a foundation to this action, against a lessee who has knowingly underlet the prem- ises to be used for the illegal sale of intoxicating liquors, and 72 MASSACHUSETTS PRACTICE. allows them to be so used. See Pub. Sts. c. 101, § 8 ; Pres- cott V. Kyle, 103 Mass. 381. The suit cannot be maintained if the defendant or his an- cestors, or those under whom he holds the premises, have been in quiet possession for three years next before the beginning of the suit, unless his estate therein is ended. Pub. Sts. c. 175, § 10. And, under an answer denying that he holds the premises unlawfully or against the right of the plaintiff, the defendant may show that he has been in adverse possession for three years. Mitchell v. Shanley, 12 Gray, 206. Third, — The action lies in favor of the person entitled to the premises when a mortgage of real estate has been fore- closed by a sale under a power contained therein, or other- wise. Pub. Sts. c. 175, § 1. Before the passage of this statute (St. 1879, c. 237), neither tlie purchaser under a power of sale nor the mortgagee could avail himself of this remedy before taking possession. Boyle V. Boyle, 121 Mass. 85 ; Woodside v. Bidgway, 126 Mass. 292. The action may be brought before a district, police, or municipal court or trial justice, in the county where the prem- ises are situated, and in the court, if any, in whose district the premises lie. Pub. Sts. c. 175, §§ 2, 3 ; St. 1893, c. 396, § 13. The following form of writ, being that used in the Muni- cipal Court of the City of Boston, answers the requirements of the statute, and is used for all three classes of cases cov- ered by the statute. No other declaration is required than that contained in the writ. Pub. Sts. c. 175, § 2 : — Commonwealth of Massachusetts. Suffolk, ss. To the Sheriff of our County of Suffolk, or his Deputy, or any Constable of the City of Boston, within our said County, Greeting. We command you to summon A. B. of Boston, aforesaid, de- fendant (if he may be found in your precinct), to appear before SUMMARY PROCESS FOR THE RECOVERY OP LAND. 73 our Justices of the Municipal Court of the City of Boston, to be holden at said Boston within and for said County of Suffolk, for civil business, on Saturday, the ninth day of December current, at nine of the clock in the forenoon ; then and there to answer to the complaint of C. D., of said Boston ; for that the said defendant, on the day of the date hereof is in possession of a certain tract or parcel of land [describing it] which he holds unlawfully and against the right of the said plaintiff, as it is said, and shall then and there appear. And have you there this writ, with your doings therein. Witness, "W. E. P., Esquire, at Boston, aforesaid, the first day of December, in the year of our Lord one thousand eight hundred and ninety-three. J. F. B., Clerk. If the defendant is defaulted, or if it appears on trial that the plaintiff is entitled to possession, the latter has judgment and execution for possession and for his costs. If the plain- tiff becomes nonsuit, or fails to prove his right to possession, the defendant is entitled to judgment and execution for his costs. Pub. Sts. c. 175, § 5. One occupying land under a parol lease from a tenant at will is estopped to deny his lessor's right to recover posses- sion by summary process ; and, if in such a case the plaintiff obtains a verdict, a subsequent entry of the superior landlord and recovery of possession by him is no bar to a judgment for the plaintiff. Cohurn y. Palmer, 8 Cush. 124. See Hawes v. Shaw, 100 Mass. 187. Tlie fact that a plaintiff, after suit commenced, has taken possession of the demanded premises, will not abate the action, but the plaintiff will be entitled to judgment for costs, rent, and damages under the recognizance. Hebron Church v. Adams, 121 Mass. 257. See Crosby v. Wentworth, 7 Met. 10 ; King v. Lawson, 98 Mass. 309. When the plaintiff's estate determines during the pendency of the suit, so that judgment cannot be given to put him in possession, nevertheless, if he had a good cause of action 74 MASSACHUSETTS PRACTICE. when the proceedings were begun, he is entitled to costs and to such judgment also as will entitle him to the benefit of his recognizance and for payment of rent, down to the time when his estate terminated. King v. Lawson, 98 Mass. 309 ; Blish V. Harlow, 15 Gray, 316. FORMS AND ISSUING OF SPECIAL WRITS. 75 CHAPTER III. FORMS AND ISSUING OF SPECIAL WRITS. SCIRE FACIAS. A WRIT of scire facias is in form an order for the defendant to appear upon the return day of the writ and show cause why certain things should not be done. No attachment of property or arrest of the person can be made upon it. " Originally a scire facias was a judicial writ ; and it is so still in its principal characteristics. 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." Shaw, C. J., in WGee V. Barler, 14 Pick-. 212. See Osgood v. Thurston, 23 Pick. 356 ; Gray v. Thrasher, 104 Mass. 373, 375. The following are the principal cases in which scire facias may issue : — (1.) To obtain a new execution on an unsatisfied judg- ment, concurrently with an action of contract on the original judgment, after the expiration of the time allowed for taking out execution. Pub. Sts. c. 171, § 17. Where a writ of scire facias to obtain an alias execution, after alleging an amount to be due upon an unsatisfied judg- ment in excess of the amount for which it was rendered, prayed for an execution for the amount of the judgment then due, and judgment was entered on the scire facias that " an alias execution issue as prayed for in said writ," it was held that the judgment on the scire facias went no further 76 MASSACHUSETTS PRACTICE. than to authorize a new execution as provided by Gen. Sts. c. 103, § 22, then in force, for the amount of the original judg- ment, without interest or costs ; and that an execution was void which had issued for such amount, with interest from the time the judgment was rendered. Hasketl v. lAttlefield, 155 Mass. 320. (2.) Concurrently with an action of contract on a poor debtor's recognizance, if the recognizance is of record in the court from which the scire facias is sued, but not otherwise. See Sewall v. Sullivan, 108 Mass. 356, and cases cited. (3.) After suit on an administrator's or executor's bond, judgment for plaintiff, and execution awarded, a scire facias may be sued out on the original judgment, upon a new breach of the condition of the bond, to obtain a new execution. And if a creditor, next-of-kin, legatee, or other person interested in the estate, after such an execution awarded, has a claim for further damages on account of the maladministration of the executor or administrator, he may sue out a scire facias, in like manner. Pub. Sts. c. 143, § 23. (4.) In favor of or against an administrator de bonis non, upon the death or removal of a former executor or adminis- trator, to obtain a new execution. Pub. Sts. c. 166, § 13. (5.) When an execution against an executor or adminis- trator, for a debt due from the estate of the deceased, is returned unsatisfied, the creditor may, upon a suggestion of waste, sue out a scire facias against the executor or adminis- trator. Ibid. § 10 ; St. 1893, c. 396, § 14. (6.) After a levy on real estate, and return of the execu- tion, if it appears to the creditor that the property levied on, or any part thereof, cannot be held thereby, a seire facias may be issued from the court or justice whence the execution issued, and the levy of the former execution may be set aside, and a new one issued for the amount then due on the original judgment. Pub. Sts. c. 172, § 53. (7.) If, after judgment in an action on a bond, or to recover FORMS AND ISSUING OF SPECIAL WRITS. 77 a penalty for the non-performance of a covenant, contract, or agreement, a further sum afterwards becomes due on such bond or other contract, for breach thereof, scire facias lies against the obligor to show cause why an execution for such further sum should not issue on the original judgment. Pub. Sts. c. 171, § 11. (8.) If an execution is returned satisfied in whole or in part by the sale of property not liable to such execution, and if damages are recovered against the judgment creditor, or the officer who served the execution, on account of the seizure and sale of the property, the creditor may have a scire facias on his judgment, and shall thereupon be entitled to a new execution for the sum remaining justly due him. Ibid. § 18. (9.) And the creditor may have a like x-emedy in a case where an execution against a corporation is satisfied in whole or in part by service or levy on the person or property of a member thereof, and the property levied on, or damages for service or levy, are subsequently recovered by such member from the officer or judgment creditor. Ibid. § 19. (10.) It seems that scire fabias lies concurrently with an action of contract on a bond given on appeal by a defendant in summary process for the recovery of land. Pub. Sts. c. 175, § 6 ; St. 1888, c. 325, § 1 ; Melvin v. Bird, 131 Mass. 561. (11.) Concurrently with an action of contract on the judg- ment, a creditor may have scire facias against a debtor on his escape from arrest or commitment on execution. Pub. Sts. c. 162, § 66. (12.) Scire facias against the delinquent party is a proper remedy in case of non-payment of instalments of alimony, but not the exclusive remedy. Morton v. Morton, 4 Cush. 518 ; Slade V. Slade, 106 Mass. 499. (13.) A bail-bond is so far a matter of record and of the nature of a recognizance, that the creditor may have a writ of scire facias in his own name against the bail, from the court in which the judgment against the principal is rendered, in 78 MASSACHUSETTS PRACTICE. vacation or term time ; but no such action can be maintained unless the writ is served on him within one year after the rendition of final judgment against the principal. Pub. Sts. c. 163, §§ 8-10. (14.) Scire facias will also lie against an indorser of a writ, the proceeding being closely analogous to that against bail. M'Gee v. Barber, 14 Pick. 212 ; Buggies v. Ives, 6 Mass. 494. But to hold such an indorser the action must be brought within a year after the original judgment. Pub. Sts. c. 161, § 24. See Indorsement, and Merrill v. Lamson, 138 Mass. 115; Sherlurne v. Shepard, 142 Mass. 141. (15.) 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 facias 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 defendant. Pub. Sts. c. 183, §§ 50-54 ; Gwptill v. Ayer, 149 Mass. 49. The writ must be served on the defendant within two years after the rendition of judgment in the original suit, except that if the money or other thing is not payable when the judgment is rendered, the writ may be maintained if served within one year after such money or other thing becomes payable. Pub. Sts. c. 183, § 54. Writs of scire facias are ordinarily made returnable at the regular return days of the court from which they issue. The service is made by an attested copy of the original writ, and the provisions of law as to indorsement for costs apply to them. Pub. Sts. c. 161, § 24. Following is a general form of a writ of scire facias upon a judgment of more than a year's standing : — FORMS A.ND ISSUING OF SPECIAL WRITS. 79 COMMONWIJALTH OF MASSACHUSETTS. Suffolk, SS. To the Sheriffs of ow severed Counties, or their Deputies, Greeting. Whereas A. B. of Boston, in said Suffolk, before our Justices of our Superior Court, holden for and within our said County of Suffolk, at Boston, on the first Monday of January, in the year of our Lord one thousand eight hundred and ninety-one, by the consideration of our said Justices, recovered against C. D., of said Boston, the sum of one hundred and thirty- three dollars and thirty-three cents, debt or damage, and also twelve dollars and fifty cents, for costs and charges by him about his suit in that behalf expended, whereof the said C. D. is convict, as to us appear^ of record [and although judgment be thereof rendered, yet the execution for said debt or damage doth yet remain to be made whereof the said A. B. has 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 C. D. , that he be before our Justices of our said Superior Court, to be holden within and for said County of Suffolk, at Boston, on the first Monday of July next, to show cause (if any he has) where- fore the said A. B. ought not to have his execution against him the said C. D. for his debt or damage, and costs aforesaid ; and further to do and receive that which our said court shall then con- sider ; and there and then have you this writ with your doings therein. Herein fail not. Witness, A. M., Esquire, at Boston, the first day of June, in the year of our Lord one thousand eight hundred and ninety-two. J. A. W., Clerk. The above form may be so altered as to serve in a variety of cases. A writ of scire facias against a trustee recites, in the place of the words enclosed in brackets above, the proceedings, in the original judgment, as follows: — And whereas, by the consideration of the same Court, execution was likewise awarded for the same sums against the goods, effects, and credits of the said CD. in the hands and possession of E. F., 80 MASSACHUSETTS PRACTICE. trustee of the said C. D. as to us appears of record ; and whereas the said A. B. afterwards, on the first day of April, a. d. 1891, purchased out of the Clerk's oflice of our said Court our writ of execution upon that judgment, in due form of law, returnable into the Clerk's office of our said Court, at Boston, within our said County of Suffolk, in sixty days from the date thereof, directed to the Sheriffs of our several counties or their deputies, or any con- stable of our City of Boston, commanding him to serve, execute, and return the same, according to the precept thereof ; and the said writ of execution was afterwards on the same day delivered to one T. F., a deputy of the Sheriff of our County of Suffolk, duly authorized to serve the same, who afterwards, on the same day, required the said E. F. to discover, expose, and subject the goods, effects, and credits of the said C. D. in his hands, to be taken in execution for the satisfaction of the said judgment, which the said E. F. then and there refused to do. Whereupon the said T. F. returned the said writ of execution into our said Clerk's office of our said Superior Court, at Boston, within our said County of Suffolk, in sixty days from the date thereof, and returned thereon that [here insert the officer's return on the original writ] by means of all which the said A. B. is in danger of losing all benefit from said judgment, so recovered as aforesaid, and has made application to US to provide a remedy for him in that behalf. A scire facias against bail follows the general form, insert- ing the recital of facts, as follows, in place of the words inclosed in brackets in the form first given above : — Whereof the said C. D.^ is convict, as to us appears of record ; And whereas E. F. of said Boston, at Boston, on the first day of November, a. d. 1890, became bail and surety for the said C. D. upon the original writ on which the said judgment was given, not only for his appearance to answer to the said suit, but to abide the final order and the judgment of the Court thereon and not avoid. And whereas our writ of execution hath issued upon said judg- ment according to law, to wit, on the first day of April, a. d. 1891, directed to the Sheriffs of our several counties or their deputies, or any constable of our City of Boston, which was afterwards on the FORMS AND ISSUING OF SPECIAL WRITS. 81 same day, delivered to T. F., a deputy of the Sheriff of our County of Suffolk, then by him to be served, executed, and returned according to law ; and the said CD. has avoided so that his goods, lands, or chattels cannot be found to satisfy the execution aforesaid, nor his body found to be taken therewith. And the said T. F. hath returned upon the said writ into our Clerk's office of our said court, at Boston, in our County of Suffolk aforesaid, in sixty days from the date thereof, when and where the same writ was returnable, that [here insert the officer's return on the exe- cution], and so returned it in no part satisfied : And the said A. B. says that the said judgment aforesaid is still altogether unsatisfied and remains in full force, whereof the said A. B. has supplicated us to provide a remedy for him in this behalf. For form of a scire facias ad audiendum errores, see Error, post. HABEAS CORPUS. The writ of habeas corpus issues as of right, in favor of all persons imprisoned or restrained of their liberty, excepting : (1) 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 ; (2) persons convicted, or in execution upon legal process, civil or criminal ; and (3) persons committed on mesne process in a civil action, on which they were liable to be arrested and imprisoned, unless when excessive and un- reasonable bail is required. Pub. Sts. c. 185, §§ 1, 2.^ 1 It is provided that any court or magistrate authorized to take juris- diction of poor debtor proceedings may issue a writ of habeas corpus when necessary to bring before such court or magistrate for examination a defendant or debtor imprisoned on mesne process or execution, and the proceedings provided for in Pub. Sts. c. 185, are to be followed in such cases, so far as the same are applicable. St. 1888, c. 419, § 12. Bat a commitment of a poor debtor to jail for contempt, under St. 1890, c. 128, is merely a proceeding in aid of other statutoiy remedies for the collec- tion of judgment debts, and the debtor may obtain his discharge in any of the ordinary methods applicable to the case of an arrest on execution ; so that habeas corpus will not lie for the relief of the debtor so imprisoned. Kerrigan's Case, 158 Mass. 220. 6 82 MASSACHUSETTS PRACTICE. On a healing on a writ of habeas corpus, the power of the court to hear and determine questions involving the consti- tutionality of a statute is fully established. While the court at such a hearing will not ordinarily consider questions arising in a criminal case, which might be brought up on bill of excep- tions, under special circumstances such questions were enter- tained, the court saying that, with reference to the mode of procedure, the case was not to be considered as establishing a precedent. Commonwealth v. Huntley, 156 Mass. 236. The writ of habeas corpus cannot perform the functions of a writ of error, in relation to proceedings of a court within its jurisdiction. So it was held that a juvenile offender sentenced by an inferior court to be " committed to the State Board to be sent to the Lyman School " for breaking and entering, and placed "in that school under a mittimus issued after the St. 1886, c. 101, § 5, took effect, which, omitting to state his age, ordered his delivery to the State Board of Health, Lunacy, and Charity, could not be discharged on habeas corpus, his remedy being by writ of error. Sennotfs Case, 146 Mass. 489. As to the writ of " personal replevin " (^de homine replegi- ando), and the form thereof, see Pub. Sts. c. 185, §§ 40-55. This writ issues as of right in favor of a person imprisoned, restrained of his liberty, or held in duress, unless in the cus- tody of some public officer of the law, by force of a lawful warrant or process, civil or criminal, issued by competent authority. See Williams v. Blunt, 2 Mass. 207 ; Wood v. Ross, 11 Mass. 271 ; Aldrich v. Aldrich, 8 Met. 102. It is provided that nothing contained in Pub. Sts. c. 185, " shall be construed to authorize the taking of a person by writ of habeas corpus out of the custody of the United States marshal or his deputy holding him by legal and sufficient process issued by any court or magistrate of competent juris- diction : provided, however, that this shall not affect the authority of the Supreme Judicial Court or of its justices . . . to investigate and determine upon the validity and legal effect FORMS AND ISSUING OF SPECIAL WEITS. 83 of any process which may be relied on to defeat the writ, or upon any other matter properly arising." Ibid. § 39. The writ may be issued by any court of record or justice thereof, or by a justice of the peace if no justice of a court of record is known to him to be within five miles of the place where the party is imprisoned or restrained; and the writ may be issued without regard to the county in which the party is imprisoned. Pub. Sts. c. 185, § 3. Application for the writ must be made in writing to some court or magistrate authorized to issue it by the complainant himself, or by some one in his behalf, and 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. The following form of complaint contains all the necessary allegations. Ibid. § 4 : — To the Honorable the Justices of the Supreme Judicial Court : Complains A. B., of Boston, in the County of Suffolk, that he is unlawfully restrained of his liberty at said Boston by F. H. S. of said Boston ; that the pretence of such restraint, according to the belief of your complainant, is [a certain warrant or order, whereof a copy is hereto annexed, purporting to have been issued by the Governor of this Commonwealth ; that the said warrant or order has been issued without authorityof law, improvidently, and in violation of the laws of the United States, and of this Commonwealth]. Wherefore he prays that a writ of habeas corpus may issue, and for such other relief as to your Honors may seem meet, to the end that the complainant may obtain his liberty. A. B. Suffolk, ss. Nov. 10, 1893. Subscribed and sworn to before me. E. F. , Justice' of the Peace. See McOonologue's Case, 107 Mass. 154. In Commonwealth v. Moore, 19 Pick. 389, it was said that when the writ is issued by any other magistrate than a justice of the Supreme Judicial Court, it should appear on the face 84 MASSACHUSETTS PRACTICE. either of the petition or the writ itself, that a case exists giv- ing jurisdiction to the magistrate to issue the writ. This is still true in respect of writs issuing from a justice of the peace, but of no others, since all justices of a court of record have now a jurisdiction in the premises, which at the date of the above decision was confined, unless for cause shown, to justices of the Supreme Judicial Court. When it appears from the petition that the prisoner would be remanded if brought before the court, the writ will be refused. Sims's Case, 7 Cush. 286. A judgment on habeas corpus remanding the prisoner is not, as matter of law, a bar to subsequent proceedings of the same kind, founded on the same facts ; and, a fortiori, such a judg- ment remanding a judgment debtor arrested on execution is not a bar to an action brought by him against the judgment creditor for assault and false imprisonment. Bradley v. Beetle, 153 Mass. 154, and cases cited. Except when the process is issued for the purpose of admit- ting a prisoner to bail, or to bring in a poor debtor for exami- nation (see St. 1888, c. 419, § 12), or to secure the presence of a party as defendant or witness at the trial of a cause in the court from which the writ issues, the writ must be made re- turnable forthwith, at such place as shall be designated in the writ, before the Supreme Judicial Court, or some justice thereof, in term time or vacation. Pub. Sts. c. 185, § 5. The following form of writ is prescribed (Ibid. § 6) in cases of imprisonment or restraint by a person not a sheriff, deputy sheriff, or jailer, of this State, but it seems that the same may properly be used in any case. Commonwealth of Massachusetts. Suffolk, ss. To the Sheriffs of our several Counties and to their respective Deputies, Greeting. We command you that the body of A. B. of Boston, in the County of Suffolk, by F. H. S., of said Boston, imprisoned FORMS AND ISSUING OF SPECIAL WEITS. 85 and restrained of his liberty as it is said, you take and have before C. A. Esquire, a Justice of our Supreme Judicial Court at Boston, within and for the County of Suffolk, immediately after the 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 F. H. S. then and there to appear before our said justice, to show the cause of the taking and d,etaining of said A. B. And have you there this writ with your doings thereon. Witness, W. A. F. Esq., at Boston, this tenth day of November, in the year of our Lord one thousand eight hundred and ninety- three. J. N., Clerk.i Return of Officer serving the Writ. Suffolk, ss. Boston, Nov. 10, 180^. By virtue hereof, I now have the body of the within named A. B. before this Honorable Court, and I have summoned the within named F. H. S. to appear and answer as within ordered. T. F., Deputy Sheriff. The person having the prisoner in charge is required to make a plain and unequivocal statement in writing of his doings upon the writ to the court or justice before whom it is returnable, which return or statement must be signed and sworn to, unless the person making it is a sworn public officer, and makes it in his official capacity. Pub. Sts. c. 185, §§ 12, 13. The omission to make such a return does not impair the effect of a discharge ordered by the court or justice after hear- ing both parties. McGoniologue' s Case, 107 Mass. 154. The return is not conclusive of the facts stated in it, but the court will proceed to inquire into all the alleged causes of de- tention, and decide upon them in a summary manner, and may, if occasion requires it, adjourn the examination, and, in the meantime, bail the party, or commit him to a general or special custody, as the age, health, sex, and other circumstances 1 When the writ is issued by the court in session, it must be signed by the clerk, otherwise by the magistrate who issues it. Pub. Sts. c. 185, ^ 7. 86 MASSACHUSETTS PRACTICE. of the case may require. Commonwealth v. Ayres, 18 Pick. 193, 206. If the court to which the writ is returnable is adjourned before the writ is returned, the return is to be made before any one of the justices of the court ; and if the writ is returned before a justice at a time when the court is in session, such justice may adjourn the case into court, to be there heard and determined in the same manner as if the writ had been re- turned into court. Pub. Sts. c. 185, § 16. If the prisoner is confined in a common jail or in the cus- tody of a civil officer, the ofi&cer is not bound to obey the writ unless a sum suflScient to pay the expense of bringing the prisoner into court, such sum to be previously ascertained and certified by the court or magistrate granting the writ, be first paid or tendered the officer. Pub. Sts. c. 185, § 10. Notice of the pendency of the proceedings under the writ must, in certain cases, be given to parties in interest, and, when the party is imprisoned on a criminal accusation, to the attorney-general. The prisoner may be bailed if the alleged offence is bailable, or he may be bailed to appear from day to day. Ibid. §§ 19-22 ; Emery's Case, 107 Mass. 172, 186, note. If the party suing the writ appears to be lawfully impris- oned or restrained, and is not entitled to be enlarged on giving bail, the judgment rendered is that he be remanded to the person from whose custody he was taken, or to such other person or QfiBcer as is by law authorized to detain him. If no legal cause is shown for his imprisonment or restraint, the court or judge must discharge him therefrom. Pub. Sts. c. 185, §§ 24, 25. The judicial discharge of a person upon habeas corpus con- clusively determines that he was not liable to be held in cus- tody on the state of facts then existing, McConologue's Case, 107 Mass. 154 ; and no exception lies to the discharge of a prisoner upon habeas corpus, even if such discharge is ordered by a single judge. Wyeth v. Bichardson, 10 Gray, 240. FORMS AND ISSUING OF SPECIAL WRITS. 87 Habeas Corpus ad Testificandum. The following is a form of a writ of habeas corpus ad testifi- candum, which is used when the production of a witness held in jail or prison under legal duress is desired. See Pub, Sts. c. 185, § 29 : — Commonwealth op Massachusetts. Suffolk, ss. To the Sheriff of our County of Suffolk, and the Underheeper of our Jail in said County, Greeting. We command you that the body of C. D., detained in our prison under your custody, as it is said, by whatsover name the said C. D. shall be called, you have under safe and secure conduct before our justices of our Superior Court, holden at Boston, within and for our County of Suffolk, immediately after the receipt of this writ, to testify in a certain action depending in our said Court and then and there to be heard and tried between A. B. and E. F. And immediately after the said C. D. shall then and there have given his testimony before our said justices, that you return him the said C. D. to our said prison under safe and secure conduct. Hereof fail not ; and have there this writ. Witness, A. M., Esquu-e, at Boston aforesaid, the fifteenth day of March, in the year of our Lord eighteen hundred and ninety- two. J. A. W., Clerk. AUDITA QUERELA. "An audita querela is where a defendant, against whom judgment is recovered, and who is therefore in danger of execu- tion, or perhaps actually in execution, may be relieved upon good matter of discharge which has happened since the judg- ment, as if the plaintiff hath given him a general release, or if the defendant hath paid the debt to the plaintiff, without procuring the satisfaction to be entered on the record. . . . It also lies for bail, when judgment is obtained against them by scire facias to answer the debt of their principal, and it 08 MASSACHUSETTS PRACTICE. happens afterwards that the original judgment against their principal is reversed." 3 Blackstone, Com. 406. This writ is now seldom used. It will not lie when the complaint is based upon an error apparent on the record (a writ of error being the proper remedy in such a case), or when the party has had opportunity to take advantage of the matter complained of, and has neglected it. See Dingman v. Myers, 13 (?ray, 1. The writ may be sued out and served like an original writ of summons or attachment, and must be indorsed like an original writ. Pub. Sts. c. 186, §1; c. 161, §24. When brought to prevent, set aside, or annul proceedings upon a judgment or executio^i, it issues from and is made 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 would lie between the parties, and issues from and is returnable to the Superior Court. The proceedings in rela- tion to pleas, answers, appeal, and other matters are, so far as they are applicable, the same as in other civil actions. Pub. Sts. c. 186, §§ 1-3. If the plaintiff in the audita guerela is imprisoned under the process complained of, he may be enlarged upon giving a bond to the defendant, in such sum as the court shall order, with two or more sureties, to pay the amount of the execution, with costs, or surrender himself within thirty days after judgment shall be rendered against him on the audita querela. If judg- ment is for the plaintiff, he will recover proper damages against the defendant. The questions of law or fact raised on the writ, or on nonsuit or default (in which latter cases the hearing will be ex parte'), are for the court, and such judg- ment will be rendered as law and justice shall require. Ibid. §§1-5. An appeal lies from the decision of a judge of the Superior Court upon agreed facts on an audita querela. White v. Clapp, 8 Allen, 283. FORMS AND ISSUING OF SPECIAL WRITS. 89 A judgment for the plaintiff in audita querela is conclusive only of matters alleged by the plaintiff as the ground of his action, and material to the issue. See Baker v. Tompson, 151 Mass, 390. The following is substantially the form of a writ of audita querela, as prescribed by St. 1780, c. 47, § 4 : — Commonwealth of Massachusetts. Suffolk, ss. To the Sheriffs of our several Counties or their Deputies, Greeting. We command you to attach the goods or estate of A. B., of Boston, to the value of five hundred dollars, and [for want thereof to take 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 Superior Court next to be holden at Boston, within and for our County of Suffolk, on the first Monday of October next, then and there in our said court to answer unto the grievous complaint of C. D., of Boston, who complaineth and saith [here insert the declaration] ; by all which the said C. D., as he saith, is damaged in the sum of five hundred dollars, as shall then and there be made to appear. And have you there this writ, with your doings therein. Witness, A. M., Esq., at Boston, this first day of August, in the year of our Lord one thousand eight hundred and ninety- two. J. A. W., Clerk. The capias clause, enclosed in brackets above, may be stricken out, and the words " to summon " and " to appear " inserted, making the writ one of summons and attachment. And the precept for attachment and the capias may both be stricken out, making the writ a summons merely. St. 1780, c. 47, § 7 ; and see Ibid. § 6, for form of summons to be served on the respondent when his goods and estate are attached. At any time after the issuing of a writ of audita querela, the court or a justice thereof, in term time or vacation, may issue any writ of injunction which the nature of the case and justice and equity may require. Pub. Sts. c. 185, § 6. 90 MASSACHUSETTS PRACTICB. CERTIORARI. The writ of certiorari issues from and is returnable to the Supreme Judicial Court. It is directed to an inferior tribunal, and commands such tribunal to certify and return its records of a cause or proceedings to the Supreme Judicial Court. It is the remedy for the correction of errors in law committed by tribunals whose proceedings are not according to the course of the common law, and must be addressed to the court hav- ing the custody and control of the record of the proceedings objected to. Pub. Sts. c. 186, § 7 ; Farnvington Biver Water Power Company v. County Commissioners, 112 Mass. 206, and cases cited. The method of correcting erroneous judgments afforded by certiorari is complementary to that furnished by a writ of error, the latter being the remedy when the judgment com- plained of was rendered by a court proceeding according to the course of the common law, and certiorari being the only method of correcting error when the court below proceeded in a course different from that of the common law. Commorv- wealth V. Mlis, 11 Mass. 465. If county commissioners fail to perform a legal duty, either judicial or ministerial, mandamus lies to compel them to do so. If in the performance of a legal duty they have com- mitted an error in law, or have failed to proceed in all respects according to law, certiorari lies to quash, affirm, or amend their proceedings. Brewer v. Boston, Clinton & Fitchburg Railroad Co., 113 Mass. 52, 56. Certiorari, and not mandamus, is the proper remedy, if a board of public officers, required by statute to perform, a certain duty, do not refuse to act, but proceed to act in a way not justified by a correct construction of the statute. Cam- bridge V. Railroad Commissioners, 153 Mass. 161. Whether a sewer assessment, purporting to be laid under the authority of a certain statute, is void because the scheme FORMS AND ISSUING OF SPECIAL WKITS. 91 adopted is not in accordance with the provisions of that statute ; and whether the statute itself is constitutional, are questions not open upon the trial of a petition in the Superior Court for a jury to revise the assessment, and can properly be raised only by certiorari. Snow v. Fitchhurg, 136 Mass. 179, and cases cited. And where a city laid out a way forty feet wide across a railroad at grade, under an order of the county commissioners authorizing the way to be laid out fifty feet wide, it was held that the only remedy of the railroad company was by a petition for a writ of certiorari. Old Colony B. B. v. Fall Biver, 147 Mass, 455. Certiorari will not lie to quash the proceedings of the municipal authorities of a city in appointing a police officer, in alleged violation of the St. 1884, c. 320, for the improve- ment of the civil service of the Commonwealth. Attorney- General V. Northampton, 143 Mass. 589. Upon a petition to the Superior Court for a jury to assess damages caused by the relocation of a way, it is not open to the petitioner to object that proper notice was not given him of such relocation, an action of tort, or certiorari, being the remedy, if any, for a defective notice. Murray v. Norfolk, 149 Mass. 328. So, in an action to recover the amount of a betterment tax assessed for street improvements in a city, and paid under protest, the orders for the improvements passed by the city council cannot be impeached for defects alleged to exist in the form of the notices preceding them ; but such defects are to be taken advantage of by certiorari only. Foley v. Haverhill, 144 Mass. 352. See also Brimmer V. Boston, 102 Mass. 19; Taber v. Mw Bedford, 137 Mass. 162 ; Sisson v. New Bedford, 137 Mass. 255 ; Gilkey v. Water- town, 141 Mass. 317. Parties who have not a private remedy for damages for the acts of a legally existing public board, as county com- missioners, are not entitled to maintain a petition for a writ of certiorari to quash the proceedings complained of. 92 MASSACHUSETTS PKACTICE. Davis V. County Commissioners, 153 Mass. 218 ; and see Brain- ard V. Connecticut River B. B., 7 Gush. 506 ; Chandler v. Bailroad Commissioners, 141 Mass. 208; Hammond v. County Commissioners, 154 Mass. 509. So where a petition was brought by residents of a town, who were legal voters and owners of real estate therein, for a writ of certiorari to quash the proceedings of the Board of Railroad Commissioners approving the relocation of two stations on the line of the railroad and the union of them in one station, it was held that the petition must be dismissed, since none of the peti- tioners were parties to the original proceedings before the board, and none of them were entitled to a private remedy if the action of the board was unauthorized or illegal. Cun- ningham V. Railroad Commissioners, 158 Mass. 104. The writ cannot issue unless applied for within six years next after the proceedings complained of. Pub. Sts. c. 186, §11. The writ of certiorari does not issue as of right, but upon petition to the Supreme Judicial Court, which may be pre- sented to a justice thereof, in any county, in term time or vacation. The justice to whom the petition is presented may, upon due notice to all parties by a rule to show cause, hear and determine the questions arising on the petition, or he may reserve questions of law arising thereon, on exceptions or otherwise, for the determination of the full court. If it be 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. Ibid. § 8. Notice of the petition may, in the discretion of the court, be ordered to a person or corporation that was adversely in- terested at the hearing below; but notice to show cause against the issuing of the writ must be given to the tribunal to which the writ, if granted, will be addressed. Worcester & Nashua Bailroad Co. v. Bailroad Commissioners, 118 Mass. 661. FOKMS AND ISSUING OF SPECIAL WRITS. 93 Upon the petition, as well as ,upon the final adjudication when the writ is granted, the court may, in its discretion, award' costs against any party who appears to maintain or to object to the proceedings. And the court or a justice thereof may, at any time after the issuing of the writ or pending an application therefor, in term time or vacation, issue any in- junction which the nature of the case and justice and equity may require. Pub. Sts. c. 186, §§ 10, 12. The petition being addressed to the discretion of the court (^Farmington Biver Water Power Co. v. Gownty Commissioners, 112 Mass. 206, and cases cited), it was held in Browne v. Sihipson, 2 Mass. 441, and other early cases, that no excep- tion or appeal would lie, upon the refusal of the writ. As before the Statute of 1873, o. 355, the hearing on the petition must have been had before the full court, the forbidding of an exception or appeal could work no injustice to the par- ties. It is now provided, as stated above, that the hearing and determination on the petition may be had before a single justice, subject to exceptions in matters of law. Pub. Sts. c. 186, § 8. The early cases held that upon a petition for certiorari the court would look into the record, and even into the circum- stances attending the process ; because when the record was actually returned in obedience to the certiorari, the court were bound either to quash or affirm the whole proceedings. Fx parte Weston,,!! Mass. 417. But it is now provided that when the proceedings of any tribunal are brought up on certiorari, the court may quash or affirm such proceedings, or enter such judgment as the court below should have rendered, or make such order, judgment, or decree in the premises as law and justice may require. Pub. Sts. c. 186, § 9. The result may thus be embodied in a new judgment, framed so as to secure the rights of all parties, or the court may vacate the illegal proceedings and allow the tribunal below to correct the judg- ment. Thus, if the proceedings of an inferior court are erro- 94 ■ MASSACHUSETTS PRACTICE. neous only in awarding costs, a writ of certiorari may be issued for the sole purpose of correcting this error, allowing the proceedings of the court in all other parts to stand. Young v. Blaisdell, 138 Mass. 344. Upon any petition, the court will examine the equities of the case, and if it appear that no substantial injustice has been done, the writ will not issue for mere error in the forms of proceeding, nor when the parties cannot be placed in statu quo. Weston, ex parte, 11 Mass. 417 ; Farmington Biver Water Power Co. v. County Commissioners, 112 Mass. 206 ; Brewer v. Boston, Clinton & Fitchhurg Bailroad Co., 113 Mass. 52, 57, and cases cited. The petition for certiorari should set forth the proceedings and allege error in the record, but no special assignment of errors is necessary. A copy of the record is ordinarily annexed to the petition, but, if not so annexed, must be produced by the respondent. The answer of the respondent, when it states any facts, is in the nature, not of an allegation of a party, but of an official return conclusive of all matters of fact within the jurisdiction of the inferior tribunal, and should be signed by the members of the tribunal, and not by attorney. See Tewksbury v. County Commissioners, 117 Mass. 563; Lowell v. County Commis- sioners, 146 Mass. 403. Thus, if a petition for a writ of certiorari is reserved by a single justice of the Supreme Judi- cial Court for the consideration of the full court, upon the petition and answer, and the report of certain evidence, the allegations of the answer in matters of fact are to be taken as true, except in so far as these are controlled by the evi- dence reported. Dickinson v. Worcester, 138 Mass. 555 ; Collins V. HolyoTee, 146 Mass. 298. The answer of county commissioners to a petition for a writ of certiorari should at least set forth a copy of their record, to which they may, if they see fit, add a return or certificate of their rulings and of the facts proved, so far as FORMS AND ISSUING OF SPECIAL WRITS. 95 essential, which, as well as the record, will be conclusive as to matters of fact, within their jurisdiction, passed upon by them ; and they may, besides, allege and prove extrinsic facts to show that substantial justice does not require that their proceedings be quashed, and such allegations may be trav- ersed. But a statement in such an answer to a petition for a writ to quash their proceedings in refusing to abate a tax, that all their doings and rulings were correct and legal, and that they did not err in law, either in admitting or excluding testimony, or in refusing to make an abatement, as alleged by the petitioner, and the further statement that certain evi- dence, admitted against the objection of the petitioner, was disregarded in their final consultations and in their determi- nation, and did not affect the result to which they arrived, is not conclusive upon the petitioner. Haven v. County Gom- missioners, 156 Mass. 467. When a question of law only is intended to be raised upon the allegations of the petition and the record annexed, an answer in the nature of a demurrer may be filed by attorney, but it must be the demurrer of the members of the tribunal. No other party can be a respondent in the case, or file an answer or demurrer. But, according to usage, the counsel of the person or corporation interested in maintaining the pro- ceedings sought to be quashed will be allowed to appear, by the permission and in the name of the respondents, to oppose the petition. Worcester & Nashua Railroad v. Bailroad Com- missioners, 118 Mass. 561; Tewksbv/ryY. County Commissioners, 117 Mass. 563. In the latter case, and in Chase v. Aldermen of Springfield, 119 Mass. 556, an answer to the petition, con- taining allegations and denials of matters of fact, and signed by counsel, was adjudged irregular. Those composing the tribunal may, in addition to their re- turn, allege and prove extrinsic facts tending to show that substantial justice • does not require that the proceedings should be quashed. And this is so, although the persons 96 MASSACHUSETTS PRACTICE. composing the tribunal at the time the answer is filed are not those who composed it at the time of the act complained of. While the petitioner cannot introduce evidence to con- tradict the record or return in matters of fact, any extrinsic evidence introduced by the respondent tribunal may be re- butted by him. The answer should state facts, and not mat- ters which the respondents deem likely to occur; but an irregularity of statement in this respect will afford no ground for granting the writ, if, after the objectionable statements in the answer are stricken out, the answer discloses sufficient grounds for dismissing the petition. Fairbanks v. Mayor & Aldermen of FitMurg, 132 Mass. 42. The uniform practice of the Supreme Judicial Court for many years has been to hear the whole case upon the peti- tion, in order to avoid unnecessary delay and expense to the parties, and to enable the court to deal with the substantial justice of the case, untrammelled by merely formal and tech- nical defects in the record. Farmington Biver Water Power Go. V. County Commissioners, 112 Mass. 206. At the hearing upon the petition, the petitioner should, in the first instance, exhibit the record, and point out in what particulars he considers it erroneous or defective, and then the respondents may prove, by extrinsic evidence, that no injustice has been done ; that, if the proceedings shall be quashed, the parties cannot be put in statu quo ; or that, for any good reason, a certiorari ought not to be granted. If such evidence is offered by the respondents, the petitioner has a right to rebut it by like evidence. Ibid. p. 214. The following is a general form of the writ of certiorari : — Suffolk, ss. Commonwealth of Massachusetts. To We, being willing for certain causes to be cer- tified of the proceedings, order, and judgment upon the which as it is said was at a holden FORMS AND ISSUING OF SPECIAL 'WEITS. 97 Command you that the said [proceedings, complaint, order, and judgment] , with all things touching the same, fully and entirely as the same remain before you, by -whatever names the parties are called therein, you send before us in our Supreme Judicial Court, to be holden at Boston, within and for our County of Suffolk, on the first Monday of September next, under 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, W. A. F., Esquire, at Boston, this first day of July, A. D. 1892. J. N., Clerk. The court may order that the writ shall contain a precept to the inferior tribunal to certify the record, together with a statement of the ruling below on the point set out in the peti- tion. If such a precept is desired, it seems that a prayer therefor should be inserted in the petition. Mendon v. County Commissioners, 2 Allen, 463 ; Farmington River Water Power Co. V. County Commissioners, 112 Mass. 206, 217. A writ of certiorari may be used as ancillary to a writ of error, for the purpose of obtaining the whole record from the court below. See Crimm, v. Commonwealth, 119 Mass. 326. MANDAMUS. The writ of mandamus is a command directed to any person, corporation, or inferior court of judicature, requiring them to do some particular thing therein specified which appertains to their office and duty, and which the court issuing it has previ- ously determined, or at least supposes, to be consonant to right and justice. It is a writ of a most extensive remedial nature, and issues in all cases where the party has a right to have anything done, and has no other specific means of com- pelling its performance. 3 Blackstone, Com. * 110. Its opera- tion is not confined to cases of a public nature, or to public corporations. It has been often issued in cases where the corporation partook very slightly, if at all, of a public char- acter, and where the controversy was rather upon some matter 7 98 MASSACHUSETTS PEACTICE. of private right. American Railway Frog Go. v. Haven, 101 Mass. 398. The specific cases in which it has been held, in this State, that mandamus would or would not lie, are collected in the digests under the title Mandamus. The commonest cases are those in which the writ issues to county commissioners, to compel them to perform some duty required of them by law ; or to a corporation, to restore to his corporate rights a member of the corporation who has been wrongfully excluded there- from. It does not lie to revise or control the action of a tribunal upon a matter wholly within its discretion. Gray v. Bridge, 11 Pick. 189. Thus the Superior Court cannot be compelled by mandamus to enter a judgment in accordance with a rescript of the Supreme Judicial Court, when it appears to the satisfaction of the former court that, by mistake of parties or coTinsel or misunderstanding of the court, an essen- tial question of fact in the case has not been tried. Piatt v. Justices of the Superior Court, 124 Mass. 353. It was held that mandamus would not lie to compel the city council of Boston to make sufficient appropriations for the construction of a park as contemplated by the St. 1875, c. 185. Boston Water Power Co. v. Boston, 143 Mass. 646. See Foster \. Park Commissioners, 138 Mass. 334. It is doubtful whether the writ can be granted, directed to an official whose term of office has expired since the filing of the petition. See Attorney-General v. Mayor of New Bedford, 128 Mass. 312, and cases cited. Although the use of the writ of mandamus to try the title to an office is not usual, yet it may be resorted to as being the best and speediest method of settling the dispute of two rival claimants to a municipal office. Keough v. Rolyoke, 156 Mass. 403 ; Luce v. Board of Examiners, 153 Mass. 108 ; Bus- sell V. Wellington, 157 Mass. 100. So it seems that mandamus will lie to enforce the right of a person duly elected county commissioner to act as such, and to restrain an intruder from FOKMS AND ISSUING OF SPECIAL WRITS. 99 performing the duties of the office. Luce v. Board of Exami- ners, 153 Mass. 108. See the same case, as to the form of the return of the election board of a town. The writ of mandamus is not a writ of right, and is only granted in 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 circumstances of the case under consideration, it ought to be granted. 'Murray v. Stevens, 110 Mass. 95. Thus, it was held that mandamus ought not to issue to compel the marshal of a city to station a police officer at a certain place in accordance with an order of the board of aldermen ; applications for the writ being addressed to the sound judicial discretion of the court. Alger v. Seaver, 138 Mass. 331. The court will not grant the writ unless satisfied that it is necessary to do so in order to secure the execution of the laws. But when the person or corporation against , whom the writ is demanded has clearly manifested a deter- mination to disobey the laws, the court is not obliged to wait until the evil is done, before issuing the writ. Attorney-General V. Boston, 123 Mass. 460, 474. Proceedings. The proceedings in mandamus begin with a petition for a writ, addressed to the Supreme Judicial Court. This may be presented to any justice of tlie court, in term time or vacation, and in any county. Pub. Sts. c. 186, § 13 ; Boston & Albany Railroad v. County Commissioners, 116 Mass. 73, 83. The petition should set forth fully the facts upon which it is founded, specify the relief desired, and conclude with a prayer for the writ. The following is the formal part of such a petition in a case where the writ is asked to restore the petitioner to Ms rights as a member of a corporation : — 100 MASSACHUSETTS PRACTICE. To the Honorable the Justices of the Supreme Judicial Court. The petition of A. B., of Boston, in the county of Suffolk, for a writ of mandamus against the S. S. S., a corporation having its usual place of business in said Boston. Respectfully showeth your petitioner that [here insert a recital of the facts relied on, as the existence of the corporation, that the petitioner is a member thereof, and the acts of the corporation by .which he has been debarred from his just privileges therein.] Wherefore your petitioner respectfully prays this Honorable Court ' to issue its writ of mandamus 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. The petition .should be verified by the affidavit of the peti- tioner to the effect that the matters subscribed to are true, so far as they depend on his own knowledge, and that, so far as they depend upon information and belief, he believes them to be true. The petition being entered, the court will issue an order to show cause why the writ should not issue directed to the re- spondent, and to be served upon him.' The hearing upon such a petition may be had in any county. The justice to whom the petition is presented may, upon due notice to all parties, hear and determine 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 require. If on such hearing it is ordered that the writ issue, it may be issued from the clerk's office in iiny county, and made returnable as the court shall direct. Pub. Sts. c. 186, § 13. 1 It seems that a rule to show cause why the writ should not issue is not such a writ or process as is required by the statute to be under seal of jthe court and the test of the first justice thereof. See Taylor v. Henry, 2 Pick. 398. FORMS AND ISSUING OF SPECIAL WEITS. 101 The following are the formal parts of the first writ of mandamus : — Commonwealth op Massachusetts. Suffolk ss. To a. B., C. D., and E. F. [additions,] Whereas, [Here insert a recital of the doings which furnish the grounds for issuing the mandamus as alleged in the petition.] We, therefore, willing that due and speedy justice may be done in this behalf, command you that [here insert the command] and that you proceed therein as by law required, or signify to us cause to the contrary, lest by your default complaint should come to ua repeated. And how you shall execute this our command certify to us at our Supreme Judicial Court next to be holden at Boston, within and for our county of Suffolk, aforesaid, on the first Mon- day of September next. Witness, W. A. F., Esquire, at Boston, this first day of July, A. D. 1892. J. N., Clerk. The above is called the alternative ma'ndam,us, as it directs the respondent either to obey the command of the writ, or show cause to the contrary. When the first writ issues, the person to whom it is directed must make return thereto and the person suing the writ may by answer traverse any material facts contained therein, or may demur thereto.^ Pub. Sts. c. 186, § 14. The return to the alternative writ should contain a full and certain answer to all the averments made by the petition and a fair legal reason for disobeying the mandamus. Springfield V. Hampden, 10 Pick. 69. If an insufficient reason for dis- ' " At common law, there was no traverse to the return upon a writ of mandamus. The utmost certainty was required in such returns. For any failure in this respect the objection was taken by way of exceptions to the sufficiency of the return. If the party suing the writ desired to falsify the return, he could only do so by an action on the case." Lunt v. Davison, 104 Mass. 498, 500. Under our statutes no action can be main- tained for a false return. Pub. Sts. c. 186, § 14. 102 MASSACHUSETTS PRACTICE. obeying the writ is returned, there issues, in the second place, a peremptory mandamus to do the thing absolutely, to which no other return will be admitted, but a certificate of perfect obedience and due execution of the writ. See 3 Blackstone, Com. * 111. If issue has been joined on the return by the filing of a demurrer or answer thereto by the original peti- tioner, and the petitioner maintains the issue on his part, judgment will be rendered that a peremptory writ of manda- mus be granted, and also for damages and costs. But if the petitioner fails to maintain the issue, the party making the return is entitled to his costs. Pub. Sts. c. 186, § 14. If a third person claims to have any right or interest in the subject-matter of the petition, the court may make a rule, directed to him, to show cause against the issuing of the writ. If he appears,! he will be heard in such manner as the court may direct, and in proper cases will be allowed to make the return to the first writ, and to stand as the real party in the proceedings. If he be so admitted, the proceedings will not abate or be discontinued by the death, resignation, or removal from office by lapse of time or otherwise, of the person to whom the writ was directed, and any peremptory writ will be directed to his successor. Ibid. §§ 15, 16, EBROR. At common law a writ of error would lie only for some supposed mistake in the proceedings of a court of record upon matter of law arising upon the face of the proceedings, so that no evidence is required to substantiate or support it. 3 Blackstone, Com. * 407. The error might be in the founda- tion proceedings, judgment, or execution, but it must appear upon the record* and must be in substance.^ Tidd, Pr. 1051, 1055. 1 Judgments of a court of competent jurisdiction, which are erroneous by reason of defect of process or insufficiency or want of service, can be impeached by the parties thereto only by proceedings instituted' directly FORMS AND ISSUING OF SPECIAL WRITS. 103 But under the practice in this Commonwealth, the plaintiff in error may allege matters of fact to annul the judgment complained of, when such matters, if proved, will lead to the conclusion of law that such judgment was wrongfully ob- tained, and such allegations of fact are to be tried with a jury ; and, upon the finding of the jury, the court will affirm or annul the judgment complained of, according as such facts are, or are not, found by the jury. See Eliot v. McCormick, 141 Mass. 194, and other cases cited, post, p. 108. Error lies from the Supreme Judicial Court to an inferior court of record ^ in any case where the proceedings are accord- ing to the course of the common law. Martin v. Common- wealth, 1 Mass. 347 ; Pub. Sts. c. 150, § 3. It lies only after judgment, and in this particular differs from certiorari, which may issue at any stage of the proceedings complained of. Browne v. Stimpson, 2 Mass. 441. While a State may make laws binding its own citizens, requiring them to resort for remedy to a writ of error, it can- not so bind citizens of other States. Thus, it was held that, under the fourteenth article of the Amendments of the Con- stitution of the United States, a defendant in an action brought in this Commonwealth upon a domestic judgment in personam against him might set up in defence that he was, at the time when the original action was brought, a non-resident, and neither was served with process personally, nor appeared therein; and that he was not obliged to resort to a writ of error to invalidate the judgment. Needham v. Thayer, 147 Mass. 536. for that purpose. The plaintiff is concluded by such judgment. His demand is merged in it. He cannot treat it as a_ nullity, and proceed again upon his original demand as if no such judgment had been ren- dered. Hendrick v. Whitlemore, 105 Mass. 23. 1 A justice of the peace exercises his jurisdiction mainly according to the course of the common law; his court is, for many purposes, a court of record to which a, writ of error will lie. Hendrick v. Whitlemore, ubi supra, and cases cited. 104 MASSACHUSETTS PRACTICE. No judgment will be reversed for defect or imperfection in matter of form which might have been cured by amendment, nor by reason of a mistake respecting the venue of the action, nor because the judgment is not in conformity with the alle- gations of the parties, if it is in conformity with the verdict, nor for error in law, occurring before verdict, in any civil case in which the defendant appeared. But either party may, at any stage, assign error affecting the jurisdiction of the court. Pub. Sts. c. 187, § 3 ; c. 167, § 82. It is the general rule that a writ of error will not lie to reverse a judgment which might have been appealed from. Monk V. Guild, 3 Met. 372 ; Mlis v. Bullard, 11 Cush. 496 ; Bay- mond v. Butterworth, 139 Mass. 471. But persons who had no notice of the suit, or were incompetent to act, may main- tain the writ, as they have had no opportunity to appeal. Thus, the writ will lie to reverse a judgment against an infant who has no probate guardian, or guardian ad litem appointed to defend the action, where the right of appeal subsisted, since the infant could not appeal. Valier v. Hart, 11 Mass. 300 ; Crockett v. Brew, 5 Gray, 399 ; Johnson v. Waterhouse, 152 Mass. 585. And if a party has agreed that he will not appeal from the judgment of the court below, he may have a writ of error after judgment against him. Butnam v. Churchill, 4 Mass. 517. If one of several defendants had notice of the action and might have appealed, his neglect cannot bind his co-defendants who had no notice, and they must join him in the writ of error. Oay v. Bichardson, 18 Pick. 418. A right to file exceptions is not equivalent to a right of appeal, so far as the allowance of a writ of error is concerned. Hemmenway v. Hicks, 4 Pick. 497. Judgment will not be reversed or arrested on a writ of error by reason of any error or defect, unless the writ is sued out within six years after the entry of judgment, except when an action of contract or writ of scire facias is brought on a FOKMS AND ISSUING OF SPECIAL WRITS. 105 judgment, in which case a writ of error to reverse the judg- ment may be taken out at any time within six years after the bringing of the action of contract or scire facias. Pub. Sts. c. 187, § 4. All the individuals comprising the party plaintiff or defend- ant, who are aggrieved by the judgment must be joined in a writ of error to reverse it, if living, and if any of them be dead, liis representatives must be joined. This is the rule, even if some should choose to abide the alleged erroneous judgment, in which case a summons and severance of such as choose not to prosecute the suit will be ordered. But when there are several privy to a judgment, who have each a dis- tinct and several interest, as in the case of an heir or devisee in respect of land, and an executor in respect of his testator's personal effects, each is distinctly entitled to a writ of error. See Porter v. Bummery, 10 Mass. 64 ; Shirley v. Lunenburg, 11 Mass. 379 ; Gay v. Bichardson, 18 Pick. 417. If a judgment is recovered in the Superior Court against five defendants, over one of whom the court has not jurisdic- tion, and of the other four against whom judgment should have been rendered, two die, so that a reversal of the former judgment would, by the application of the statute of limita- tions, leave the plaintiff remediless, the Supreme Judicial Court may, on a writ of error, under Pub. Sts. c. 187, § 2, and c. 153, § 20, order a judgment to be entered in the Superior Court against such four other defendants, nunc pro tunc as of the time, as nearly as may be, when such judgment ought to 'have been rendered against them. Curran v. Burgess, 155 Mass. 86. An attorney of record may, without special authority, sue out a writ of error to reverse a judgment obtained against his client. Orosvenor v. Banforth, 16 Mass. 74. Where the writ is brought by parties not entitled to it, the practice is to quash the writ. Shaw v. Blair, 4 Gush. 97. 106 MASSACHUSETTS PRACTICE. The proceedings upon writs of error are according to the course of the common law as modified by the practice in this Commonwealth and the rules of the Supreme Judicial Court. Pub. Sts. o. 187, § 15. The writ will issue of course out of the Supreme Judicial Court, in term time or vacation, and is returnable to the same court. Ibid. § 1. When brought to reverse a judgment of the Superior Court, it must be heard and determined in the Supreme Judicial Court held for the same county in which the judgment complained of was rendered. Ibid. § 2 ; Ide v. Oleworth, 10 Cush. 415. Since the question presented upon the writ, record, and pleadings in error is always one of law, it follows, under Pub. Sts. c. 150, § 5, providing that " all issues in law shall be heard and determined by the full court," that a single justice of the Supreme Judicial Court has no authority either to try or to reserve such a question, it being within the exclusive jurisdiction of the full court. Tufts v. Newton, 119 Mass. 476. In practice, as soon as issue is joined upon a writ of error, the papers in the case are printed, and the case is transferred to the docket of the full court, there to be heard and determined. Before taking out a writ of error, the plaintiff must file the assignment of errors in the clerk's office, and a copy of the same must be inserted in the scire facias. Rule XXXI. Sup. Jud. Ct. ; Pierce v. Adams, 8 Mass. 383. The prayer for the writ and assignment may be in form as follows : — Supreme Judicial Court. Suffolk, ss. A. B., plaintiff in error versus C. D., defendant. On a judgment of the Superior Court begun and holden at Bos- ton, within and for the county of Suffolk, on the first Tuesday of FORMS AND ISSUING OF SPECIAL WKITS. 107 January, a. d. 1892, wherein the said C. D., of said Boston, is plaintiff and the said A. B., of said Boston, is defendant. And the said A. B. prays for a writ of error to issue returnable to the next Supreme Judicial Court, to be holden at said Boston within and for the said county of Suffolk, on the first Monday of April, A. D. 1892, and assigns errors in the record of the process and judgment aforesaid the following, to wit : [here insert the record containing the error, or errors, complained of, with the proper allegations of error]. By his attorney, M. N. No assignment of error in a process that was not disadvan- tageous to the plaintiff in error must be made. Shirley v. Lunenburg, 11 Mass. 383. Error in fact cannot be assigned where it contradicts the record and where the matter of fact might have been put in issue and tried, and, a fortiori, when it is actually put in issue and tried, even though, if the error were as alleged, the court that tried the case had no jurisdiction. Biley v. Waucfh, 8 Cush. 220. Where the errors assigned were an error in law apparent on the record and four errors of fact, the defendant demurred, assigning as cause that an error in law and an error in fact could not be joined, and that more than one error in fact could not be assigned. The court said : " If the strict rule of the common law against duplicity, which prevented the assigning of an error in law and an error of fact, or of several errors of fact in the same assignment, ever prevailed in this Common- wealth, it has been modified and abrogated by our practice and usage for many years. . . . Although our various statutes regulating pleadings and practice in civil actions do not in terms provide for cases in error, the practice in such cases has been modified so as to conform to the spirit of these statutes. And the reports of the decisions of this court show that a practice of assigning errors in law and errors in fact, or several errors in fact, in the same assignment, has prevailed 108 MASSACHUSETTS PKACTICE. for many years, without objection of counsel, and with the approval of the court. . . . An assignment of error's is analo- gous to a declaration, which may contain several counts. If an error of law and also errors of fact be assigned, there need be no embarrassment or confusion in the subsequent proceed- ings, or in the trial. The defendant in error can plead in nullo est erratum, which is in the nature of a demurrer to the assignment of error in law, and traverse the assignment of errors in fact; and, under our practice, the court will take such order as to the trial that all the questions involved in the case may be brought before this court for final determi- nation at the same time." Miot v. McGormicTe, 141 Mass. 194. In order to be effectual for the plaintiff in error, the error or errors of fact assigned must be such as, if proved, will as matter of law render the judgment complained of invalid. Thus, in Packard v. Matthews, 9 Gray, 311, the errors assigned were " that both the defendants in said suit were out of the Commonwealth at the time of the service of the summonses in said suit; that both said defendants were, at the said time, and have hitherto been, resident without the said Com- monwealth ; that no notice, sufficient in law, of the commence- ment or pendency of said . suit was given to the defendants, or either of them, before the rendition of judgment therein ; that judgment in said suit was rendered upon the default of said defendants at the term of court to which the writ in said suit was returnable, and without appearance by the defend- ants, or in their behalf." See, also, Goodridge v. Boss, 6 Met. 487 ; Morrison v. Underwood, 5 Cush. 52 ; Tilden v. Johnson, 6 Cush. 354. Error in fact cannot be assigned when the matter of fact might have been put in issue and tried in the original suit, since a party cannot be permitted to retry his case upon error. Thus, whether a right of action existed, or had been paid or satisfied, is a fact which must be tried in the original suit, and the party's remedy, if he is dissatisfied with FORMS AND ISSUING OF SPECIAL WRITS. 109 the judgment, is by appeal. Baymond v. Butterworth, 139 Mass. 471. Upon the issue of fact properly assigned, a trial is to be had with a jury, and upon their finding on such matter of fact, the court may order the former judgment to be reversed or confirmed, and to such order a party aggrieved may except. See Packard v. Matthews, 9 Gray, 311. The following is the form of writ which issues of course when the assignment of errors has been filed : — Commonwealth of Massachusetts. Suffolk, ss. To our trusty and well beloved A. M., CAie/ Justice of our Superior Court, Greeting. Because in the record and proceedings, and also in the rendition of judgment, between C. D. of Boston, plaintiff, and'A. B. of said Boston, defendant in an action that was in our Superior Court, holden at said Boston, within and for our said county of Suffolk, on the first Monday of January, now last past, to wit, on the fifth day of said January, manifest error hath happened, as it is said, to the great damage of the said A. B., as by his complaint 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 par- ties, do command you, that if judgment be therein rendered, you distinctly and openly send us the record and process of the suit aforesaid, with all things touching them, under your seal, together with this writ, so that we may have them before our Justicies of our Supreme Judicial Court, to be holden at Boston, within and for our county of Suffolk, on the first Monday of April next, that inspect- ing the record and process aforesaid, we may, for correcting that error therein, further cause to be done what of right and according to law shall be to be done. Witness, W. A. F., Esquire, at Boston, the first day of February, a. d. 1892. J. N., Clerk. If execution has issued in the original cause, the writ of error will not supersede or stay it, unless the plaintiff in error, 110 MASSACHUSETTS PKACTICE. or some one in his behalf, gives a bond to the defendant, with sufficient sureties, conditioned that the plaintiff in error will prosecute his suit to effect, and pay and satisfy such judgment as may be rendered thereon. Pub. Sts. c. 187, § 5. The form of such a bond may be as follows : — Know all Mek by these Presents, that we, A. B., as principal, and L. Gr. and S. T., as sureties, all of Boston, &c., are holden and stand firmly bound and obliged unto C. D., of said Boston, in the full and just sum of one thousand dollars, to be paid unto the said C. D., his executors, administrators, and assigns : To the which payment, well and truly to be made, we bind our- selves, our heirs, executors, and administrators, firmly by these presents. Witness our hands and seals. Dated the first day of February, in the year of our Lord one thousand eiglit hundred and ninety-two. The condition of this obligation is such, that whereas the said C. D. was plaintiff, and the said A. B. was defendant, in a certain action in the Superior Court for the county of Sufltolk ; and whereas, at a sitting of said Court, holden at Boston, within and for said county, on the first Monday of January last past, to wit, on the fifth day of said January, judgment was rendered in said action against the said A. B. for the sum of five hundred dollars debt or damage, and twenty dollars costs of suit ; and whereas, on the tenth day of January last past, execution issued out of said court on said judgment in favor of said CD., which execution now remains unsatisfied ; and whereas said A. B. hath duly assigned error in said proceedings and judgment, and hath sued out of the Supreme Judicial Court his writ of error to correct the alleged error therein, which writ of error is now pending, and remains to be heard. Now, therefore, if the said A. B. shall prosecute his suit on said writ of error to effect, and pay and satisfy such judgment as may be rendered therein, then this bond shall be void, but otherwise it shall remain of full force and virtue. The bond being filed in the clerk's office for the use of the defendant, no execution can thereafter be issued upon the judgment during the pendency of the writ of error; and if execution had already been issued, the clerk will make and FORMS AND ISSUING OF SPECIAL WRITS. Ill sign a certificate of the issuing of the writ of error and of the filing of the bond, and after notice of such certificate to the officer holding the execution, all further proceedings thereon are stayed. Pub. Sts. c. 187, § 6. Following is the judge's return upon the writ : — Suffolk, 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 of which are hereunto annexed, to the Honorable the Justices of the Supreme Judicial Court. In testimony whereof, I hereunto set my hand and seal this eighth day of February, a. d. 1892. A. M., Chief Justice, &c. It is improper to insert an assignment of errors in the writ, it being sufficient to state that manifest error hath intervened. Pierce y. Adams, 8 Mass. 383. After the return of the writ with the record from the court below, a scire facias ad audiendum errores issues (see Bac. Abr. Error, P.), and is to be served upon the defendant in error by attested copy. The following is the form of such a writ : — Commonwealth of Massachusetts. Suffolk, ss. To the Sheriff of our County of Suffolk, or either of his Deputies, Gkeeting. Whereas, at the complaint of A. B., of Boston, &c., a certain action prosecuted at the Superior Court, holden at Boston, within and for the county of Suffolk, on the first Tuesday of January now last past, by C. D., of said Boston, against the said A. B., together with the proceedings and judgment therein, by our writ of errors was ordered to be removed into our Supreme Judicial Court, next to be holden at Bostori, on the first Monday of April next : and whereas the said A. B., by his attorney, hath assigned errors and filed the same, which now remain in the clerk's oflBce of the Supreme Judicial Court, said to have happened on the said com- 112 MASSACHUSEITS PRACTICE. plaiut and in the said proceedings and judgment, as follows, to wit: [Here insert a copy of the assignment of errors.] We therefore command you, willing that justice should be done in the premises, that you make known unto the said C. D. that he appear (if he see cause) before our Supreme Judicial Court, to be holden at Boston, within and for the county of Suffolk, on the first Monday of April next, to hear the errors aforesaid, and to show 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, W. A. F., Esquire, at Boston, the tenth day of February, A. D. 1892. J. N., Clerk. The defendant in error is held to plead to the writ within ten days after the return day of the scire facias, unless the court shall by special order restrict or enlarge the time. Rule XXXI. Sup. Jud. Ct. See Tufts v. Newton, 119 Mass. 276. The most common plea of a defendant in error is in nulla est erratum, or that there is no error in the record or pro- ceedings. Tidd, Pr. 1116. The form of this plea may be as follows : — And now comes C. D., the defendant in error, and says there is not any error in the record and proceedings aforesaid, or in giving the judgment aforesaid, and he prays that the court here may pro- ceed to examine as well the record and proceedings aforesaid as the matter aforesaid assigned for error, and that the judgment aforesaid, in form aforesaid given, may be in all things affirmed. By his attorney. This plea, as it admits the facts well assigned, and refers the matters of law arising thereon to the judgment of the court, is in the nature of a demurrer. Booth v. Commonwealth, 7 Met. 285, 287. But if error in fact be assigned that is not assignable, or be ill assigned, in nullo est erratum is no confes- sion of it, but shall only be taken for a demurrer. Tidd, Pr. FORMS AND ISSUING OF SPECIAL WRITS. 113 1117 ; Bodurfha v. Goodrich, 3 Gray, 512 ; Biley v. Waugh, 8 Cush. 220. And the defendant in error may traverse the plaintiff's assignment of errors in fact. Miot v. McCormick, 141 Mass. 194. Special pleas to an assignment of errors contain matters in confession and avoidance, as a release of errors {i. e. that the plaintiff by sealed instrument has quitclaimed all manner of errors touching the original judgment, &c.), or the statute of limitations. Tidd, Pr. 1120 ; Ibid. Caines's Appendix, 371. If the judgment in the original suit is reversed on a writ of error, the plaintiff in error is to be restored to all things which he lost by reason of the judgment (^Gumming s v. Noyes, 10 Mass. 433), and the court will render such judgment as' the Superior Court should have rendered. Pub. Sts. c. 187, § 2 ; Commonwealth v. Ellis, 11 Mass. 462. Where the original judgment consists of parts that are dis- tinct, it may, on a writ of error, be affirmed in part and reversed in part. Thus the original judgment, as to debt or damage, may be sustained, and as to costs, revised or reversed by the judgment in review. Johnson v. Wetherbee, 3 Pick. 247 ; Cummings v. Pruden, 11 Mass. 206. The affirmance of a judgment upon a writ of error is a bar. to a second writ of error for any cause which existed at the time of such judgment. Booth v. Commonwealth, 7 Met. 285 ; Bodurtha v. Goodrich, 3 Gray, 508. But after a levy of execution on real estate, the court will not order a writ of restitution, but will leave the plaintiff in error to his remedy by a writ of entry. Horton v. Wilde, 8 Gray, 425. The prevailing party on a writ of error is entitled to costs, and if the original judgment is affirmed, the defendant in error is entitled to damages for his delay at a rate of not less than six or more than twelve per cent a year on the amount recovered by the former judgment, and the court may, in 8 114 MASSACHUSETTS PRACTICE. its discretion, awai'd double costs to the defendant in error. Pub. Sts. c. 187, § 7. This provision changes the rule of the common law. See Writ op Review, and Service, &c. OF Writs. Error from the Supreme Court of the United States to the Supreme Judicial Court. To sustain the jurisdiction of the Supreme Court of the United States to revise, by writ of error, a final judgment or decree of the highest court of a State, such judgment or decree must have necessarily involved a decision against a right claimed under the Constitution, laws, or treaties of, or an authority exercised under, the United States, and the point decided must distinctly appear upon the record. U. S. Eev. Sts. § 709. The ground of the decision, upon a question raised by the pleadings, may be shown by statements in the judgment' or decree itself, or by a certificate entered as part of the record by order of the court. But an opinion of the court, stating the grounds and reasons of its decision, is no part of the record if not incorporated in the judgment or decree, though required by the laws of the State to be filed for the information of the parties. Snell v. Dwight, 121 Mass. 348, 349, and cases cited. In this case it was held that an amendment of the record, necessary to enable the case to be taken to the Supreme Court of the United States by writ of error, would not be ordered upon a petition filed six months after the final judg- ment or decree. REVIEW. Review is the proper remedy to procure a trial where none has been had (judgment in the original suit having been granted on an accidental or wrongful nonsuit or default of plaintiff or defendant), or when something has occurred since the entry of judgment which makes it of importance to the FORMS AND ISSUING OF SPECIAL WRITS. 115 ends of justice that a new trial should be had. If the party has a right of appeal, the court will not grant a review, be- cause the remedy by appeal is more direct and simple. But if, without laches, he has lost his right of appeal, the court may grant a review upon good cause shown. Bowditch In- surance Co. V. Winslow, 3 Gray, 415 ; Hutchinson v. Gurley,, 8 Allen, 23 ; Fuller v. Storer, 111 Mass. 281. So, if a judgment is rendered against a party in a district court, and he has, without fault on his part, lost his right of appeal, the Superior Court has power to grant a writ of review, and it is for that court to decide whether a sufficient cause exists for the exer- cise of the power. Keene v. White, 186 Mass. 23.^ Subject to the limitations thus stated, it may be said, generally, that any cause, which before entry of judgment might have ap- peared ground for a new trial, may be made a foundation for a petition for review. A writ of review, like a writ of error, must be in the name of a party to the original judgment, or of those who have by law succeeded to his rights upon his death or bankruptcy. Gray, C. J., in Winch v. Hosmer, 122 Mass. 438. So, the Superior Court has not the power to grant a review in order to set aside a judgment obtained in an action, in the trial of which no error of law or fact occurred, merely for the purpose of striking out the name of the plaintiff therein and substi- tuting therefor the name of another person, who, if he should prevail, would hold the money sought to be recovered in the action in his own right, and not for the benefit of the original ^ " It is true, as a general rule, that a review should not be granted when the petitioner's only cause of complaint grows out of the negligence or misconduct of his attorney, but he should be left to seek his remedy against him who is responsible for the wrong. Any other rule would tend to fraud and to laxity of practice, greatly to the detriment and delay of honest suitors. On the other hand, we are not prepared to lay down an absolute rule of law that in no case can a review be granted when the error complained of was the negligence or incompetence of the petition- er's attorney." Sylvester v. Hurley, 157 Mass. 306, 308. 116 MASSACHUSETTS PRACTICE. plaintiff. Shillings \. Massachusetts Benefit Association, 155 Mass. 581. A judgment debtor who makes a part payment on the judg- ment, and thus secures a postponement of the levy on the execution, thereby waives his right to a review. Smith v. O'Brien, 146 Mass. 294. Before the St. 1875, c. 33 (Pub. Sts. c. 187, §§ 17-20), the only mode of obtaining a new trial or hearing of a case, after the entry of judgment, was by writ of review, issuing as of right, or upon petition ; but now the statutes provide that the judgment complained of may be vacated, and the case re-tried upon a Petition to Vacate Judgment. If upon a petition for setting aside the judgment in a civil action in the Supreme Judicial Court or Superior Court, 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 a suflScient 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.i Pub. Sts. c. 187, § 17. By St. 1893, c. 396, § 33, like power is given to district and police courts upon petition filed within one year after the recovery of the judgment. The petition lies where the judgment is for the defendant for costs, and the plaintiff is the petitioner. Shillings v. Mas- sachusetts Benefit Association, 151 Mass. 321. Where such an execution had been paid by the plaintiff's attorney, by his own 1 Before the enactment of the above statute (St. 1875, c. 33), when final judgment had been entered in the Superior Court without any error or mista'ke, in accordance with the order of the court, all the parties being before it, the court had no authority, on motion, after the term at which such judgment was entered, to vacate the judgment or stay the execution. Mason v. Pearson, 118 Mass. 61, and cases cited. FORMS AND ISSUING OF SPECIAL WRITS. 117 check, without express authority of the plaintiff, it was held that such payment satisfied the judgment, and that the peti- tion would not lie. New England Mutual Accident Associa- tion V. Varian, 151 Mass. 17. A petition to vacate a judgment must be filed within one year after the recovery of the judgment, and must be entered in the county in which the judgment was rendered ; and if the court is not then in session therein, it must 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 execu- tion to the clerk's office, with a certificate of any proceedings thereon. Pub. Sts. c. 187, § 18. The petitioner must, before the vacation of said judgment, and before the stay or supersedeas 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 ren- dered in said action ; and the court may impose any other reasonable terms upon the petitioner. Pub. Sts. c. 187, § 19. No attachment made or bail taken originally, in the suit, shall be liable to satisfy the judgment rendered aiter the original judgment has been vacated. Ibid. § 20. Proceedings for review are now generally had upon petition, as provided above, except in cases where review of the judg- ments of the Superior Court is desired in the Supreme Judi- cial Court, or when it is sought to review the judgment of an inferior court, in which cases it would seem that the proceed- ings must still be conducted by writ. If the Superior Court 118 MASSACHUSETTS PRACTICE. grants a petition for a writ of review which it has not juris- diction to entertain, an objection to such jurisdiction taken at the hearing upon the writ is not too late. Smith \. Bfown, 136 Mass. 416. If the evidence shows sufficient cause for a review, the court will not revise the finding or the discretion of the justice of the Superior Court. Soper v. Manning, 158 Mass. 381. When the defendant in an action who petitions for a review thereof, is discharged in insolvency (whether upon an assign- ment or upon composition proceedings under St 1884, c. 236 ; St. 1885, c. 353), before or sifter giving the security required in such cases, the court may enter a special judgment therein, and such judgment will be a sufficient judgment to enable the plaintiff to maintain an action against the sureties on the bond, no other objection existing thereto. And the bond for review (see posf) is required to contain a condition obliging the sureties to pay the plaintiff, within thirty days after the entry of any such special judgment, the sum, if any, for which such judgment shall be entered. Pub. Sts. c. 171, § 24 ; St. 1888, c. 405, §§ 1, 3. See Bush v. Hovey, 124 Mass. 217. . Writ of Review. Writs of review are granted either as of right or on peti- tion. They issue as of right from the court in which a judg- ment has been rendered on the default of a defendant upon whom service has not been made, by reason of his being out of the Commonwealth or of his residence being unknown, as provided in Pub. Sts. c. 164, relating to proceedings against absent defendants, and upon insufficient service. The writ must be sued out within one year from the date of the judg- ment complained of, if sued as of right.* Pub. Sts. c. 187, § 21. ' By analogy to the statute regulating reviews, a bill in equity to correct a mistake in a judgment or award must be filed within one year from the decision complained of, or, at the latest, within a year after discovering the mistake. Conant v. Perkins, 107 Mass. 79, 82. FORMS AND ISSUING OF SPECIAL WRITS. 119 For the purposes of a review, the apparent jurisdiction arising from the return of service by tlie oiHcer may be shown not to have existed in fact. James v. Townsend, 104 Mass. 367 ; Brewer v. Holmes, 1 Met. 288. When a review is not prosecuted as of right, the Supreme Judicial Court may, on petition, grant review of its own judg- ments on such terms as it deems reasonable, and has concur- rent jurisdiction with the Superior Court to grant reviews of the judgments of the latter ; and the Superior Court, con- currently with the Supreme Judicial Court, may grant reviews of its own judgments or of those of a trial justice, or dis- trict, policCi or municipal court, in any case in which a review might be granted if the judgment had been ren- dered in the Superior Court. Reviews granted by the Su- preme Judicial Court are tried in that court or in the Superior Court, as the -former court shall order. Pub. Sts. c. 187, §§ 22, 24, 25. In James v. Townsend, 104 Mass. 367, occurs an elaborate discussion and collation of the statute provisions respecting judgments upon default and writs of review, and the conclu- sion is reached that the true construction of Gen. Sts. c. 146, § 21 (Pub. Sts. c. 187, § 22), gives any one the right to file his petition for a review within one year after notice of a judgment against him, whenever, by any means or for any cause, there was, in fact, no service of the process upon him and no notice of the pendency of the suit, so that he was deprived of an opportunity to appear and defend in the original action.^ See also Fuller v. Storer, 111 Mass. 281, 283. ^ In James v. Townsend it was held that whenever the pi^senoe of a defendant in a suit is not secured, either in fact by his appearance, or constructively by the service on him of the summons, a judgment ren- dered therein upon his involuntary default is rendered " in his absence," ■within the meaning of the statutes concerning petitions for writs of review in such cases (see Gen. Sts. c. 146, § 21; Pub. Sts, c. 187, § 22), and the words " in the absence of the petitioner " do not render it neces- 120 MASSACHUSETTS PRACTICE. If the judgment complained of was rendered in the absence of the petitioner, and without his knowledge, the petition for review must be filed within one year after the petitioner first had notice of the judgment ; otherwise within one year after the judgment was rendered. Pub. Sts. c. 187, § 22. A writ of review may be granted of a final judgment in any civil action commenced by writ. A decree establishing a mechanic's lien on a building and land, upon a petition in- serted in a writ, may be reviewed by writ or may be vacated and brought forward by petition as provided in Pub. Sts. c. 187, §§ 17-20 ; Hulon v. Bousley, 123 Mass. 368. A judgment of the Superior Court upon the verdict of a jury assessing damages upon the petition of one whose land has been taken for a railroad, is a judgment in a " civil action" within the meaning of the Public Statutes, c. 187, §§ 16, 22, authorizing writs of review. A petition to the Supreme Judicial Court for the review of such a judgment is not barred by a former petition to the Superior Court, which was not filed, and of which there is no record, but which was presented merely to a justice of that court, who refused to grant an order of notice thereon. Nantasket Beach B. B. V. Bansom, 147 Mass. 240. And it is not a bar to such a petition that a previous petition was dismissed without preju- dice by reason of formal defects, and not upon its merits. Soper V. Manning, 158 Mass. 381. The Superior Court has authority, under Pub. Sts. c. 187, §§ 16, 25, to grant a review of a judgment rendered upon a default to a writ of scire facias against a trustee. JVew Eng- land Mutual Accident Association v. Varian, 151 Mass. 17. See Packard, ex parte, 10 Mass. 426. sary for him to show that he was absent from the Commonwealth. But if a writ is served personally upon a defendant, he is constructively present in court, and a judgment rendered upon his default is not ren- dered in his absence, and without his knowledge, within the meaning of the statute. Matthewson v. Moultim, 135 Mass. 122 ; and see Riley v. Hale, 146 Mass. 465. FORMS AND ISSUING OF SPECIAL WEITS. 121 The real party in interest in an action may, upon indemni- fying the party of record against costs, be allowed to sue out a writ of review in the name of the party of record. Fullers. Storer, 111 Mass. 281 ; Safford v. Knight, 117 Mass. 281 ; WiTich Y. Hosmer, 122 Mass. 438. The petition may be presented to the court sitting in any county, or to a justice thereof in vacation, and the order of notice issued thereon may be made returnable in such county as the court shall in such order direct ; but the review, if granted, must be had in the county in which the former judg- ment was rendered, or in the county in which the original action would have been tried if it had been carried to the Supreme Judicial Court by appeal or otherwise. Pub. Sts. c. 187, § 23. If, upon a petition in due form, and competent evidence, the judge to whom the petition is presented is of opinion that the petitioner has a substantial case upon the merits, which, by accident or mistake, and without fault on his part, he has had no opportunity of presenting, it is within the judge's discre- tion to grant a review without passing in advance upon the questions of law or fact which may be involved in the trial of the case ; and to the exercise of his discretion in this respect, no exception lies. Boston v. Bobbins, 116 Mass. 313 ; Haver- Mll Loan & Fund Association v. Cronin, 4 Allen, 144 ; New England Mutual Benefit Association v. Varian, 151 Mass. 17. But his rulings upon specific points of law raised at the hear- ing upon the petition or motion, such as the power to allow an amendment, or any other question of law, then arising for the first time, relating to the competency of evidence or the merits of the controversy, and the rulings upon whicli may have affected the final decision, may be revised on exceptions. Woodward v. Zeavitt, 107 Mass. 453 ; Richardson v. Lloyd, 99 Mass. 475. The refusal of a single justice of the Supreme Judicial Court to grant a review of a judgment of the Superior Court 122 MASSACHUSETTS PRACTICE. is not open to exception unless it involves some question of law. Weeks v. Adamson, 106 Mass. 514. ^ If the review is not granted, the court may award to the respondent his reasonable costs. Pub. Sts. o. 187, § 23. A mere judgment for the respondent for his costs, on a peti- tion for review, is no bar to the prosecution of a new petition filed within a year from the rendition of the original judg- ment. But, " if the judgment upon the former petition had passed upon the merits, it might well be held to be a conclu- sive adjudication that the petitioner was not entitled to have the original judgment reviewed." Hayes v. Collins, 114 Mass. 54. The petition should state fully the facts and grounds relied upon for asking the writ, in the form of an affidavit, as the petitioner is confined to the allegations in his petition. But the affidavit of the petitioner is sufficient to prove facts known only to himself. Simmons v. Apthorp, 1 Mass. 98 ; Willard v. Ward, 3 Mass. 24 ; Oojln v. Abbott, 7 Mass. 252. The court will require some evidence to support the allegations, even before granting an order of notice ; but, on the application for such an order, the petitioner's affidavit of his belief of facts not within his actual knowledge, will be sufficient. Sogers v. Hill, 4 Mass. 349. On the hearing of the petition, the affidavits of witnesses other than the petitioner are not admissible, and the admission of such affidavits is ground of exception. Gray v. Moore, 7 Gray, 215. If an execution has issued upon the judgment sought to be reviewed, and remains unsatisfied, the court or justice, upon the petition of the defendant, may order a stay or supersedeas of the execution, if the petitioner gives the adverse party 1 Although an agreement of the parties for the entry of judgment may be a waiver of a review as of right, suoh an agreement cannot control the discr"etiou of the court when a review is sought by petition. Hall v. Wol- cott, 10 Mass. 218; Golden y. Blafkopf, 126 Mass. 523. FORMS AND ISSUING OF SPECIAL WEITS. 123 security to the satisfaction of the court or justice, with condi- tion that he will forthwith prosecute a review to final judg- ment and 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 Pub. Sts. c. 171, § 24, or with St. 1888; c. 405, §§ 1, 3 (providing for special judgments against the sureties upon the bond of a petitioner for review who is adjudged insolvent), he will pay to the plaintiff, within thirty days after tlie entry of such judgment, the amount thereof. When the defendant has had no actual knowledge, before judgment was entered, of the pendency of the action against him, the stay or supersedeas may be ordered without security. The execution cannot otherwise be stayed or superseded by a writ of review. Pub. Sts. c. 187, § 39 ; St. 1882, c. 249. The word " defendant," as used above, is construed to mean the person against whom the judgment sought to be reviewed is rendered, and who, as petitioner, asks for a stay of execution. Such person may have beeii the plaintiff or the defendant in the original action. Leavitt v; Lyons, 118 Mass. 470. When a supersedeas is desired, it is usual to insert a prayer therefor in the petition, and the security required of the peti- tioner is usually a bond with sureties. A supersedeas bond is valid if it conforms to the terms of the statute, although it does not follow the terms of the order of the court, and although a larger liability is thereby created. Leavitt v. Lyons^ uM supra. The writ of review, if granted, will issue out of the clerk's office of the court in which the action is to be tried. Pub. Sts. c. 187, § 26. If the writ issues in favor of the original plaintiff, he may cause the defendant's property to be attached as it might have been in the original suit, and for this purpose the writ may be so framed as to require an attachment in the common form, and that the defendant be summoned. But no attachment made or bail taken in the original suit will be 124 MASSACHUSETTS PEAOTIOE. liable to satisfy the judgment rendered on the review. Pub. Sts. c. 187, § 30. The plaintiff in review must file in court certified copies of the writ, judgment, and all proceedings in the lormer suit, and the originals or copies of all depositions and other papers used and filed therein. Ibid. § 28. And amendments of the pleadings in the original suit may be allowed. Ibid. §31. If no issue was joined in the original suit, the parties plead and answer in review as they might have done origi- nally, and each party may produce any legal evidence, whether produced in the former suit or not. Ibid. § 32. If issue was joined originally, the same issue is retried on review. Ibid. § 31. Reviews granted by the Supreme Judicial Court are tried either in that court or the Superior Court, as the former court shall order. Ibid. § 24. " A 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 origi- nal judgment is not indeed set aside, but stands until the judg- ment in the review, which may afiirm, revise, or modify the former judgment in whole or in part, or make such other dis- position of the case as may be necessary to secure the just and legal rights of all parties." Safford v. Knight, 117 Mass. 281, 284, and cases cited. Although the general rule is that no defence is open on the review which could not have been made to the original action {Hart V. Johnson, 7 Mass. 472 ; Foster v. Plummer, 3 Cush. 381), yet, if the bankraptcy of the defendant was suggested, and a motion for a continuance to await the determination of the bankruptcy proceedings was made in the original suit before judgment, the defendant may, on review, plead his discharge in bankruptcy, or a composition obtained since the judgment, since, by so doing, he simply perfects the defence FORMS AND ISSUING OF SPECIAL WRITS. 125 set up in the original action. Todd v. Barton, 117 Mass. 291 ; Golden v. Blaskopf, 126 Mass. 523. It has been held that an action on a judgment, or on a bond given to dissolve an attachment, will lie, notwithstanding an order of the court granting a writ of review of the judgment and a supersedeas of the execution, in the action in which the bond was given. Lehan v. Good, 8 Cush. 302 ; Gifford v. Whalon, 8 Cush. 428. But where proceedings are commenced by vacation of the original judgment, under Pub. Sts. c. 187, §§ 17-20, it would seem that no such action on the judgment or bond could be maintained. Writs of, and petitions for, review are to be indorsed in the same manner and under the same regulations as original writs. Pub. Sts. c. 187, § 88. See Indorsement of Writs. The prevailing party recovers costs unless the court origi- nally granted the review on terms. Ibid. § 34. If the sum recovered by the plaintiff in the original suit for debt or damages is reduced on review, the original defendant will have judgment and execution for the difference, with costs ; or, if the original judgment is not satisfied, one judg- ment may be set off against the other, and an execution issued for the balance. If the original plaintiff recovers a greater sum for debt or damages than was originally awarded, he may have judgment and execution for the excess. Ibid. § 35. See Williams v. Hodge, 11 Met. 266. In Good V. Lehan, 8 Cush. 299, the plaintiff prevailed in the original suit, but on the trial of the review the verdict was for the original defendant. The order of the court was, that " judgment be entered for the plaintiff in review to recover back the whole amount of the former judgment against him, with costs on that judgment and costs of the review, open to a motion to set off one judgment against the other, according to the statute." In an action of contract, the defendant filed a general denial, and also a declaration in set off, and was subsequently de- 126 MASSACHUSETTS PRACTICE. faulted and judgment rendered against him for more than one thousand dollars and costs ; whereupon he brought a writ of review, upon the trial of which the original plaintiff recovered a verdict of one dollar. It was held that the original defend- ant was entitled to costs even if the sum recovered by the original plaintiff was reduced by set-off, upon the trial on the review. Williams v. Williams, 133 Mass. 587. See Pub. Sts. c. 198, §§ 5, 7. Following are forms (1) of a petition for review ; (2) of the bond to be given by the petitioner in all cases where a vaca- tion of judgment, under Pub. Sts. c. 187, §§ 17-20, is sought for, or when a supersedeas issues in accordance with the prayer of the petition for a writ of review ; (3) of the supersedeas ; and (4) of a writ of review : — 1. Petition. Suffolk, ss. To the Honorable the Justices of the Superior Court next to be [^or now'] holden at Boston, within and for the County of Suffolk : Respectfully represents your petitioner, A. B. of said Boston, that he is the defendant in a certain action of tort, in which C. D. of Cambridge, in the County of Middlesex, is plaintiff, and that at a term of said court held at said Boston, on the first Monday of April, 1892, to wit, on the tenth day of May, 1892, your petitioner was defaulted in said action, and thereafter, on the fifteenth day of May, 1892, judgment was entered for the plaintiff in said action for one hundred dollars damages, and nineteen dollars costs of suit, and on the twentieth day of said month execution issued on said judgment, all of which by the record appears. And now comes your petitioner and prays this Honorable Court to vacate said judgment [and to stay and supersede any execution that may have issued thereon], and to order said action to be brought forward on the docket of the Court, to be tried and dis- posed of as if said judgment had not been rendered. And, in support of his prayer, your petitioner on oath declares : [here insert the facts relied upon by the petitioner as grounds for re-opening the case.] A. B. FORMS AND ISSUING OF SPECIAL WRITS. 127 Suffolk, ss. This 25th day of May, 1892. Personally appeared the above-named A. B., and made oath that the statements above subscribed by him are true so far as the same depend on his own knowledge, and that so far as the same depend on information and belief he believes them to be true. Before me, N. M., Justice of the Peace. The above form is to be used when proceedings are con- ducted under Pub. Sts. c. 187, §§ 17-20. If a writ of review is desired, the prayer of the petition may be as follows : — And now comes your petitioner and prays this Honorable Court to grant him a writ of review of said judgment [and to stay and supersede, &c.J. A general request to rule that a petition to vacate a judg- ment is insufficient in form is entitled to no more favorable consideration than a demurrer, which must point out any de- fect or technical inaccuracy relied on. Sojper v. Manning, 158 Mass. 381. If the justice to whom the petition is presented is of opinion that sufficient cause exists, he will make an indorsement on the petition directing the clerk to issue an order of notice on the respondent to appear at the next term of court and show cause why the prayer of the petitioner should not be granted. Service is made on the respondent, by an attested copy of the petition and order, fourteen days at least before return day. 2. Bond on Petition for Vacating Judgment. , Know all men by these presents, that A. B. of Chelsea, in the County of Suffolk, as principal, and E. F. and G. H., both of said Chelsea, as sureties, are holden and stand firmly bound unto C. D. of Cambridge, in the County of Middlesex, the obligee, in the full and just sum of dollars, to be paid unto the said obli- gee, his executors, administrators, or assigns ; to which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, firmly by these presents. Sealed with our seals. Dated the tenth day of January, a. d. 1893. 128 MASSACHUSETTS PRACTICE. The condition of this obligation is such, that whereas, at the sitting of the Superior Court begun and held at Boston, within and for the County of Suffolk, on the first Monday of October, in the year of our Lord eighteen hundred and ninety-two, the said obligee re- covered judgment against the said A. B. for the sum of eighty -j^ dollars damages, with costs of suit taxed at fifteen ^^ dollars ; and whereas, the said A. B. has entered his petition [*] at the January sitting of said Superior Court for the County of Suffolk, a. d. 1893, praying that said judgment may be vacated and the action brought forward. Now, if the said A. B. shall satisfy said judgment and all costs accrued on any execution issued thereon if the said judgment is not vacated upon said petition, and if he shall satisfy the execu- tion that may be issued in favor of the adverse party on any judg- ment that may be hereafter rendered in said action if said judgment is so vacated, and if said sureties shall pay to the plaintiff within thirty days after entry of any special judgment under Section 39 of Chap. 187 of the Public Statutes, in accordance with the provi- sions of Chap. 406 of the Acts of the Mass. Legislature, a. d. 1888, Section 3, the sum, if any, for which said judgment shall be entered, then this bond shall be void ; otherwise the sajne shall remain in full force. When the petition is for a writ of review, the bond follows the above form to the [*], and then proceeds as follows : — For a review of the said- judgment &c. Now if the said A. B. shall forthwith prosecute a review to final judgment, and shall satisfy such execution as may be issued against him on the review, or in case a special judgment shall be entered, in accordance with Section 39 of Chap. 187 of the Public Statutes, the sureties shall pay to the plaintiff within thirty days after the entry of such judg- ment, the sum for which said judgment shall be entered, in accord- ance with Chap. 405, Section 3 of the Acts of the Mass. Legislature, A. D. 1888, then this bond shall be void ; otherwise the same shall remain in full force. Where a bond entered into upon a petition for a review, pro- vided that the petitioner, as obligor, should " forthwith prose- cute " the review, and the bond was duly approved by the court, which, however, fixed no time within which to bring the writ, FOEMS AND ISSUING OF SPECIAL WRITS. 129 it was held that the writ was to be brought forthwith, or within a reasonable time, and that, as it was not brought for more than a year, there was a breach of the condition of the hond. Quinn v. Brennan, 148 Mass. 662. In the same case it was held that where the obligee in a bond for review had no just claim against the petitioner, and had wrongfully recovered judgment against him, and had made a reconveyance to him of property wrongfully sold as his on an execution .issued on the original judgment, it was held, in an action on the bond, that judgment was properly to be entered for the penalty thereof, but that execution could rightfully issue for nominal damages only. 3. Supersedeas. Commonwealth op 'Massachusetts. Suffolk, ss. To the Sheriffs of our several Counties, or then Deputies, Greeting. Whereas, C. D. of Cambridge, in the County of Middlesex, by the consideration of our Justices of our Superior Court, begun and held at Boston within and for our County of Suffolk, on the first Monday of April, a. d. 1892, to wit, on the fifteenth day of May, A. D. 1892, recovered judgment against A. B. of Boston, in the County of Suffolk, for the sum of eighty dollars and fifty cents damage, and the further sum of fifteen dollars and twenty cents costs of suit : And whereas we lately commanded you by our writ of execution which issued on said judgment, bearing date the thirtieth day of May last, that of the goods, chattels, or lands of the said A. B. within your precinct, you cause to be paid and satisfied unto the said C. D. 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, chat- tels, or lands of the said A. B., to be by him shown unto you, or found within your precinct, to the acceptance of the said C. D., to satisfy the sums aforesaid : We further commanded you to take the body of the said A. B., and him commit unto our jail in Boston, in our County of Suffolk aforesaid, and therein detain until he pay the full sums aforesaid, with your fees ; or that he be 9 130 MASSACHUSETTS PRACTICE. discharged by the said C. D.^ the creditor, or otherwise by order of law : And because the said A. B., by his petition preferred at our said Superior Court, held at Boston, within and for the County of Suffolk, on the first Tuesday of April, a. d. 1892, 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 A. B. a review of said judgment ; and onr said Court did thereupon order that notice be given to the said C. D. tb appear at the term of our said Superior Court, to be holden at Boston, within and for our County of Suffolk, on the first Monday of July, 1892, then and there to show cause, if any he have, why the prayer of said petition should not be granted ; and did further order that the said execution be superseded. We command you, therefore, that from taking the goods, chattels, or' lands of the said A. B., and from taking, arresting, imprisoning, or in any wise molesting the said A. B., you altogether supersede and cease ; and if you have taken any of the goods, chattels, or lands of the said A. B. upon our said writ of execution, and de- tain them for no other cause, that then you restore the same to the said A. B. without delay ; and if the body of the said A. B. you have taken, and now in jail detain for that cause and no other, that then him out of the jail wherein he is detained, without delay, you cause to be delivered, at your peril. Witness, A. M., Esquire, at Boston, the fifth day of June, in the year of our Lord one thousand eight hundred and ninety-two. J. A. W., Clerk. The above form may be modified so as to serve in the case of a supersedeas issuing upon a petition for vacation of judg- ment, under Pub. Sts. c. 187, §§ 17-20. 4. Writ. Commonwealth of Massachusftts. Suffolk ss. To the Sheriff of any County in said Oommon- weaUh, or his Deputy, Greeting. We command you that you summon C. D. of Cambridge, in the County of Middlesex, if he may be found in your precinct, to ap- FORMS AND ISSUING OF SPECIAL WHITS. 131 pear before the Justices of our Superior Court, next to be holden at Boston, within and for the County of Suffolk, on the first Mon- day of January next, then and there in our said court to answer unto A. B. of Boston, in the County of Suffolk, in the review of an action brought by the said C. D. against the said A. B., in an action of contract, in which action the said C. D., by the consid- eration of the justices of our Superior Court, begun and held at Boston, within and for our said County of Suffolk, on the first Tuesday of April last, recovered judgment against the said A. B. for the sum of eighty dollars and fifty cents damage, and fifteen dollars and twenty cents costs, which said judgment the said A. B. says is wrong and erroneous, and that he is thereby damnified the sum of two hundred dollars, as shall then and there be made to appear. Wherefore, for reversing the last-mentioned judgment, and re- covering back from the said C. D. the said sum of eighty dollars and fifty cents, the damage aforesaid, and the said sum of fifteen dollars and twenty cents, the said costs of suit, and for recovering judgment against the said C. D. for costs of court, he, the said A. B., brings this suit. And have you there this writ, with your doings therein. "Witness, A. M., Esquire, at Boston, the twentieth day of October, in the year of our Lord one thousand eight hundred and ninety-two. J. A. W., Clerk. WRIT OF PROTECTION. The Supreme Judicial and Superior courts, or a justice of either, or, it seems, a justice of any court of record, has power to issue this writ for the protection of parties or wit- nesses from arrest or service of process, while going to or from and while in attendance at court. The power is rarely exercised, and it must clearly be made to appear, by affidavit or other satisfactory evidence, that the application for the writ is made in good faith, and for the purpose of enabling such person to attend the court as a party or as a witness in some case pending, such case to be specified ; if a party plain- tiff, ,that such suit has not been commenced by him coUu- sively ; or, if a defendant, that such suit has not been 132 MASSACHUSETTS PRACTICE. commenced against him by his request or procurement ; or, if a witness, that he has not been required to attend as a witness, by his own request or procurement, or collusively, to enable him to obtain the writ of protection prayed for. See Rule XVII. Sup. Jud. Ct., Rule XLIII. Sup. Ct., Rule XXXI. Mun. Ct., Boston. The following is the form of such a writ : — Commonwealth of Massachusetts. Suffolk ss. To the Sheriffs of our respective Counties, or either of their Deputies, and to the Constables of the several Cities and Towns in said Counties, Gkeeting. Whekeas, a. B. of Cambridge, in our County of Middlesex, is [a material witness] in an action depending in our Superior Court, now holden at Boston, within and for the County of Suffolk, be- tween one C. D., plaintiff, and one E. F., defendant, at the trial whereof it is necessary, as the said C. D. suggests, that he should be present: and the said A. B. having, in our said Court, humbly supplicated for our protection, that so he may attend the trial of the said cause without danger of arrests in civil causes ; which of our grace we have thought proper to grant. W.e do therefore pro- hibit you, and each and every of you, to attach the body of the said A. B. or to serve him with any civil process whatever, while travelling to or from our said Court, or during his attendance there for the trial of the said cause. Witness, A. M. Esquire, at Boston, the 20th day of March, in the year of our Lord one thousand eight hundred and ninety- three. J.A.W., Clerk. A writ of protection is only prima facie evidence to an officer about to arrest a person, and is no protection to one not entitled to it, and is only useful as such evidence to one who is entitled to it. And one attending court as a witness who has not been summoned is not privileged from arrest, although he has a writ of protection. M'Neil, ex parte, 6 Mass. 264. FORMS AND ISSUING OP SPECIAL WEITS. 133 WRIT OP PROHIBITION. A Prohibition is a writ " directed to the judge and parties of a suit in any inferior court, commanding them to cease from the prosecution thereof, upon a suggestion that either the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court." Or if, " in handling of matters clearly within their cognizance, they [the inferior court] transgress the bounds prescribed to them by the laws of England . . . in such cases, also, a prohibition will be awarded." 3 Black- stone, Com. 112 ; Conn. Biver R. B. v. County Commissioner a, 127 Mass. 50, 57. An abutter upon a highway which crosses a railroad by a bridge, in which and its approaches the county commissioners, upon the petition of the selectmen of the town, have ordered certain alterations to be made, is not " a party aggrieved " by the decision of the commissioners, within the meaning of St. 1882, c. 135, § 1, giving to such party the right of appeal therefrom to the board of railroad commissioners, although he appeared before the county commissioners and was heard by them. Prohibition is the appropriate remedy to restrain the railroad commissioners from taking jurisdiction of such an appeal. Chandler v. Bailroad Commissioners, 141 Mass. 208. The writ issues from the Supreme Judicial Court (Pub. Sts. c. 150, § 3), upon petition to the court or a justice thereof, and " it being a prerogative writ, and there being no statute provisions limiting the powers of the court in respect to it, a petition for it may be heard, and the writ be issued in any county." Day v. Aldermen of Springfield, 102 Mass. 310, 312. The court will exercise its authority to issue writs of prohi- bition to courts of inferior jurisdiction only in cases where such courts clearly exceed their jurisdiction. Washhurn v. Phil- lips, 2 Met. 296. When such inferior court is exceeding its 134 MASSACHUSETTS PRACTICE. jurisdiction, the writ may issue upon the application of any person, even a stranger to the proceedings below, Attorney- General V. Boston, 123 Mass. 460, 4^9, and cases cited. The writ may be denied, although upon the record the proceed- ings complained of appear to have been defective or informal ; and the writ will be interposed only in clear cases of excess of jurisdiction. Hyde Park v. Wicfgin, 157 Mass. 94, and cases cited. The dperation of the writ is not confined to courts of record. In Day v. Springfield, 102 Mass. 310, it was held to be an appropriate remedy to restrain the board of aldermen of a city from proceeding without right to lay out or wid«n a way, and to assess betterments therefor. The owner of land taken by the manager of a railroad owned by the Commonwealth, under the authority of a statute which does not make adequate provision for compensation for the land so taken, may have a writ of prohibition to the county commissioners to prevent them from proceeding with the as- sessment of the damages caused by the taking. And " the fact that the remedy by petition for writ of certioraH will be open to the land-owner, after final judgment, affords no reason why the court should now refuse a writ of prohibition, and thereby put the petitioner to the trouble, expense, and delay of a trial before a tribunal which has no jurisdiction of the case." Connecticut River B. B. v. County ContmissioHeri, 127 Mass. 50. A magistrate may be restrained by writ of prohibition fr'om entertaining a second application of a debtor (under Pub. Sts. c. 162) to take the oath that he does not intend to leave the State, after a former application has been heard and refused. Henshaw v. Cotton, 127 Mass. 60. This writ is very rarely used. In its operation it is very like an injunction issuing out of a court of equity, and a tem- porary writ may issucj like an interloicutory injunction, which may be dissolved aftei^ a hearing upon the answer. FORMS AND ISSUING 01 SPECIAL WRITS. 135 The writ of prohibition issues upon petition and order of notice to the respondent to show cause why the writ should not issue. The petition should be accompanied by an affidavit of the truth of the matters therein averred, like an affidavit to a bill in equity. The respondent answers the petition, and the hearing is had upon the petition and answer. As the writ of prohibition has never actually issued in this Commonwealth since the adoption of the present frame of government, no form of the same can be said to be established by precedent.* The ancient writs hardly differed in form from an ordinary injunction in equity, the command of the writ running as follows : — * The writ was issued in several cases by the Superior Court of Judi- cature for the Province of Massachusetts Bay. The following form ap- pears in the records of that court for the year 1718, at page 259 : — For that whereas R. W. , sailor, by his petition and suggestion to our Justices of our Superior Court of Judicature for the province of the Mas- sachusetts Bay, hath declared that on he hath been unlawfully vexed and grieved by the Judge of the Court of Admiralty, for that he did not then admit and allow of a libel against said R. W. for a pretended insult and abuse done and arising within the town of Boston, within the County of Suffolk, and therefore not cognizable in said Court of Admiralty, as by his suggestion does more fully appear ; We therefore, being willing to maintain the laws and rights of our judicatories and courts of record, and being unwilling our liege people with delays against the same to hurt : We command and firmly enjoin yon and every of you that you meddle not further in the said plea, nor molest nor cause to be molested the said petitioner in the cause aforesaid in said Court of Admiralty, neither attempt nor presume to attempt anything more therein until our said justices have advised and consulted therein at the next Superior Court of Judicature to be holden at Boston for the County of Suffolk on next, when you the said J. M. [judge of the Court of Admiralty] and J. H. the plaintiff in the said libel may be present if you or they please to show forth and maintain, if you can, that the said plea or cause is cognizable in the said Court of Admiralty. In this case it was finally ordered by the court that the prohibition be peremptory, and that the plaintiff recover of J. H. the costs of prosecution. 136 MASSACHUSETTS PKACTICB. We therefore . . . prohibit and firmly enjoin you, and every of you, that yon or any of you [do not hold plea touching or in any manner concerning the premises before you] nor attempt or pre- sume to attempt anything therein. See Lilly's Modern Entries, 630 ; Saunders' Reports, 6th ed. 136, note. SERVICE AND BNTEY OF WKITS. 137 CHAPTER IV. SERVICE AND ENTRY OP WRITS. SERVICE. Original writs issued from the Supreme Judicial Court or Superior Court are required to be served fourteen days at least before the return day. Pub. Sts. c. 161, § 27 ; St. 1885, c. 384. Writs, returnable before a district, police, or municipal court, or a trial justice, must be served not less than seven and not more than sixty days before the return day. Pub. Sts. c. 161, § 27. An original writ issuing from a district, police, or munici- pal court, when served in a county other than that in which it is returnable, must be served fourteen days at least before the return day. Pub. Sts. c. 154, §§ 16, 47 ; St. 1885, c. 45 ; St. 1893, c. 396, § 17. Writs against a county, city, town, precinct, parish, reli- gious society, or school district, or against proprietors of wharves, general fields, or real estate lying in common, must be served thirty days at least before the return day. Pub. Sts. c. 161, § 28. And these corporations are entitled to the same notice when summoned on a trustee process issued from the Superior Court. Pub. Sts. c. 183, § 6. Harris v. DoJierty, 119 Mass. 142. But with trustee writs issuing from a district, police, or municipal court, or a trial justice, it is difFerent. Such writs cannot now be made returnable more than thirty days from their date ; and the service of any such trustee writ on any party therein is declared sufficient in all cases, if 138 MASSACHUSETTS PRACTICE. made seven days at least before the return day. Pub. Sts. c. 183, § 7 ; St. 1887, c. 33. In computing the time for service before the return day, the day on which service is made may be included. Butler v. Fessenden, 12 Cush. 78. When the writ is in the form of an original summons, with- out an attachment, it may be served by reading it to the defendant, or by delivering to him a copy attested by the officer who serves it, or by leaving such copy at his last and usual place of abode, if he has any within the Commonwealth known to the officer, and if he has none, with his tenant, agent, or attorney. Pub. Sts. c. 161, §§ 29, 31. See Fall Biver v. Biley, 140 Mass. 488. Service may be made by attaching the goods or estate of the defendant, or by arrest- ing him, when such arrest is authorized by law. Pub. Sts. c. 161, § 26. But whenever goods or estate are attached, there must be a separate summons, to be served on the defend- ant after the attachment, and the service thereof is declared to be a sufficient service of the original summons. " When the plaintiff or demandant elects to take out his writ iu a form which authorizes an attachment of the defendant's property, he must have an original summons served on the defendant, at least when he causes an attachment to be made, and, perhaps, even if he does not." Wilbur v. Ripley, 124 Mass. 468, 469 ; Harrington v. €onolly, 116 Mass. 69 ; Pub. Sts. c. 161, § 15. And such service by a separate summons may be made after a nominal attachment of the defendant's property, as of a chip. Pedbody v. Hamilton, 106 Mass. 217. When there is a separate summons to be served after an attachment of goods or estate, it must be served by delivering the summons to the defendant, or leaving it at his last and usual place of abode, if he has any within the Commonwealth known to the officer, or, if he has none, with his tenant, agent, or attorney, if he has any within the Commonwealth known to the officer. Pub. Sts. c. 161, §§ 29, 30. See Fall River v. Riley, 140 Mass. 488. SERVICE AND ENTRY OF WRITS. 139 Leaving a summons in the berth of d, defendant in a vessel in which he has taken passage and lies concealed is no ser- vice. Craig v. Qisborne, 13 Gray, 270. But service in a personal action of a transitory nature against a citizen of another State, made on board a foreign Vessel just arrived from a foreign port and not yet moored, is legal. Peabody v. Ham- ilton; 106 Mass. 217. When one was sued by a wrong name (not idem sonans), and the summons was left at a boarding-house where he lived, as bein^ his last and usual place of abode, the service was held to be insufficient. Fitzgerald v. Salentine, 10 Met. 436. The separate summons may be served at any time after an attachment is made, provided the requisite number of days elapse between such service and the return day. Pub.. Sts. c. 161, § 30. In the service of a trustee writ, an attachment of the defend- ant's goods and estate in his own possession may be made in the usual manner, and further service made upon the defend- ant and each trustee in the manner prescribed for the service of an original summons without an attachment. Pub. Sts. c. 183, § 6; Belknap v. Gibhens, 13 Met. 471; Harris v. Doherty, 119 Mass. 142 ; Stimpson v. Maiden, 109 Mass. 313. If there are several persons jointly liable as trustees, being joint debtors of the principal defendant, all must be served with process who are jointly liable, and who are inhabitants of the State, and may be served with process ; otherwise, those who are served upon may for that reason be discharged, pro- vided the objection is seasonably ofiered. Warner v. Perkins, 8 Cush. 518 ; Hoyt v. Mobinaon, 10 Gray, 871. But when partners are summoned as trustees in a writ issuing from a police, district, or municipal court, or a trial justice, service on one partner is sufficient, if the partnership is properly described in the writ. Pub. Sts. c. 183, § 7. Service may be made upon the trustee any number of times before entry, provided the requisite number of days remain 140 MASSACHUSETTS PKACTICE. before the return day ; but if the writ is served upon a trustee after service upon the defendant, it must be served upon the defendant again. The names of other trustees may be in- serted at any time, and service made upon them, regard being had, as before stated, to the length of time before the return day. Pub. Sts. c. 183, § 8. In suits against a county, the summons is served by leaving an attested copy with the county treasurer, and with one of the county commissioners, or one of the officers who by law exercise the powers of county commissioners (as, in the County of Suffolk, the Board of Aldermen of the City of Boston). In suits against a city, town, precinct, parish, reli- gious society, or school district, or against the proprietors of wharves, general fields, or real estate lying in common, ser- vice is made by leaving an attested copy of the summons with the treasurer of the corporation or of the proprietors, and another like copy with the mayor, clerk, or one of the alder- men of the city, or one of the selectmen of the town, or with one of the assessors or standing committee of the parish or religious society, or one of the proprietors of such land or other estate, as the case may be ; and, if there is no such treasurer found within the county, the copy is to be left with one of the other officers before mentioned, or with one of the proprietors ; and if there are no such officers, the copy is to be left with one of the inhabitants of the county, city, or town, or one of the niembers of the corporation. Pub. Sts. c. 161, § 35. In suits against other domestic corporations, service may be made upon a clerk, cashier, secretary, agent, or any other officer having charge of its business, and if no such person is to be found, on any member of the corporation. Ibid. § 36. In a suit against a manufacturing corporation, service of the writ upon the plaintiff, as president of the corporation, was held insufficient to warrant a default. " The notice, to be effective, must be a notice to an adverse party. If there SERVICE AND ENTRY OF WRITS. 141 was no other agent or officer of the corporation except the plaintiff, it would seem to be the proper course to serve the process on some member of the corporation, and that member some other person than the plaintiff." Buck v. Ashuelot Mfg. Co., 4 Allen, 357. Foreign corporations having property in the State are liable to be sued, and their property is subject to attachment in like manner as residents of other States having property in this State. Pub. Sts. c. 105, § 28. Foreign corporations, except insurance companies, having a usual place of business in this Commonwealth, are now re- quired, before doing business here, to appoint, in writing, the commissioner of corporations or his successor in office, to be its true and lawful attorney, upon whom all lawful processes in any action or proceeding against it may be served ; and service upon such attorney is declared to be sufficient service upon the principal. St. 1884, c. 330. Foreign insurance companies are required to appoint the insurance commissioner their attorney in like manner. Pub. Sts. c. 119, § 202, Prior to the enactment of the statutes last cited above, no foreign corporation could be sued in the courts of this State without an attachment of property here, and further notice ^iven as required in the case of absent defendants. Pub. Sts. c. 164, § 1 ; c. 105, § 28. Andrews v. Michigan Cent. B. B. Co., 99 Mass. 534. See Young v. Providence, &c. S. S. Co., 150 Mass. 550, and cases cited. If a foreign corporation has appointed an attorney in ac- cordance with the statutes cited above, service must be made upon the commissioner, and not upon any officer or agent of the corporation who may be found in the State. Thayer v. Tyler, 10 Gray, 164 ; and service upon him is sufficient without any attachment. Johnston v. Trade Ins. Co., 132 Mass. 432.1 1 The writ in this case appears to have been a simple summons, and the officer served upon the commissioner a summons and also an attested copy of the writ. 142 MASSACHUSETTS PRACTICE. Foreign corporations doing business in this State which have complied with the provisions of law, and appointed an attorney for service, are within the general jurisdiction of our courts, and can be held to answer in suits upon contracts which are transitory in their nature, and which ordinarily may be enforced wherever the defendant may be found. The statutes simply provide for service of process, aud when the service is actually made the jurisdiction of the court is com- plete as to the defendant. Johnston v. Trade Ins. Co., 132 Mass. 432. Absent Defendants and Irisuffieient Service. No personal action can be maintained against a person " who is out of the Commonwealth at the time of the service of the summons, unless he had before that time been an inhabitant of the State, or unless an effectual attachment of his goods, estate, or effects is made on the original writ, except in cases in which it is otherwise specially provided. Pub. Sts. c. 164, §1- Under the 14th Amendment to the Constitution of the United States no judgment in personam can legally be ren- dered by a State court against a .person who is not a resident of the State, who does not appear in the suit, and who is not served personally with process within the State. When pro- perty of a non-resident defendant is found within the State, it may be attached, and the State court proceed to a judg- ment so far as to apply the property to the payment of the debt sued on ; but if there is no appearance and no personal service, a judgment rendered against the defendant person- ally is void, and has no effect beyond the property attached. Permoyer v. Neff, 95 U. S. 714; Freeman v. Alderson, 119 U. S. 185 ; Eliot v. McCormick, 144 Mass. 10 ; Stone v. Wairir Wright, 147 Mass. 201. If the party defendant" is in the State, however transiently, and the summons is actually served upon him there, the juris- SEKTICE AND ENTRY OF WRITS. 143 diction of the court is complete as to the person of the defend- ant." Peabody v. Hamilton, 106 Mass. 217, 220. If an absent defendant, whose goods or estate are attached, is sued with one or more others on a joint contract, and he has no last and usual place of abode in the State known to the officer, and no tenant, agent, or attorney, within the Common- wealth, the summons for him, or a copy, as the case may be, must be left with one of the co-defendants, if there is any within the Commonwealth. Pub. Sts. c. 161, § 32. A person who was born in Massachusetts, and owned real estate here, removed to Philadelphia, and it was held that, three years after his removal, he must be considered to have a " last and usual place of abode " in this State. Tilden v. Johnson, 6 Cush. 354 ; Beeder v. Eolcoml, 105 Mass. 98. That is, the words of the statute apply to a defendant who has taken up a permanent residence elsewhere, as well as to one who is temporarily absent from the State. Graves v. Cush- man , 131 Mass. 359. In personal actions founded on tort against several defend- ants, if any one of them is out of the State at the time of the service of the writ, the statute provides that, " the suit shall be conducted with regard to him, in everything relating to the service of the writ, judgment, review thereof, and execu- tion, in like manner as if he had been the only defendant in the case. Pub. Sts. c. 164, § 12. It is also provided that if an action founded on contract is brought against several defendants, and service is made on one or more of them, but no legal service is made on the others, either by attachment of property or otherwise, by reason of their absence from the State or for other sufficient cause, the action may proceed against those on whom service has been duly made, without further proceedings against the others. Pub. Sts. c. 164, § 14. In the case of Stone v. Wainwright, 147 Mass. 201, it is said : " By immemorial practice, founded on necessity, and 144 MASSACHUSETTS PRACTICE. embodied in a declaratory statute in this Commonwealth, if an action of contract is brought against several defendants, some of whom cannot be served, hj reason of their absence from the State, the action may proceed against those who are duly served. But when a judgment is taken for this reason against less than the whole number of joint contractors, an action on the same contract may be maintained afterwards against any of those not served." Citing, Pub. Sts. c. 164, §§ 14, 15 ; Tappan v. Bruen, 5 Mass. 193. In all cases when the defendant is out of the Common- wealth, or his place of residence is not known to the officer, and no personal service is made on him, he is entitled, in addition to the service heretofore prescribed, to further notice of the suit as provided in Pub. Sts. c. 164, relating to absent defendants and insufficient service. Pub. Sts. c. 161, § 34. In such cases, it is the duty of the court, upon a suggestion of the facts by the plaintiff, to order the action to be continued until notice of the suit is given in such manner as the court may direct. Pub. Sts. c. 164, § 6. And the same section gives the court discretionary power, in any case in which the defendant does not appear, to order the action to be continued and further notice given him in such manner as the court may direct. The order of the court requires that notice be given by personal service, or it may order a notice to be given by pub- lication in a newspaper ; or it may be in the alternative. The statutes which provide for a continuance and further notice, apply in terms to all persons who are out of the State at the time of the service of the summons, as well those who never were inhabitants of the State as those who have once had a domicil here. Domicil or permanent residence is not the point on which the question of further notice turns, but actually being in or out of the State. Leonard v. Bryant, 11 Met. 370 ; Thayer v. Tyler, 10 Gray, 164, 168 ; Packard v. Matthews, 9 Gray, 311. SERVICE AND ENTRY OF WRITS. 145 And if service is made by leaving the summons at his last and usual place of abode within the State, and the defendant is actually within the Commonwealtli at the time of such ser- vice, the service is sufiBcient, although the defendaiit's perma- nent residence is elsewhere ; and no further notice is -necessary. Beeder v. Holcomb, 105 Mass. 93. "When a defendant in a personal action is described in the writ as of a place outside the State, and the officer makes return of an attachment of real estate here, and that he left a summons at the defendant's last and usual place of abode in this Commonwealth, this return is sufficient to support the jurisdiction of the court over the action, and to authorize it to order further notice to the defendant, even if he in fact lives out of the State and owns no real estate here. Graves v. Oushman, 131 Mass. 359. If a defendant has formerly lived in Massachusetts and ser- vice of the writ is made at his last and usual place of abode, or if he never resided here, and a valid attachment of property is made in this State, in either case no further notice is neces- sary, if the defendant waives it. Morrison v. Underwood, 5 Cush. 52; Richardson v. Smith, 11 Allen, 134. In a case which calls for further notice, a valid judgment cannot be rendered until such notice has been given; and until then the service upon the defendant is unfinished and incomplete. Consequently, a deposition taken between the date of entry and the return of the order is not admissible in evidence, because taken before " the cause is commenced by the service of process." Lewis v. Northern Railroad, 139 Mass. 294. The same provisions as to continuance and notice to absent defendants apply when the service is defective or insufficient by reason of mistake on the part of the plaintiff or officer as to the place where, or the person with whom, the summons or copy ought to have been left. Pub. Sts. c. 164, § 6. The statutes relating to trial justices and the courts of infe- 10 146 MASSACHUSETTS PKACTICE. rior jurisdictioQ provide that, " When an attachment, is mside upon a writ returnable before a police, municipal, or district court, or a trial justice, and the defendant is out of the State, so that np service can be made on him, and he has no agent or attorney residing within the State, the court or justice may order the action to be continued until notice thereof is given to the defendant in such manner as the court shall order." Pub. Sts. 155, § 19; St. 1893, c. 396, § 18. It may be noted that with respect to the Superior Court and Supreme Judicial Court, the statutes providing for continuance and notice are mandatory, while in the law quoted above as applicable to the lower tribunals, the word '"> may " is used, which apparently imports the exercise of discretion by the court. But where a judgment was obtained in a police court against a defendant who was out of the State, and no personal service was made on him, and the action was not continued nor any further notice given, it was held that a writ of error would lie to reverse the judgment. Smith v. Paige, 4 Allen, 94. The following is a form of order of notice 6y personal ser- vice : — Commonwealth of Massachusetts. Suffolk, ss. Superior Court, April Sitting, a. d. 1893. A. B. of Boston, in said Suffolk, vs. E. F. of the City, County, and State of New York. This is an action of contract to recover five hundred dollars, alleged to be due to the plaintiff from the defendant on the first day of January, 1893, as set forth in the plaintiff's writ of that date. And it appearing to the Court, by the suggestion of the plaintiff, and on inspection of the officer's return on the plaintiff's writ [that the defendant was not an inhabitant of this Commonwealth, nor resident therein at the time of the service of said writ, and that he has no last and usual place of abode, tenant, agent, or attorney, in this Commonwealth known to the plaintiff or to said officer, SERVICE AND ENTRY OF WRITS. 147 and] that no personal service of said writ hap been made upon tlie defendant. [*] It is ordered by tlie Court liere, that the plaintiff give notice to the defendant of the pendency of this action, by serving him with a true and attested copy of this order fourteen days, at least, before the first Monday of May, 1893, that he may then and there appear and show cause why judgment in the above entitled action should not be rendered against him, and that this action be continued to the next term of the court, and so from term to term, until notice shall have been given to the defendant, agreeably to this order. J. A.W., Clerk. The above form may be varied to suit cases where the return on the original process shows that the defendant's or co-defend- ant's residence was unknown to the officer, or where there is a suggestion of mistake as to place or person, as specified in Pub. Sts. c. 164, § 6, cited above, If service is made on the defendant out of the State, the sworn return of the officer and the certificate of a notary public will ordinarily be sufficient proof of the service. Graves V. Cushman, 131 Mass. 359. The order of notice hy publication follows the form printed above as far as the [*] , and then proceeds as follows : — It is ordered by the Court, here, that the plaintiff give notice to the defendant of the pendency of this action, and to appear before said court to be held at Boston, within and for said county of Suffolk, on the first Tuesday of July next, to answer to the same, by caus- ing an attested copy of this order to be published in the B. D. A., a newspaper printed in Boston, once in a week, three weeks suc- cessively, the last publication to be at least fourteen days before the said first Tuesday of July ; and that this action be continued to the next sitting of this court, and so from sitting to sitting, until notice shall be given to the defendant, agreeably to this order. J. A. W., Clerk. Service of this order is proved by returning the original to the clerk's office, indorsed with an affidavit setting forth the 143 MASSACHUSETTS PEACTICK. fact of publication in accordance with the terms of the order, and the days on which the publication was made.* Whenever the real estate of a non-resident is attached in a suit brought in this State, and no personal service is made upon the defendant, it is the duty of the court to dismiss the action, unless notice thereof is given in such manner as the court may direct within one year from the entry of the suit. St. 1884, c. 268. Defective or Insufficient Service. It is provided by Pub. Sts. c. 161, § 84, that when the ser- vice of a writ, process, or order is defective or insufficient, the court or tribunal to which the same is returnable may, upon the motion of the plaintiff or petitioner, issue further writs, processes, and orders, to be served in such manner as may be therein directed ; and upon due service thereof the court or tribunal shall thereby acquire the same jurisdiction of the subject and of the parties as it would have obtained if such service had been made in pursuance and by virtue of the origi- nal writ, process, or order. This statute further provides that the action,- suit, or proceeding shall be continued from term to term, or time to time, until such service is had. It is discretionary with the court to order further service or not. The plaintiff cannot demand further process as a matter of right. Baker v. Copeland, 140 Mass. 342. Special Precepts. At any time during the pendency of a suit, libel, petition, or other proceeding at law or in equity, upon the institution of which an attachment is authorized by law, the court or justice before whom the cause is pending, may, on motion ex parte, upon good cause shown, direct by special precept that an arrest of the defendant, or an attachment of his property 1 111 the Municipal Court of the City of Boston the return is made on the copy furnished by the clerk for the printer. SERVICE AND ENTEY OF WRITS. 149 by trustee process or otherwise, be made to secure the judg- ment or decree which the plaintiff may obtain in the action ; but no order for an arrest can be obtained in this way, except upon affidavit and proof of the same facts as are required to be proved to authorize arrests on mesne process. Pub. Sts. c. 161, 1 85. Such precepts may be issued by any court or trial justice, and may be served by an officer authorized to serve the original process, and may be made returnable as may be directed by the court or justice. Ibid. §§ 85, 87. By whom Process may he Served. It is the duty of sheriffs and their deputies, acting within their respective counties, to serve and execute all writs and precepts lawfully issued to them.^ Pub. Sts. c. 25, § 16. Constables who have given a bond in the sum of f 1,000 may in their own towns serve writs and processes in personal actions in which the damages are not laid at a sum larger than |200, and any process in replevin in which the subject- matter does not exceed in value $200, and any writ or other process under the law relating to summary process for the recovery of land. Or these officers may give bonds in a sum not less than 13,000, and become authorized to serve the pro- cesses described above whenever the ad damnum, or the value of the goods replevied, does not exceed $300. No constable is qualified to serve civil process until he has given a bond. Pub. Sts. c. 27, §§ 113, 114. The precept should contain an express direction, as "to 1 SherifEs and constables may execute precepts in their bands at the time of their removal from office, and in case of a vacancy in the office of sheriff, every deputy in office under him, with a writ or precept in his hands at the time such vacancy happens, is vested with the same authority, and is under the same obligation to serve, execute, and return the process as if the sheriff had continued in office. Pub. Sts. c. 25, 19 ; O'Brien v. Annis, 120 Mass. 143. Process against a sheriff must be served or executed by the sheriff or a deputy sheriff of an adjoining county. Pub. Sts. c. 25, § 20. 150 MASSACHUSETTS PRACTICE. any cotistable of the city of B." br the like, since, without such direction, it will be presumed that the process was in- tended to be served by a sheriff or deputy. Eedrsey v. Brad- bury, 9 Mass. 95 ; Brier v. Woodbury, 1 Pick. 362 ; Wood v. Boss, 11 Mass. 271, 276. See litehman v. Potter, 116 Mass. 371. Sheriffs, deputy sheriffs, and constables may serve, Jby copy attested by them, all demands, notices, and citations, and their returns of such service are made prima facie evidence. Pub. Sts. c. 25, § 17 ; c. 27, § 117. Officers are expressly forbidden, under a penalty, to draw, make, or fill up a writ, declaration, plea, or process for any party in a suit. Pub. Sts. c. 159, § 45. When the writ requires an officer to make an attachment, or for want of property to make an arrest, it is the duty of the officer to serve the writ in either manner according to such written or oral directions as he may receive from the plaintiff or his attorney, if it is in his power to do so, and the form of service is authorized by law. Pub. Sts. c. 161, § 26 ; c. 160, § 5. An officer may, however, require indemnity, usually in the form of a bond, when directed to attach chattels the property to which is deemed questionable, or when, being directed to arrest, he has reasonable doubts as to the identity of the person, or as to the legality of the arrest on other grounds. Marshall v. Hosmer, 4 Mass. 63 ; Marsh v. Gold, 2 Pick. 285. For form of such a bond, see Chapter VIII., post. An attorney who employs an officer to serve a writ and gives him directions therefor renders himself liable for the officer's fees for such service, and for all disbursements made by the officer in the ordinary course of the business entrusted to him, provided reasonable notice is given to the attorney of liabilities incurred, as, for instance, for the storage of personal property iattached. And the fact that the return states that property has been attached is not sufficient notice, of itself, to make the attorney liable for storage charges. Tarbell v. Dickinson,^ duSh. 345. SERVICE AND ENTRY OF WRITS. 151 ARREST ON MESNE PROCESS. The law forbids the arrest of any person 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 district, police, or muni- cipal court, or of a master in chancery, commissioner of insol- vency, or, except iii the county of Suffolk, a trial justice, or justice of the peace : — First, that he has a good cause of action, and reasonable expectation of recovering a sum amounting to twenty dollars, exclusive of all costs which have accrued in any former action ; Seeond, that he believes and has reason to believe that the defendant has property not exempt from being taken on exe- cution, which he does not intend to apply to the payment of the plaintiff's claim ; and, 1 Third, that he believes and has reason to believe that the defendant intends to leave the State, so that execution, if ob- tained, cannot be secved upoii hini. . Or (instead of the second and thiM), 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. The affidavit, and a certificate of the magistrate that he is satisfied the same is true, must be annexed to the writ. Pub. Sts. c. 162, § 1. The following forms of affidavit and certificate are used in Boston : — Commonwealth or Massachusetts. Suffolk^ ss. Municipal Court of the City op Boston, For Civil Business. i J. H. in behalf of the Plaintiff, named in the annexed writ, do on oath declare, that the Plaintiff has a good cause of action against the 'Defendant named in said writ, and reasonable expec- 152 MASSACHUSETTS PRACTICE. tation of recoveHng a sum amounting to twenty dollars exclusive of all costs which have accrued in any former action ; and that I believe, and have reason to believe, that the said 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 that I believe, and have reason to believe, that he intends to leave the State so that execution, if obtained, cannot be served upon him. J. H. Personally appeared the above-named J. H. before said Court, and made oath that the above affidavit by him subscribed is true ; and this certifies that after due hearing, the said Court is satisfied the same is true. "Witness, W. E. P., Esquire, at Boston aforesaid, this nineteenth day of October in the year of our Lord one thousand eight hundred and ninety-three. G. B., Clebk. No person can lawfully 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 court or magistrate, herein before specified, to the facts as set forth in the follow- ing affidavit. Pub. Sts. c. 162, § 2. Commonwealth of Massachusetts. Suffolk ss. Municipal Coukt of the City of Boston, PoE Civil Business. I, J. H., in behalf of the Plaintiff named in the annexed writ, do on oath declare that 1 believe, and have reason to believe, that the Plaintiff has a good cause of action against the Defendant named in said writ ; that he has reasonable expectation of recover- ing a sum equal, at least, to one-third the damages claimed in the writ; and that I believe, and have reason to believe, that the Defendant intends to leave the State, so that if execution be obtained it cannot be served upon him. J. H. Personally appeared the above-named J. H. before the said Court, and made oath that the above aflSdavit, by him subscribed SERVICE AND ENTRY OF -WRITS. 153 is true ; and this certifies that after due hearing, the said Court is satisfied the same is true. Witness, W. E. P., Esquire, at Boston, aforesaid, this nineteentli day of October in the year of our Lord one thousand eight hundred and ninety-three. G. B. Clerk. No arrest can be made after sunset, unless specially author- ized by the magistrate who makes the certificate upon satis- factory cause shown. Pub. Sts. c. 162, § 26. When such an arrest is authorized, it is still permissible to make the arrest in the daytime as if the special authority had not been given. Manuel v. Bates, 104 Mass. 354. Application may be made to any one of the magistrates designated by the statute, and his certificate will be good in any county where the writ or execution will run. In seeking a magistrate for this purpose, no regard need be bad to the residence or place of business of the defendant, or to the place where the arrest is to be made. Francis v. Howard, 115 Mass. 236. The affidavit and certificate must strictly conform to the statute requirements. Wood v. Melius, 8 Allen, 434 ; Stone v. Garter, 13 Gray, 575. An officer is not permitted to make an attachment of the defendant's property and subsequently arrest him on the same writ. Almy v. Wolcott, 13 Mass. 75. But where the attach- ment was abandoned, a subsequent arrest was adjudged legal. Ladrick v. Briggs, 106 Mass. 508. Since the law intends that no person shall be arrested with- out notice of the. demand made upon him, it is a necessary preliminary to an arrest that the writ shall contain a declara- tion. Brigham v. Este, 2 Pick. 420. See Pub. Sts. c. 167, § 7. And although the writ contains the capias clause and declara- tion, and has the necessary affidavit and certificate annexed, the officer will not be liable for failure to arrest, unless he has been expressly required by the plaintiff or his attorney to 154 MASSACHUSETTS PRACTICE; serve the writ in that manner. Pub. Sts. c. 162, § 4. In practice, officers never arrest unless required to do so. An affidavit concerning " the defehdaht " on a writ against two, not specifying which defendant is intended, is insufficient to authorize the arrest of either. Hitchcock v. Baker, 2 Allen, 431. If the date and return day of a writ are altered after making the affidavit, a subsequent arrest thereon is illegal without a new affidavit. Amadon v. Mann, 3 Gray, 467. When a writ describes the cause of action as " contract or tort," it is not clear what form of affidavit would be suffi- cient for an arrest on such a writ. Se6 Hiilett v. Pixley, 97 Mass. 29. Exemption from Arrest. United States senators and members of the House of Kepre- sentatjves, in all cases, except treason, felony, and breach of the peacBi are " privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same." Const, of the U. S. art. I. § 6i Members of the Senate and House of Representatives of Massachusetts are exempted from liability to be arrested or held to bail on mesne process, during their going unto^ re- turning from, or attending the General Assembly. Const, of Mass. Part 2, c. 1, § 3, arts. 10, 11. But a member of the House of Representatives is not so privileged after he has been expelled from that body. Hiss v. Bartlett, 3 Gray, 468. Parties and witnesses attending in good faith any legftl tribunal, whether a court of record or not, which has power to pass upon the rights of persons attending, are privileged from arrest on civil process during their attendance, and for a reasonable time in going and returning, whether they are resi- dents of this State or come from abroad, whether they attend on summons or voluhtarily^ ^nd whether they have or have not obtained writs of protection. Thdmpson's Case, 122 Mass. 428, and cases cited. seevicb: and entry of writs. 155 The creditor of a deceased person is privileged from arrest, on civil process, while attending a meeting of commissioners for the purpose of proving his claim against the estate. Wood V. Male, 3 Gray; 538. No woman is subject to arrest on mesne process, except for tort, and no person can legally be arrested on mesne process in a civil action for slander or libel. Pub. Sts. e. l62, § 3. Infants are not liable to arrest for debt, either upon mesne process or execution. Cassier's Case, 139 Mass. 458. Bail. An oflQcer who receives a writ that iautfaoHzes an arrest of the defendant, with directions to tiiake such arrest, iand actually serves the writ in that manner, is bound, unless a recognizance is entered into as hereafter described, to commit the debtor to prison, or to take good and sufficient bail ; and in case of his failure to do so, he will be liable to the creditor for all damages that may have accrued by reason of such failure. Marsh v. Bcfrtcroft, 1 Met. 4'97. The defendant, when arrested, is entitled to a reasonable time in which to procure bail. Pub. Sts. c. l62, § 27. Bail is taken by a bond from the defendant to the sheriff, if the writ is served by him or his deputy, otherwise to the officer serving the writ. It must be signed by one or two sufficient sureties, with condition that the defendant shall appear and answer to the plaintiff, abide the final judgment of the court, and shall not avoid.^ Pub. Sts. c. 163, §§ 2, 3. The officer may satisfy himself as to the sufficiency of the bond, or it may be approved by a judge of a court of record, 1 " Any bond required to be given by a party in the course of a civil suit or proceeding may be executed by any person ^)ther than the party to the suit or proceeding, and may be approved in the same manner as if executed by such party, if it appears to the magistrate approving it that there is good reason why the same is not signed by such party." Pub. Sts. 0. 161, § 104. 156 MASSACHUSETTS PRACTICE. or of a district, police, or municipal court, or by a master in chancery, commissioner in insolvency, trial justice, or justice of the peace, and, when so approved, the sureties will be deemed sufficient.^ The magistrate's fee is one dollar, to be paid by the applicant. Ibid. §§ 3, 4. A person arrested on mesne process is entitled to a release on giving bail, although he has been refused the oath for the relief of poor debtors, unless he has been sentenced to im- prisonment on a charge of fraud. Pub. Sts. c. 163, § 1 ; Wass V. Bartlett, 10 Gray, 490. The following is the condition of a bail bond : — The condition of this obligation is such, that, whereas the body of the above bounden A. is taken by force of a writ or process bearing date January 20, 1893, wherein B., of said Boston, is plaintiff, and said A. is defendant, returnable before' the justices of the Municipal Court of the City of Boston, next to be holden at said Boston, within and for said county of Suffolk, civil business, on Saturday, the fourth day of February, a. d., 1893, at nine of the clock in the forenoon, to answer unto said plaintiff in an action of contract [or tort] commenced by said plaintiff, to be heard and tried at said court, as by the return of said writ or process will appear. Now, therefore, if the above bounden A. shall appear before the justices of said court, to be holden as aforesaid to answer unto said plaintiff in said action or process, and shall abide the final judgment therein, and shall not avoid, then the above written obligations shall be null and void, otherwise it shall be and remain in full force and virtue. The bond should not be made to a deputy sheriff, but to his superior, the sheriff. Smith v. Adams, 12 Met. 564 ; Gonant V. Sheldon, 4 Gray, 300. In the theory of the law, a defend- ant, after his release, remains in the custody of his bail, and bail may in all cases, at any time before final judgment, sur- render tlieir principal in the court where the suit against the principal is pending ; after judgment they may surrender him 1 In the Superior Court an attorney will not be accepted as bail or surety in any civil suit or proceeding in that court. Rule XI. Sup. Ct. SERVICE AND ENTRY OP WRITS. 157 to the officer holding the execution at any time before its return. Pub. Sts. c. 163, § 21. In case of the avoidance of the principal, the bail may be made liable, on scire facias, to satisfy the judgment, with interest thereon. ATTACHMENT. Whai may be Attached. As a general rule, to which, as will hereafter appear, there are many exceptions, the defendant's property of all kinds, both real and personal, may be attached in any action in which debt or damages are recoverable, and may be held as security to satisfy such judgment as the plaintiff may recover. By the terms of the statute " 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 this Commonwealth, and except as provided in the following section [relating to railroad cars, engines and steamboats] may be attached." Pub. Sts. 161, § 38. The following property is liable to be taken on execution : — (a) All the lands of a debtor in possession, remainder, or reversion, all his rights of entry into laiids and of redeeming mortgaged lands, and all such lands and rights which have been fraudulently conveyed by him with intent to defeat, delay, or defraud his creditors ; or which have been pur- chased or directly or indirectly paid for by him,i but the 1 Land conveyed to a married woman and paid for in part by her and in part by her husband, without any participation by her in his fraudu- lent purpose, cannot be attached as his property. The creditor's remedy is by a bill in equity under Pub. Sts. c. 151, § 2, cl. 11. Snow v. Paine, 114 Mass. 520 ; Bresnihan v. Sheehan, 125 Mass. 11; and see Pub. Sts. o. 151, § 3. A right to redeem land from a tax sale is not attachable. Adams V. Mills, 126 Mass. 278. When a debtor is only instantaneously seized as an instrument or conduit to pass the title to another, the conveyances being all parts of one transaction, his seizin is not such as will support an attachment. -Hazelton v. Lesure, 9 Allen, 24. 158 MASSACHUSETTS PKACTICE. record title thereto retained in the vendor or conveyed to a third person, with intent to defeat, delay, or defraud the creditors of the debtor, or on a trust for him express or implied, whereby he is entitled to a present conveyance. Pub. Sts. c. 172, § 1. (6) Terms of one hundred years or more, so long as fifty years remain unexpired, and estates tail which can he law- fully barred by the person entitled thereto, may be attached like estates in fee-simple. Pub. Sts. c. 121, § 1 ; c. 172, § 2. (c) Current gold and silver coin, bank notes, and all other bills or evidences of debt issued by a moneyed corporation and circulated as money ; and, generally all chattels real or per- sonal, and all other goods which by the common law are liable to be taken on execution, except as is otherwise provided by the statutes relating to the levy of executions. Pub. Sts. c' 171, §§ 31-33. Of Beat Property. When real estate or any leasehold estate is attached, the officer notes the fact on the writ, together with the time when the writ came into his hands. It is then his duty to deposit the original writ or a certified copy of it, which need not con- tain the declaration, and so much of the officer's return as relates to the attachment of the estate, in the registry of deeds for the county in which the lands lie ; but in counties that have more than one office for the registry of deeds, viz. : Berkshire, Bristol, Essex, and Middlesex, the copy and return should be deposited in the registry of deed^ for the district where the lands lie.? Pub. Sts. c. 161, § 62. 1 " If the writ or copy is deposited as aforesaid within three days after the day when the attachment was made, the attachment shall take effect from the time it was made, otherwise from the time when the writ or copy is 80 deposited; but attachments of real estate and of leasehold estates having an original term of more than seven years shall not be valid against purchasers in good faith for a valuable cqnsidera,tioTi, other than parties defendant to the suit, except from the time when the writ or SERVICE AND ENTRY OF WRITS. 159 In attaching ree^l property or a fight or interest in land, it is not necessary for the officer to enter upon, or be within view of, the land attached. Ibid. § 61. In most cases, the return made is that he has attached all the right, title, and interest of the defendant in and to a,ny and all real estate within the county or district (naming it), in which the land attached lie^. This is called a general attachment, and is valid. Woodward v. Sartwell, 129 Mass. 210. Where prop- erty fraudulently conveyed tq another is sought to be attached as the property of the defendant, the return is that the officer has attached the real estate of A. B. (the defendant) stand- ing in the name of C, D., describing it. This is called a special attachment, and the return must in such cases con- tain a brief description of the estate attached, by its locality, situation, boimdaries, or otherwise, as known to the officer, and the name or names of the person or persons in whom the record or legal title stands. Pub. Sts. c. 161, § 66. It may sometimes be deemed expedient to except from a general attachment a certain specified portion of the defend- ant's real estate upon which the plaintiff holds a mortgage. See Atkins v. Sawyer, 1 Pick. 351; Orane v. March, 4 Pick. 131 ; Johnson v. Stevens, 7 Cush. 431. As to the remedies of a creditor who attaches real estate subject to a mortgage which is subsequently foreclosed by sale, see Wiggin v. Heywood, 118 Mass. 514; Gardner v. Barnes, and Eldridge v. Kingsbury, 106 Mass. 505 ; Judge v. Herlert, 124 Mass. 330. Of Personal Property. Attached personal property, not incapable of immediate removal, passes at once into the possession of the officer and copy is deposited as aforesaid." Pub. Sts. c. 161, §65. See Cowley y. McLaughlin, 141 Mass. 181 ; Jones v. Mitchell, 158 Mass. 385. The officer's fees are, for travel four cents a mile from the place of ser- vice to the place of deposit, together with his fee, for the copy. Pub. Sts. 0. 161, § 63. 160 MASSACHUSETTS PRACTICE. must be retained in his custody or under his supervision. He may, if necessary, appoint an agent called a keeper, who will take charge of the attached property for a reasonable time, before the officer can remove it and take it into his own personal custody ;, but the officer is answerable to both plain- tiff and defendant for any want of due and ordinary care, either on the part of himself or his agents, in the treatment and care of the property. Parrott v. Dearborn, 104 Mass. 104 ; Pub. Sts. c. 161, § 42 ; Cutter v. Sowe, 122 Mass. 541. Personal property attached may be kept upon the premises where it is found, unless the owner or occupant of the prem- ises in writing requests the officer to remove the keeper or the property therefrom. When such request is made, it is the duty of the officer to comply, without unreasonable delay. And when the defendant in writing requests the officer to allow the property to remain there until he may give bond to dissolve the attachment, the property cannot rightfully be removed until after reasonable opportunity has been afforded to give such bond. Pub. Sts. c. 161, §§ 42, 43. As to what constitutes unreasonable delay, see Williams v. Powell, 101 Mass. 467 ; Davis v. Stone, 120 Mass. 228 ; Gutter v. Howe, iibi sujpra. When articles attached, 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 at- tachment 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 is equally valid and effectual as if the articles had been retained in the possession and custody of the officer. Pub. Sts. c. 161, § 69. This method of attachment has been held applicable to large quantities of wood and coal. Beed v. Howard, 2 Met. 36 ; hay in a barn, Merrill v. Sawyer, 8 Pick. 397 ; a large quantity of hewn stone, Hemmenway v. Wheeler, 14 Pick. 408 ; also to fifty tons of pig iron, and a quantity of large SERVICE AND ENTRY QF WRITS. 161 plates of glass, Scovill v. Boot, 10 Allen, 414 ; Polley v. Lenox Iron Works, 4 Allen, 329 ; also of heavy iron lathes and planers in use in a factory, Riggins v. Drennan, 157 Mass. 384. Tobacco stored in barns and in process of curing was attached in this manner because it could not then be removed without great damage, and the court said that it was proper to consider the liability of the property to injury, as well as the expense and difficulty of removal.^ Cheshire Nafl Bank V. Jewett, 119 Mass. 241. In computing the three days allowed for depositing the copy of the writ in the clerk's office, the day of the attach- ment is excluded. Bemis v. Leonard, 118 Mass. 502. If the goods of separate owners are mingled together, the officer has no right to attach the whole stock without first endeavoring to ascertain what particular portion of the stock belongs to the defendant. Carleton v. Davis, 8 Allen, 94. Different attachments may be made successively upon the same writ by one or more officers, and in one or more coun- ties, at any time before the service of the summons ; but no further attachment can be made after the summons is served, except upon a special precept. Pub. Sts. c. 161, §§ 40, 85-88. Goods attached cannot, while the attachment subsists, be attached by another officer, but other writs may be given to the officer in charge, who may then make successive attach- ments thereon of the same property, without any further act of taking possession on his part. Vinton v. Bradford, 18 Mass. 114 ; Bohinson v. Ensign, 6 Gray, 300. An exception occurs when property attached or taken on execution by a constable is sought to be further attached by a deputy sheriff or other competent officer, upon a precept 1 Whether the oflScer can safely leave the attached property in the possession of the defendant, after " the diflBoulty of its removal," is no longer an element in the case, — Quoere. See Cheshire Nat'l Bank v. Jewett, and Higgins v. Drennan, uhi supra. II 162 MASSACHUSETTS PEACTICE. which the officer in possession is not authorized to serve. Under these circumstances, the constable is required to make return upon his writ of his doings thereon, and deliver it, with the possession of the property, to such other officer for him to complete the service ; or, if the original writ has been returned into court, the constable is required to file in the case a certificate of the fact of such surrender of possession. Pub. Sts. c. 161, § 41. When goods are taken from an attaching officer by replevin, they are considered as still remaining in his custody and con- trol, so far as to be liable to further successive attachments, in like manner as if the goods themselves had remained in his possession. Ibid. §§ 45, 49. The share or interest of a stockholder in a corporation or- ganized under the laws of this State, or under the laws of the United States, and located or having a general office in this State, and dividends afterwards accruing, may be attached, by leaving an attested copy of the writ (without the declara- tion) and of the return of the attachment with the clerk, treasurer, or cashier of the company, if there is such officer ; otherwise, with any officer or person who has, at the time, custody of the books and papers of the corporation. Pub. Sts. c. 161, §§ 71, 12} As to the attachment of railroad cars, see Pub. Sts. c. 161, § 69 ; Rail v. Carney, 140 Mass. 131. 1 By Pub. Sts. c. 105, § 24 (St. 1881, c. 302) it was provided that no sale, assignment, or transfer of stock in a domestic corporation shall affect the title or rights of an attaching creditor, until it is recorded upon the books of the corporation, or a new certificate is issued to the person to whom it has been transferred. " But no attachment of such stock as the property of the vendor, made after such sale, assignment, or transfer, shall defeat the title or affect the rights of the vendee, if such record is made or a new certificate issued within ten days after such transfer is made." The law as stated above was substantially modified by the St. 1884, c. 229, which provides that the delivery of a certificate to a bona fide pur- chaser or pledgee, for value, together with a written transfer of the same, or a written power of attorney to sell or assign it, signed by the owner of the certificate, " shall be a sufficient delivery to transfer the title as against all SERVICE AND ENTRY OF WRITS. 163 Of Chattels mortgaged or 'pledged. Personal property of a debtor subject to a mortgage, pledge, or lien, and of which he has the right of redemption, may be attached in three ways according to the facts of the particular case.^ (1) Such property, whether in the possession of the owner, of the mortgagee or pledgee, may be attached and held in like manner as if it were unincumbered ; provided the attaching creditor pays or tenders to the mortgagee, pawnee, or holder of the property the amount for which it is so liable, within ten days after the same is demanded as hereinafter stated. Pub. Sts. c. 161, § 74 ; Eowe v. Bartlett, 1 Allen, 29 ; Sullivan T, Laml, 110 Mass. 167. " The effect of such attachment is to defeat or suspend the lien." Stearns v. Bean, 129 Mass. 139, 142. This is the usual mode of proceeding when there is no con- troversy as to the validity of the mortgage or the amount due upon it, or when the attaching creditor is content to take the mortgagee's account of the matter, subject to such penalties and securities as the law provides in case of a false account. Jackson v. Colcord, 114 Mass. 60, 61. The demand must be made within a reasonable time {John- son V. Sumner, 1 Met. 172 ; Brachett v. Bullard, 12 Met. 308) parties," ipc. This appears to be a return to the principle laid down in Fisher v. Essex Bank, 5 Gray, 373, and Boston Music Hall v. Cary, 129 Mass. 485. And it seems that the same rule applies to stock of national banks. Sibley v. Quinsigamond National Bank, 133 Mass. 515. 1 At the common law mortgaged personal property could not be attached or taken on execution, and it cannot now be taken on execution unless it has first been attached on mesne process in the manner prescribed by the statutes. Badlam v. Tucker, 1 Pick. 389 ; Lyon v. Goburn, 1 Cush. 278. But if the mortgage is fraudulent and void as to creditors, an execution may be levied on the property as if there were no mortgage, and without any preceding attachment. Sherman v. Davis, 137 Mass. 132. The interest of the mortgagee is not attachable. Prout v. Root, 116 Mass. 410; Murphy v. Oalloupe, 143 Mass. 123. 164 MASSACHUSETTS PRACTICE. and accompanied by a statement in writing, delivered to the attaching creditor or officer, containing a just and true account of the debt or demand for which the property is liable to the person making the demand. And if the same is not paid or tendered to him within ten days thereafter, the attachment is thereupon, dissolved by operation of law, the claimant is en- titled to the possession of the property, and the attaching creditor is responsible for any damages that may have been sustained by reason of the attachment.^ Pub. Sts. c. 161, §§ 75-78. The purpose of the demand is to give the officer or attach- ing creditor notice of the existence of the claim, and such information as to its nature and amount as will enable him to act understandingly in reference to it. If it is sufficiently ex- plicit and accurate to answer these purposes, it is not rendered invalid by mere informalities. If made in good faith, it will not be defeated by inaccuracies or other defects which do not tend to mislead, or by which the parties in the particular case could not be damnified. Folsom v. Clemence, 111 Mass. 273 ; Brewster v. Bailey, 10 Gray, 37 ; Bobinson v. Sprague, 125 Mass. 582. " To avoid the objection that the statement of the debt is not true and just by reason of overstating the sum due, it must appear : 1st. That the error resulted from accident or mistake ; 2d. That the value of the property attached was less than the just and true sum for which it was pledged, and, therefore, the attaching creditor was not injuriously misled by the error, and has not suffered any pecuniary loss thereby." Rowley v. Bice, 10 Met. 7. If the mortgage is held as security against future contingent liabilities, the demand and notice should be adapted to the character of the mortgage, and the attaching creditor can re- tain his attachment only by paying or tendering the whole 1 This statute does not apply to attachments made by virtue of process from the courts of the United States. Howe v. Freeman, 14 Gray, 566. SERVICE AND ENTEY OF WRITS. 165 amount for which the property is contingently liable to the mortgagee. Godman v. Freeman, 3 Cush. 306 ; Bicknell v. Cleverly, 125 Mass. 164; Bogers v. Abbott, 128 Mass. 102. When goods are incumbered by three mortgages to one person, a demand which specifies the claim under one of the mortgages only will not support a claim under either of the others. Witham v. Butterfield, 6 Cush. 217. The following may serve' as a form of demand : — Waltham, Mass., March 1, 1893. To A. B. Deputy Sheriff. Sir : You are hereby notified that the horse, wagon, and har- ness held by you under attachment as the property of C. D. are incumbered by a certain mortgage given to me by the said C. D., dated Febuary 15th, 1893, and duly recorded in the records of the city clerk of said Waltham, to secure a promissory note for three hundred dollars. And I hereby demand the sum of three hundred dollars with interest thereon, at six per cent per annum , from the date of said mortgage ; being the amount due and remaining unpaid and for which said property is liable to me under said mortgage. E. F. (2) When the mortgaged property is in the possession of the mortgagor, it may be attached as if unincumbered ; and the mortgagee or his assigns may be summoned in the same action in which the property is attached as the trustee of the mortgagor or his assigns, to answer such questions as may be put to him or them by the coui't, or by its order, touching the consideration of the mortgage and the amount due thereon. Pub. Sts. c. 161, § 79. And the mortgagee cannot replevy the property or sue for its conversion during the continuance of the attachment. Furber v. Dearborn, 107 Mass. 122 ; Jackson V. Colcord, 114 Mass. 60. When this method is adopted, the creditor or attaching ofiicer cannot be required to make payment or tender, but the creditor has a right to try the validity of the mortgage, either by examining the mortagee under oath, or by a trial before a jury at his election in 166 MASSACHUSETTS PRACTICE. order to ascertain the amount, if anything, that is justly due upon it. Pub. Sts. c. 161, §§ 80, 81. A trustee writ in the usual form may be used for the above purpose. Emery v. Seamy, 148 Mass. 566. Whether the validity of the mortgage is established by a jury trial or by the court upon its own inquiry, it is the duty of the court to ascertain the amount justly due upon it, and to make a conditional order directing the attaching creditor to pay the amount to the mortgagee or his assigns within a fixed time; and that, in default of such payment or tender within the prescribed time, the attachment -shall be void and the property restored. Pub. Sts. c. 161, § 80. The statute contemplates the payment and discharge of the mortgage, and the creditor cannot in equity compel the mort- gagee to assign it to him. Cochrane v. Bich, 142 Mass. 15. A creditor who has chosen the remedy under Pub. Sts. c. 161, § 79 by attaching the property and summoning the mortgagee as trustee, must pursue it until the validity of the mortgage has been tried and determined, or else relinquish his attachment. He cannot discontinue as to the trustee after the latter has in his answer alleged the validity of the mortgage, and still preserve a lien upon the property at- tached. In such a case the attachment is at once dissolved. Martin- v. Bayley, 1 Allen, 381. See also, Goulding v. Hair, 133 Mass. 78 ; Jackson v. Kimball, 121 Mass. 204 ; Porter V. Warren, 119 Mass. 535. Otherwise, when the trustee disclaims all right as mortgagee, he is for that reason discharged. Simmons v. Woods, 144 Mass. 385. If a mortgagee summoned as trustee is defaulted, he cannot, as in ordinary trustee process, be charged and made liable to pay or deliver to the creditor, nor can scire facias be issued against him, because one of the prerequisites to this mode of toaking an attachment is that the goods shall be in the pos- session of the mortgagor. If, however, the mortgagee enters no appearance and files no answer, but suffers a default, he SERVICE AND ENTRY OF WRITS. 167 will be so far concluded by the proceedings that he cannot maintain an action against the oflBcer for conversion of the property. Flanagan v. Cutler, 121 Mass. 96. (3) When the property is in the possession of the mort- gagee or pledgee, he may be summoned as trustee of the mortgagor in an ordinary trustee process, in which case there is no attachment of the goods as such. Pub. Sts. c. 183, §§ 66-70. Hooton v. Gatnage, 11 Allen, 354. And when a third person who is in possession of the goods is summoned as trustee of the mortgagor, this does not prevent the mortga- gee from bringing replevin, without a demand or statement of the amount of his lien. Putnam v. Gushing, 10 Gray, 334. As the rights and remedies of the mortgagee are seriously affected by the form of the attachment, a plaintiff seeking to attach chattels incumbered by a mortgage must elect one of the three modes of procedure stated above. It is not open to him to take out a writ, make an attachment by the first mode, and subsequently insert the name of the mortgagee as trustee, and proceed according to the second method. Brown v. Neale, 3 Allen, 74. Nor can he attach goods in the posses- sion of the mortgagee, summon the latter as trustee, and, upon a subsequent discontinuance against the trustee, treat the attachment as if made under Pub. Sts. c. 161, § 79. Porter V. Warren,!!^ Mass. 535. A mortgagee of chattels may attach the mortgaged property in a suit to recover the debt for which the mortgage was given, but, as the liens created respectively by mortgage and by attachment are different in their nature and cannot coexist, the attachment is, in itself, a waiver of the lien created by the mortgage. Bu,ck v. Ingersoll, 11 Met. 226 ; Evans v. Warren, 122 Mass. 303 ; Cochrane v. Bich, 142 Mass. 15. Of Property of Married Women. The personal property of a married woman doing business on her separate account, is liable to attachment as the prop- 168 MASSACHUSETTS PRACTICE. erty of her husband, unless he or she records in the clerk's ofBce of the city or town in which she does business a certifi- cate setting forth her name and that of her husband, the nature of the business and the place where it is carried on, giving, if practicable, the street and number. Pub. Sts. c. 147, § 11.1 In the absence of a certificate, the husband is liable upon contracts made in the prosecution of the business, even when made upon the sole and exclusive credit of the wife. Pub. Sts. c. 147, § 11 ; Feran v. Budolphsen, 106 Mass. 471. As to the form of the certificate, see Cahill v. Campbell, 105 Mass. 40 ; Long v. Drew, 114 Mass. 77 ; Harriman v. Gray, 108 Mass. 229 ; Mason v. Bowles, 117 Mass. 86 ; O'Neil v. Wolff- sohn, 137 Mass. 134. For cases in which it was held that the statute did not apply, see Proper v. Cobb, 104 Mass. 589 ; Wheeler v. Bay- mond, 130 Mass. 247 ; mil v. Wright, 129 Mass. 296 ; Lock- wood V. Corey, 150 Mass. 82. Of Partnership Property. In a suit at law against one member of a partnership, the personal chattels of a partnership are exempt from seizure and removal on mesne process, to the exclusion of the firm from its possession.^ Sanborn v. Boyce, 132 Mass. 594 ; Craw- ford V. Capen, Ibid. 596, note. In a suit against two or more co-partners upon their joint debt, the separate property of any one of the partners may be attached, and the lien thus obtained is not impaired by a sub- sequent attachment of the same property on a writ in favor 1 This statute is held to apply to the furniture used in a boarding- house and the debts due for board. Chapman v. Briggs, 11 Allen, 546 ; Harnden v. Gould, VH Mass. 411; also to the business of carrying on a farm, as farms are usually carried on, by buying the stock and materials and selling the surplus produce. Snow v. Sheldon, 126 Mass. 332. ^ See St. 1884, c. 285, for the remedy by a bill in equity to reach a partner's interest. SERVICE AND ENTRY OF WRITS. 169 of a separate creditor of the same partner. Stevens v. Perry, 113 Mass. 380, and cases cited. On the other hand, an attachment of the partnership prop- erty in a suit against one of the partners for his separate debt must yield to the superior rights of the partnership creditors. Trowbridge y. Cushman, 24 Pick. 310 ; Lewis t. Wehler, 116 Mass. 450 ; Peck v. Fisher, 7 Cush. 886. ' EXEMPTIONS FROM ATTACHMENT. By the Common Law. The statute which makes liable to attachment all personal estate that may be taken on execution excepts " 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 this Commonwealth." Pub. Sts. c. 161, § 38. By the common law, property was exempt which was of such a nature that it could not be returned in the same plight, and that an attachment of it would produce a sacrifice and great injury to the defendant, without benefiting the plaintiff ; as, for instance, the defendant's private papers and books of account, crops not yet ripe or fit to be gathered, and hides in a vat for tanning. Bond v. Ward, 7 Mass. 123. A watch or other property in the defendant's actual possession and use, or worn as part of his dress or apparel, is exempt from attachment. Mack v. Parks, 8 Gray, 517. But it has long been held, in this State, that corn or other annual products of the soil, when ripe and in a fit state to be gathered, may be attached or seized on execution, severed from the realty, and sold, like other personal property. Penhallow v. Dwight, 7 Mass. 34 ; Heard v. Fairbanks, 5 Met. 11 ; Mulligan v. New- ton, 16 Gray, 211 ; Cheshire National Bank v. Jewett, 119 Mass. 241. Property delivered to an officer by a person arrested is not liable to attachment, nor can the officer be summoned to an- 170 MASSACHUSETTS PRACTICE. swer in trustee process against the person arrested. RoMtv- son V. Howard, 7 Cush. 257 ; Morris v. Penniman, 14 Gray, 220. Statute Exemptions. Every householder having a family is entitled to an estate of homestead, to the extent in value of eight hundred dollars, 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; provided the intention to hold the property as a homestead be set forth in the deed of conveyance by which the property is acquired, or, after the title has been acquired, by writing duly signed, sealed, acknowledged, and recorded in the registry of deeds for the county or district where the property is situated. And such homestead, except in certain specified calses, is declared to be exempt from subsequent attachment or levy on execution. When a declaration is filed after the acquisition of the property, the exemption thus claimed does not operate as against debts previously con- tracted. Pub. Sts. c. 123, §§ 1, 2, et seq. No attachment of real estate can be made on a writ re- turnable before a trial justice, or district, police, or municipal court, unless the ad damnum exceeds twenty dollars. Pub. Sts. c. 161, § 38. Railroad cars and engines in use and making regular pas- sages on railroads, and steamboats so in use upon water-routes, cannot, within forty-eight hours previous to their fixed time of departure, be attached upon mesne process, unless the offi- cer making such attachment has first demanded of the owners or managers thereof other property, upon which to make such attachment, equal in value to the ad damnum in the writ, and such owners or managers have refused or neglected to comply with said demand ; and such attachment will be void unless the officer certifies in his return that he has made such de- mand, and that the same has been refused or neglected ; and no ship or vessel can be attached on mesne process in an SERVICE AND ENTRY OF WRITS. 171 action at law, unless a declaration is inserted in the writ before service thereof, nor unless the plaintiff or some person in his behalf makes affidavit and proves to the satisfaction of some justice of a court of record, district, police, or municipal court, master in chancery, commissioner of insolvency, and, except in the county of Suffolk, trial justice or justice of the peace, that he has a good cause of action and reasonable ex- pectation of recovering a sum amounting, exclusive of all costs, to at least one third, the damages demanded in such writ, which affidavit, and the certificate of the magistrate that he is satisfied that the same is true, must be annexed to the writ. Pub. Sts. c. 161, § 39. Railroad cars are, for the pur- poses of attachment, personal property, and may be attached in the mode prescribed by Pub. Sts. c. 161, § 69, after the requirements of the statute above cited have been first com- plied with. Hall V. Carney, 140 Mass. 131. The press, type, stands, cases, paper, and other personal property used in printing and publishing newspapers are exempt from attachment within forty-eight hours previous to the issue of any edition, unless the officer has made previous ineffectual demand for other property. St. 1890, c. 377. The following articles of personal property of a debtor are declared by Pub. Sts. c. 171, § 84, to be exempt from liability to be taken on execution, and, consequently, from attachment : First. — The necessary wearing-ajpparel of himself and of his wife and children. This exemption extends to cloth and trim- mings placed in the hands of a tailor by the debtor for the purpose of being made into clothing necessary for himself or family. Richardson v. Buswell, 10 Met. 506. 0ns bedstead, bed, and the necessary bedding for every two persons of the family. Beds used by the workmen and house- keeper of an unmarried man are not exempt. Brown v. Wait, 19 Pick. 470. One iron stove used for warming the dwelling-house, and fuel not exceeding the value of twenty dollars procured and designed 172 MASSACHUSETTS PRACTICE. for the use of the famUy. Formerly (St. 1817, c. 108), the stove, in order to be exempt, must have been used exclusively for the purpose named above, but the present statute admits of a more liberal construction. Brown v. Wait, 19 Pick. 470. Second. — Other household furniture necessary for him and his family not exceeding three hundred dollars in value. A plain, cheap sofa, and two carpets of eighteen yards each were held to come under this provision. Davlin v. Stone, 4 Cush. 359. The debtor is entitled to the exemption of " other household furniture " to the amount stated, if it fairly comes within the class considered necessar}"^ for him and his family, without reference to the question whether, in a particular case, the amount allowed by law is necessary. Mannan v. Merritt, 11 Allen, 582. And the articles need not be such as are absolutely indispensable, and without which the debtor cannot live, but must be so essential as to be regarded as amongst the necessaries of life, as distinguished from luxu- ries. The circumstances of particular cases may call for the finding of a jury, with a view to enabling the court to decide whether an article is " necessary " or not, within the meaning of the statute. Davlin v. Stone, ubi supra. Third. — The Bibles, school-hooks, and library, used by him or his family, not exceeditig fifty dollars in value. Fourth. — One cow, six sheep, one swine, and two tons of hay. This is held to exempt a hog killed and dressed ; and a heifer twenty months old, which had never given milk, but which the owner intended to keep for a cow, having no other. CHib- son V. Jenney, 15 Mass. 205 ; Carruth v. Grassie, 11 Gray, 211 ; Johnson v. Babcock, 8 Allen, 583. A debtor who owns two animals, one of which is exempt from attachment, may elect which one shall be exempt, but he should in due time notify the officer of such election, or he will be held to have waived the privilege of choice. Savage v. Davis, 134 Mass. 401. If one of the animals is mortgaged, the debtor is entitled to claim the unincumbered one. Tryon v. Mansir, 2 Allen, 219. SERVICE AND ENTRY OF WRITS. 173 Fifth. — The tools, implements, and fixtures necessary for carrying on his trade or business, not exceeding one hundred dollars in value. This provision was intended for the protection of mechan- ics, artisans, and handicraftsmen, and others, whose manual labor and skill afford means of earning their livelihood. It has accordingly been held to apply to tailors, shoemakers, milliners, fiddlers, and carriage-makers ; but it does not in- clude those who are merely engaged in the business of buying and selling merchandise, nor exempt their weights and meas- ures, horses, carriages, and other articles, used by them in their trade. Wallace v. Bartlett, 108 Mass. 52, and cases cited. Nor does this exemption apply to persons engaged in and con- ducting any large and extended manufacturing business re- quiring considerable capital and the co-operation of a large number of workmen, as for instance a pa^er-mill. Smith v. Gibbs, 6 Gray, 298. But see Daniels v. Hayward,^ Allen, 43. As to the meaning of " tools," see Zovewell v. Westchester Fire Ins. Co., 124 Mass. 418 ; Bowling v. Clark, 1 Allen, 283 ; Daniels v. Hayward, ubi supra. When the debtor has two trades, the exemption applies to the tools used by him and his journeymen and apprentices in both, provided such tools do not, together, exceed the statute limit of value. Baker v. Willis, 123 Mass. 194 ; Howard v. Williams, 2 Pick. 80 ; Pierce v. Gray, 7 Gray, 67. Nor does he lose the benefit of the exemption by a temporary suspension of the exercise of his trade, if he intends to resume it when opportunity shall offer. Caswell v. Keith, 12 Gray, 351. Sixth. — Materials and stock designed and procured by him, and necessary for carrying on his trade or business, and in- tended to be used or wrought therein, not exceeding one hundred dollars in value. This provision applies to the same class of persons as the preceding clause. It may include materials and stbck in- 174 MASSACHUSETTS PKACTICE. tended to be used in carrying on more than one trade or busi- ness. Eager v. Taylor, 9 Allen, 156. But it does not exempt the stock of a shopkeeper or pedler. Reed v. Neale, 10 Gray, 242 ; Gibson v. Gibbs, 9 Gray, 62 ; Wilson v. Elliot, 7 Gray, 69; and see Smith v. Gills, 6 Gray, 298. Neither clause applies to partnership property. Pond v. Kimlall, 101 Mass. 105. Seventh. — Provisions necessary and procured and intended for the use of the family, not exceeding fifty dollars in value. 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, come within the meaning of this clause. Mulligan v. Newton, 16 Gray, 211. Provisions procured and kept both for the purpose of sale and for the use of the debtor's family ; and not set apart or claimed, at the time of the seizure, to be kept for the lat- ter use only, are not exempt. Nash v. Farrington, 4 Allen, 157. Eighth. — One pew occupied by him or his family in a house of public worship ; provided that nothing herein contained shall prevent the sale of any pew for the non-payment of a tax le- gally laid thereon. Ninth. — The boat, fishing-tackle, and nets of fishermen, actu- ally used by them in the prosecution of their business, to the value of one hundred dollars. Tenth. — The uniform of an officer or soldier i/n the mdlitia, and the arms and accoutrements required by law to be kept by him. By St. 1893, c. 567, the " uniforms, arms, and equipments " of commissioned officers are exempted from " all suits, dis- tresses, executions, or sales for debt or payment of taxes." Eleventh. — Bights of burial and tombs while in use as re- positories for the dead. Twelfth. — One sewing-machine, not exceeding onet hundred dollars in value, in actual use by each debtor or by Ms family. SERVICE AND ENTKY OF WEITS. 175 This is in addition to the exemption of tools under clause Fifth. Bayner v. Whicher, 6 Allen, 292. Thirteenth. — Shares in co-operative associations formed under Pub. Sts. c. 106, not exceeding twenty dollars in value in the aggregate. Since the statute exemptions operate as exceptions to the general rule, the debtor may by his acts or omissions waive his right to claim an exemption, and when exempted articles are mingled , with other property it is his duty to make his claim seasonably, that is, in most cases, at the time of the attachment ; and, in any subsequent action against the officer, the burden will be upon the debtor to show that the officer did not leave property sufficient in kind and value to satisfy the requirements of the law. Gay v. Southworth, 113 Mass. 333 ; Clapp V. Thomas, 5 Allen, 158 ; Wood v. Keyes, 14 Allen, 236 ; Nash v. Farrington, 4 Allen, 157. The statutes on this subject are, nevertheless, to be con- strued liberally, in furtherance of the humane views of the legislature in enacting them. Richardson v. Buswell, 10 Met. 506, 507. Wages for the personal labor and services of the debtor are exempt from attachment, in all cases, to the amount of ten dollars ; and when the demand is other than for necessaries furnished to the debtor or his family, the amount of the ex- emption is twenty dollars. The wages of the defendant's wife and minor children are absolutely exempt from attachment for his debt. Pub. Sts. c. 183, §§ 29-32 ; Cook v. SolbrooJc, 6 Allen, 572 ; Darling v. Andrews, 9 Allen, 106. The wages or lay due or accruing to any seaman, fishermen excepted, cannot legally be attached by trustee process. St. 1886, c. 194 ; St. 1890, c. 289. And money or other benefit, charity, relief, or aid paid or furnished by assessment insurance companies authorized to do business under the laws of this State is not liable to attach- ment in any form. St. 1890, c. 421, § 23. 176 MASSACHUSETTS PRACTICE. No sum of money due or to become due to any pensioner of the United States is liable to attachment, levy, or seizure, by or under any legal or equitable process whatever, while the money remains with the Pension OflSce or any officer or agent thereof, or is in course of transmission to the pensioner en- titled thereto. Rev. Sts. U. S. § 4747. In the laws of the United States respecting national bank- ing associations, it is provided that " no attachment, injunc- tion, or execution shall be issued against such association, or its property, before final judgment in any suit, action, or pro- ceeding in any State, county, or municipal court." Rev. Sts. U. S. § 5242. The property of a person who has been adjudged insolvent, whether on voluntary or involuntary proceedings, is exempt from attachment, at least after the first publication of notice.^ Williams v. Merritt, 103 Mass. 184 ; Gallup v. BoUnson , 11 Gray, 20. So also are goods in a custom-house, the duties being unpaid, Dennie v. Harris, 9 Pick. 364 ; and property the sale of which is forbidden by law. Ingalls v. Baker, 13 Allen, 449 ; Kif v. Old Colony & Newport Bailway, 117 Mass. 591. See Pub. Sts. c. 100, § 1. DISSOLUTION OP ATTACHMENT. An attachment of real or personal estate, however made, is subject to dissolution in several ways, either by operation of law or by the acts of the parties. 1 A voluntary assignment by a citizen of another State in trust for the payment of his debts, and without other sufficient consideration, does not, except so far as assented to by the creditors for whose benefit it is made, affect the liability of the debtor's property to attachment here, at the suit of a citizen of this State. If assented to, such assignments, whether made here or in another State, are good at common law, and will protect property here from attachment to the extent of the amount due to the assenting creditors. National Mechanics' §• Traders' Bank v. Eagle Sugar Refinery, 109 Mass. 38; May v. Wannemacher, IH Mass. 202; Pierce v. O'Brien, 129 Mass. 314. SERVICE AND ENTET OF -WRITS. 177 By Operation of Law. An attachment may be dissolved, — First, — By a final judgment for the defendant. The final judgment intended is that which is rendered in the suit in which the attachment is made, whether upon appeal or other- wise, and not such as may be rendered upon a writ of error or writ of review. Pub. Sts. c. 161, §§ 54, 55. Second, — By the death of the defendant before the prop- erty is taken or seized on execution, provided administration is granted in this State, or application therefor is made, within one year after his decease, and administration is afterwards granted upon such application; otherwise, the property re- mains bound by the attachment as if the debtor were still living. When goods are attached, the officer must, upon de- mand, deliver them to the executor or administrator, if any is appointed as above stated, upon receipt of his legal fees and charges for attaching and keeping them. Pub. Sts. c. 161, §§ 56, 57 ; Parsons v. Merrill, 6 Met. 356 ; Day v. Lamb, 6 Gray, 623. But the sureties on a bond 'given to dissolve an attachment are not released by the defendant's death, although his estate is insolvent. Gass v. Smith, 6 Gray, 112. Third, — By the lapse of thirty days after the day of the entry of final judgment for the plaintiff, without the begin- ning of a levy on execution, or, in case of a trustee attach- ment, without a demand made upon the trustee by force of an execution.! Pub. Sts. c. 161, § 52 ; c. 183, § 45. 1 If the attachment is made in the county of Nantucket, and the judg- ment is rendered in any other county, or vice versa, the property is held for sixty days after judgment. Pub. Sts. o. 161, § 52. In stiits in equity, when an appeal may be claimed from a final decree of a single justice, the property attached will be held for thirty days after such right of appeal expires. Ibid. § 53. If no other rights have intervened, the trustee is still bound to pay on the execution the amount for which he is liable, even after the thirty days have elapsed. Fub. Sts, c. 183, § 46. 12 178 MASSACHUSETTS PRACTICE. Fourth, — By assignment under the insolvency laws of this State.^ Such assignment vests in the assignee all the prop- erty of the debtor, not specially exempted, and dissolves any attachment on mesne process made within four months prior to the time of the first publication of notice. Pub. Sts. c. 157, § 46 ; Grant v. Lyman, 4 Met. 470 ; Butterfield v. Converse, 10 Cush. 317. Attachments are not affected if the proceedings in insol- vency are suspended and no assignment is executed, Hill V. Keyes, 10 Allen, 258 ; Denny v. Merrifield, 128 Mass. 228 ; or if the attachments were legally made more than four months before the first publication. (fNeil v. Harrington, 129 Mass. 591 ; Sullivan v. Langley, 128 Mass. 235. But a discharge granted by the court, in composition proceedings under St. 1884, c. 236, is effectual to dissolve any attachmen,t on mesne process made not more than four months prior to the time of giving notice by the register to the creditors of the debtor's proposal of composition as required by law. St. 1889, c. 406. The insolvency court may order the lien created by the attachment to continue for the benefit of the assignee. Pub. Sts. c. 157, § 47. But should the debtor afterwards die during the pendency of the proceedings, the attachment is thereby dissolved. Day v. Lamb, 6 Gray, 523. See Denny V. Lincoln, 13 Met. 200 ; Bacon v. Lincoln, 2 Cush. 124 ; Mclntire v. Maynard, 4 Gray, 429 ; Gardner v. Way, 5 Allen, 452. It is the duty of an ofiicer holding goods under an attach- ment which becomes dissolved by insolvency to deliver the goods to the assignee upon demand ; and for a delivery so made while the assignment is in force, the ofiicer cannot be * An assignment made by judicial or legislative authority under the insolvent laws of another State does not afiect an attachment made here in a suit to recover a debt due here to a citizen of this State. Pingree v. Hudson River Ins. Co., 10 Gray, 170; Taylor v. Columbian Ins. Co., 14 Allen, 353, and cases cited. SERVICE AND ENTRY OF WRITS. 179 held liable, even if the proceedings are subsequently annulled for informality. Penniman v. Freeman, 3 Gray, 245. But if the goods are subject to a mortgage, they must be delivered to the mortgagee. Jffowe v. Bartlett, 8 Allen, 20. An attachment of partnership property is not dissolved by reason of the insolvency of one partner alone after a dissolu- tion of the partnership. Fern v. Gushing, 4 Cush. 357. Fifth, — By failure to return the writ and enter the action in court. Thomas v. Blake, 126 Mass. 820 ; Varian v. New England Mut. Accident Ass'n, 156 Mass. 1. When, in the Su- perior Court, an appeal or complaint for non-entry of an appeal has been entered late, it is provided, that " attachments made and security given in the original action shall not be revived or continued in force by the entry of an appeal or complaint of the original plaintiffs allowed under this section, but shall remain discharged." Pub. Sts. c. 152, § 16. And when a question arising on an appeal or exceptions, or a complaint for non-entry, is entered late in the Supreme Judicial Court, it is similarly provided that " no security by bond, attachment, or otherwise, which has been discharged by the omission of either party to enter the question or complaint, shall be re- vived and continued in force by the entry of such question or complaint." Pub. Sts. c. 150, § 17. But where an action with consent of the defendants was entered late in the Muni- cipal Court of the City of Boston, the rules of which provide for late entries upon motion and order, it was held that a bond given to dissolve an attachment could be enforced. Zee V. James, 150 Mass. 475. Sixth, — By amendments allowed without notice to third parties interested, when the effect of such amendments is to increase the defendant's liability, or to introduce a new cause of action. Pub. Sts. c. 167, § 85. Freeman v. Creech, 112 Mass. 180. And see cases under Amendments, Part. II. Seventh, — By abandonment. An attachment of personal property wiU be dissolved if the goods cease to be in the 180 MASSACHUSETTS PRACTICE. custody, actual or constructive, of the officer or his agents. Whether, in a given case there has been an abandonment, is generally a question of fact to be determined by the jury, with due reference to the intention of the officer. Bagley v. White, 4 Pick. 395 ; Boynton v. Warren, 99 Mass. 172 ; Harriman v. Gray, 108 Mass. 229 ; Commonwealth v. Brigham, 123 Mass. 248. Eighth, — When the attachment is of goods subject to a mortgage, pledge, or lien, by the expiration of ten days after demand by the mortgagee, pledgee, or holder of the property, without payment or tender, by the attaching creditor, of the amount due. Pub. Sts. c. 161, § 75. Ninth, — By foreclosure and sale of attached real estate, under a prior mortgage. It has, however, been held that the surplus remaining in the hands of the mortgagee, after satisfy- ing his own debt and charges, may be attached by legal or equitable process served before the money is paid over. If the action is still pending, it seems that the attaching creditor may, in some cases, make a trustee attachment by supple- mentary process under Pub. Sts. c. 161, §§ 85-88. If he has obtained judgment, he may bring a trustee process on the judgment, or a suit in equity, within thirty days after the date of his judgment. Gardner v. Barnes, and Bldridge v. Kings- bury, 106 Mass. 505 ; Wiggin v. Heywood, 118 Mass. 514 ; Judge V. Herbert, 124 Mass. 330. Dissolution by Bond. First, — When an appraisal has been made preliminary to a sale of perishable property, the debtor is entitled to posses- sion of the attached property upon his depositing with the officer the appraised value thereof in money, or giving bond to him in a sufficient penalty and with two sufficient sureties, conditioned to pay to him the appraised value of the goods, or satisfy all such judgments as may be recovered in the suits in which the goods were attached, if demanded within the time SERVICE AND ENTRY OF WRITS. 181 during which the goods would have been held by the respec- tive attachments, or within thirty days after the time when the creditors respectively would have been entitled to demand payment out of the proceeds of the goods if they had been sold. Pub. Sts. c. 161, § 95. Second, — When personal property, belonging to two or more persons, is attached in a suit against one or more of the part-owners thereof, the law provides for a similar appraisal of the property on the request of one of the owners not a de- fendant, and the delivery of the property to such part-owner upon his giving bond to the officer with two sureties, and con- ditioned to restore such property in like good order, or to pay the officer the appraised value of the defendant's share or in- terest therein, or to satisfy all such judgments as may be recovered in the suit in which it is attached, if demanded within the time during which the property would have been held by the respective attachments. Ibid. §§ 105, 106. The officer is entitled to possession of the whole property to the exclusion of the part-owners not parties to the suit, unless a bond is given as above provided. And he may sell the debtor's undivided interest. Beed v. Howard, 2 Met. 36 ; Hayden v. Binney, 7 Gray, 416. Partnership property cannot be released from attachment by a bond in this form.^ Brech v. Blair, 129 Mass. 127. No action can be maintained on the bond of a part-owner, if the defendant part-owner has, after the giving of the bond, dissolved the attachment by giving a bond under Pub. Sts. c. 161, § 122, as hereafter described. Dearhorn v. Bichardson, 108 Mass. 565. Third, — Any person or corporation whose goods or estate are attached on mesne process in a civil action may, at any time before final judgment, dissolve such attachment by giv- ing a bond with sufficient sureties, to be approved by the * See St. 1884, c. 285, as to bond for the release of the interest of a co-partner attached by process in equity. 182 MASSACHUSETTS PRACTICE. plaintiff or his attorney in writing, or by a master in chan- cery, or by a justice of a court of record, or of a district police, or municipal court, or commissioner of insolvency, when the attachment is made within the jurisdiction of such justice or commissioner, and conditioned as in the following form. Pub. Sts. c. 161, § 122; St. 1888, c. 405 : — Know all men by these presents, that we, A. B. of Cam- bridge, in the County of Middlesex and Commonwealth of Massachusetts, as principal, and C. D. and E. F. both of Bos- ton, in the County of Suffolk and Commonwealth aforesaid, as sureties, are holden and stand firmly bound and obliged unto G. H. of Chelsea, in said County of Suffolk, in the full and just sum of one thousand dollars, to be paid unto said G. H., his executors, administrators, or assigns : To which payment, S" well and truly to be made, we bind ourselves, our heirs, execu- g tors, and administrators, jointly and severally, firmly by these ^ presents. J" Sealed with our seals. Dated the twenty-first day of May, :{3 in the year of our Lord one thousand eight hundred and ninety- 's three. ^ The condition of this obligation is such, that whereas said M G. H. has caused the goods and estate of said A. B. [in the g hands and possession of J. S.J to the value of one thousand J dollars, to be attached on mesne process, in a civil action, by virtue of a writ, bearing date the nineteenth day of May, a. d. '6 1893, and returnable to the Superior Court next to be holden .| at Boston, within and for the County of Suffolk aforesaid, in P said Commonwealth, on the first Monday of July next, in which V writ said G. H. is named as plaintiff, and said A. B. is named o as defendant [and said J. S. is alleged trustee] ; and whereas said defendant wishes to dissolve the said attachment accord- ing to law. Now, therefore, if the above bounden A. B. shall pay to the plaintiff in said action the amount, if any, which he shall recover therein, within thirty days after the final judgment in said action ; and also pay to the plaintiff in said action, within thirty days after the entry of any special judgment in said action, in accordance with chapter one hundred and seventy- one of the Public Statutes of Massachusetts, or chapter 405 of SERVICE AND ENTRY OF 'WRITS. 183 the Acts of the year 1888, the sum, if any, for which such special judgment shall be entered, then the above written obli- gation shall be null and void ; otherwise, to remain in full force and virtue. Signed, sealed, &c. Suffolk, ss. May 21, a. d. 1893. The above named sureties and bond are approved by me. J. R., Master in Chancery. Except when the bond is approved in writing by the plain- tiff or his attorney, the party whose goods or estate are at- tached, or some one in his behalf, is required to make application in writing to the magistrate, specifying the names and places of residence of the persons proposed as sureties. The plaintiff is entitled to notice of the time and place of hearing before the magistrate on the question of the sufficiency of the sureties, who must either be satisfactory to the plaintiff, or it must be made clearly to appear to the magistrate that each one, if there are but two, is worth, above his debts, a sum equal to the amount of the attachment ; or if there are more than two, that they are together worth twice such sum. The plaintiff or his attorney may, and commonly does, waive notice of the hearing ; or he may .approve the bond, even after a magistrate has refused to approve it. Daley v. Carney, 117 Mass. 288 ; Pub. Sts. c. 161, §§ 122, 123. The fees of the magistrate are, for hearing and decision, one dollar ; for the citation, fifty cents. If the attachment is dissolved and the defendant prevails, these fees may be taxed in his costs. Ibid. § 124. The bond should be filed by the defendant with the clerk of the court to which the writ is returnable, or in which the action is pending, within ten days after its approval ; and the attachment is declared not to be dissolved until the bond is so filed.^ Ibid. § 125. Upon the due approval and filing of the 1 When an attachment has been dissolved by the giving of a bond under § 122, and acts in addition thereto and amendments thereof, and 184 MASSACHUSETTS PRACTICE. bond, the attachment is dissolved without any order of the court.i UHan v. Downing, 130 Mass. 16. A bond duly executed by the debtor and accepted by the creditor for the purpose of dissolving an attachment, although it does not conform to the provision of the statute, may be enforced as a common-law security, provided the conditions are intelligible, and it is for a valid legal consideration, is not given in violation of the statute, and contains no Illegal pro- visions. Smith V. Meegan, 122 Mass. 6 ; Campbell v. Brown, 121 Mass. 516 ; Masher v. Murphy, Ibid. 276, and cases cited ; Central Mills v. Stewart, 133 Mass. 461. But for a form of bond improperly drawn and of no value to the plaintiff after the trustee had been discharged, see Caldwell v. Sealey, 121 Mass. 549. When the property of two defendants is attached, and is released by a bond in this form, the sureties are not dis- •within four months after such attachment is made, proceedings in insol- vency are instituted by or against the person whose property was at- tached, the action in which the attachment was made may be continued at the suggestion of any party interested, and if the debtor obtains his discharge, it is declared to " operate as a release of the sureties on said bond to dissolve such attachment from all liability thereon," provided that the claim on which the suit was brought is one which would have been discharged if proved in the insolvency proceedings. St. 1889, c. 470. 1 Whenever an attachment is dissolved by giving bond, the clerk of the court will furnish a certificate of the fact in the following form: — Commonwealth of Massachusetts.' Suffolk, ss. Clerk's Office, Superior Court. G. H. V. A. B. [and trustee']. I hereby certify that, in the above-named action, a bond for the pur- pose of dissolving the attachment made in said action has been filed with me this day. May 21, 1893. $1,000. Ket., July 1893. J. A. W., Clerk. Suit may be brought on the bond at the expiration of the thirty days, and no previous demand need be made or execution taken out. Campbell v. Brown, 121 Mass. 516. SERVICE AND ENTRY OF WRITS. 185 charged by a discontinuance as to one defendant or by a fail- ure to recover against one of them at the trial. Leonard v. Speidel, 104 Mass. 356 ; Poole v. Dyer, 123 Mass. 363 ; Gamp- bell V. Brown, 121 Mass. 516, supra. The result is different where new parties are summoned and judgment is obtained against parties who are not mentioned in the bond. Tucker V. White, 5 Allen, 322 ; Richards v. Storer, 114 Mass. 101. Fourth, — If the defendant desires to release the property attached, or some part of it, and does not desire to give the bond prescribed by Pub. Sts. c. 161, § 122, he may release the property, or such portion as he may elect, from attachment by giving a bond to the plaintiff to be approved in the manner stated above, with condition to pay to the plaintiff within thirty days after final judgment in such action, or after the entry of a special judgment therein under Pub. Sts. c. 171, or St. 1888, c. 405, the sum fixed as the value of the property so released, or so much of said sum as may he necessary to satisfy the amount, if any, that the plaintiff may recover. If the parties do not agree upon the value of the property, the value is ascertained by appraisers appointed by a magistrate after notice to the parties. The provisions in respect to filing are the same as in the case of the bond last described. The magistrate's fees are fl.OO for each citation, and $2.00 for each hearing and each adjournment. Pub. Sts. c. 161, §§ 126, 12T ; St. 1888, c. 405. Fifth, — When real property standing in the name of a person other than the defendant is attached, the person in whose name the record title stands may dissolve the attach- ment by giving a bond with sureties, conditioned to pay to the plaintiff, if he establishes his title to the land in a writ of entry against the person having the record title thereto at the time of the attachment, the sum ascertained to he the value of the land, or so much thereof as shall satisfy the amount, if any, which the plaintiff shall recover upon final judgment, or special judgment under Pub, Sts. c. 171, in the suit in which the 186 MASSACHUSETTS PRACTICE. attachment was made. Pub. Sts. c. 161, § 128. All the pro- ceedings are the same as provided by Pub. Sts. c. 161, §§ 126, 127. See Commonwealth v. Gostello, 120 Mass. 358, 368. Sixth, — A defendant whose individual property is attached in an action against several defendants may dissolve the at- tachment, or any part thereof, in the Third, Fourth, or Fifth modes previously described ; but in order to dissolve the attachment, the bond must be so conditioned as to apply only to a judgment recovered against such defendant alone or jointly. Pub. Sts. c. 161, § 129 ; Eveleth v. Burnham, 108 Mass. 374 ; Walker v. Dresser, 110 Mass. 350. Seventh, — An attachment by trustee process may be dis- solved by operation of law ( Wilmarth v. Bichmond, 11 Oush. 463; Blume v. Gilbert, 124 Mass. 215), or by bond of the defendant, as prescribed in the case of an ordinary attach- ment, care being had to set forth in such bond the fact that a trustee has been summoned; or any person having an interest by assignment or otherwise in the funds attached may give a bond in a sum not exceeding the damages de- manded, conditioned to pay the amount for which the trustee may be charged, &c. Pub. Sts. c. 183, §§ 71, 72 ; Atwood v. W. Boxbury Co-operative Bank, 156 Mass. 166. In the latter case, however, the form of the bond required by the statute implies that the case shall proceed so far as to charge the trustee, in order to ascertain the amount which may be recov- ered on the bond ; and if, for any reason, the trustee is dis- charged, no action can be maintained on the bond. Porter v. CHles, 129 Mass. 589 ; Cunningham v. Hogan, 136 Mass. 407. Any of the foregoing bonds may be signed by any person other than the party, and may be approved in the same man- ner as if executed by such party, if it appears to the magis- trate approving it that there is good reason why it is not signed by the party himself. Pub. Sts. c. 161, § 104. Formerly, if, after giving a bond to dissolve an attachment, the defendant was adjudged a bankrupt or insolvent and SERVICE AND ENTKY OF WEITS. 187 obtained his discharge during the pendency of the suit, the sureties could not be made liable on the bond, although the attachment dissolved by it was more than four months old at the time of the beginning of the bankruptcy proceedings, and therefore would not have been affected by them. Loring V. Eager, 3 Cush. 188 ; Carpenter v. Turrell, 100 Mass. 460. This led to the enactment of the St. 1875, c. 68 (Pub. Sts. c. 161, §§ 122, 126, 128), which required the insertion in the bond of a clause binding the sureties to pay the amount of any special judgment that might be rendered in the action. See also St. 1888, c. 405. Sale of Attached Property. ^ When personal 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 is required to sell it in the manner prescribed by law for selling like property on execution ; and the proceeds, after deducting the necessary charges, will be held by the officer, subject to the attachments and liable to be disposed of in like manner as the property would have been held and disposed of if it had remained unsold. Pub. Sts. c. 161, § 89. A deputy sheriff may, in the conduct of the sale, with the consent of the parties, deviate, from the course of proceeding marked out by the statute, as by selling at private sale or on credit. In such cases he acts as the agent of the parties, and his superior, the sheriff, is not liable for any neglect or mis- feasance in making such sale, but he is liable as for a breach of official duty if, after final judgment, the deputy fails to pay over the proceeds to the rightful owner. New Hampshire Savings Bank v. Varnum, 1 Met. 34 ; Mansfield v. Sumner, 6 Met. 94. An officer who sells in any manner except as authorized by law, unless the parties consent or waive objection, is liable as a trespasser ah initio, McGough v. Wellington, 6 Allen, 505. 188 MASSACHUSETTS PEACTICE. If the attachment is dissolved after a sale, the proceeds will go where the original property would have gone, i. e. to the defendant, or his administrator or assignee, or whoever is entitled thereto at the time of the dissolution. Edwards v. Sumner, 4 Cush. 393 ; First Ward Nat'l Bank y.. Thomas, 125 Mass. 278 ; Thomas v. Blahe, 126 Mass. 320. When an attachment is made of live animals or goods and chattels which are liable to perish, waste, or be greatly re- duced in value by keeping, or which cannot be kept without great and disproportionate expense, and the parties do not consent to a sale as provided above, the property attached may, upon the request of either of the parties interested, be examined, appraised, and sold, or delivered to the defendant, upon his depositing money or giving other security. Pub. Sts. c. 161, § 90.1 The following will serve as a form of application for such a sale : — Commonwealth of Massachusetts. Suffolk, ss. Boston, May 31, 1893. To B. F. B. , one of the Deputy Sheriffs of said County. Whereas, on the 30th day of May, current, you attached cer- tain personal property on a writ issued from the Superior Court in favor of A. B. against C. D., and returnable on the first Mon- day of July next, to said Court for the County of Suffolk, which property is liable to be greatly reduced in value by keeping, and cannot be kept without great and disproportionate expense : there- fore, I request that said property may be examined, appraised, and sold, pursuant to the statute in that behalf provided, and the proceeds held by you to respond to such judgment as may be recovered in said suit, or to be otherwise disposed, of according to law. A. B. 1 The above statute does not anthorize a sale under an attachment made in a suit to enforce a lien upon a vessel. Coburn v. Clark, 3 Allen, 207. SERVICE AND ENTRY OF WRITS. 189 When application is made, as above described, by either party, the officer gives notice to all the other parties or their attorneys, prepares a schedule of the goods, and causes three disinterested persons acquainted with the nature and value of such goods to be appointed and sworn before himself or a magistrate, to the faithful discharge of their duty as apprais- ers. The appraisers are appointed, one by the creditor or creditors in the several suits, one by the debtor or debtors, and one by the officer ; and if the debtors or creditors respec- tively neglect to appoint, or do not agree in the nomination, the officer appoints one in their behalf. After the appraisal, the property may be sold by the officer, and the proceeds held and disposed of as in the case of a sale by consent of parties. Pub. Sts. c. 161, §§ 91-94. The proceedings of appraisers duly appointed are conclu- sive upon the officer. If they certify that a case requiring a sale exists, he is bound to sell, unless security be given. But if they certify that no such case exists, he has no authority to make sale. Ibid. § 94. Crocker v. Baker, 18 Pick. 407. And when the attachment is dissolved by a bond given after a sale, the officer, in paying over the proceeds, is entitled to deduct the necessary charges of the sale ; and even if the defendant subsequently prevails in the suit, he has no remedy for the recovery of such charges, either of the plaintiff or of the officer. Pollard v. Baker, 101 Mass. 259. It has been assumed by the court that when mortgaged goods are attached and the mortgagee is summoned as trustee, the goods may be sold in accordance with the pro- visions of Pub. Sts. c. 161, § 90, and no provision is made for giving notice to the mortgagee. Jackson v. Colcord, 114 Mass. 60. See Porter v. Warren, 119 Mass. 535, 538. But where the attached property was sold for a sum less than was found to be due to the mortgagee ; it was decided that the mortgagee was entitled to an order for the payment of the sum due, without regard to the sale. This construction " renders the 190 MASSACHUSETTS PKACTICE. right to attach mortgaged perishable property in this man- ner of little value, as it either takes away or makes impracti- cable and valueless the right to sell the goods attached." McDonald v. Faulkner, 154 Mass. 34. Excessive and Fraudulent Attachments. If an attachment is excessive, the defendant may make application in writing, in any county, to a justice of the court to which the process is returnable, for a reduction of the amount. The justice will order notice to the plaintiff, re- turnable before himself or some other justice of the same court as speedily as circumstances will permit. And if, after a summary hearing, it is found that the attachment is exces- sive, the justice will order it to be reduced, or a part of the goods or estate to be released ; and thereafter the attachment will be deemed to be reduced or partially released, according to such order. Pub. Sts. c. 161, § 121. Except in actions before a trial justice, a holder of a subse- quent lien created by attachment, purchase, mortgage, or in any other manner, may dispute the validity and effect of a prior attachment by presenting a petition in the court where the suit is pending in which the prior attachment was made, setting forth the grounds of his own claim and the facts and circumstances on which his petition is founded,, and praying that ^ the prior attachment may be dissolved. The petitioner, or some one in his behalf, must make oath that his claim is just and legal, and that all the other facts set forth in the petition are true, or are believed by the deponent to be so ; and if it appears to the court, upon hearing and inquiry, that a part of the sum demanded in the prior suit is not justly due, or was not payable when the action was begun, it is the duty of the court to pass an order dissolving, the attachment either wholly or in part, as justice requires. Ibid. §§ 110-120. See Baird v. Williams, 19 Pick. 381. The words " any other manner " in the preceding paragraph SERVICE AND ENTRY OF WRITS. 191 " were intended to protect a title to property acquired other- wise than by attachment, purchase, or mortgage ; for in- stance, by pledge or other lien ; or where real estate descends to an heir, or personal estate goes to an executor. But in all cases the petitioner's title must be derived subsequently to the attachment sought to be dissolved." Peirce v. Richardson, 9 Met. 69. The proceedings under the petition are to some extent separate and distinct, inasmuch as the adjudication thereon touches the attachment only, without affecting the progress or the result of the principal suit as between the parties. But the petition is deemed to be a proceeding in the cause in which the disputed attachment is made. Baird v. Williams, 19 Pick. 381, 883, 384. And for practical reasons, attach- ments made on writs returnable before trial justices, whether made before or after an attachment in a suit in a higher court, are excluded from the application of the statutes. Putnam v. Bixby, 6 Gray, 528. officer's return. It is the officer's duty to have the precept in court on or before the day on which it is returnable, together with his report or return of his doings, indorsed on the writ ; also any bail bond, or bond given to him in lieu of an attachment. Pub. Sts. c. 168, § 6 j c. 161, §§ 96, 109. In practice it is often found convenient, when there is no arrest or attachment, for the officer to give the writ to the plaintiff's attorney before the return day, by whom, if no settlement is previously made, it is entered in court. But when an arrest or attachment has been made, a careful officer will generally prefer to see for himself that the writ is deposited with the court ; for in order to justify his proceedings he must be prepared to show a return of his writ, or that there was a settlement, and an agreement that he need not return it. Paine v. Farr, 118 Mass. 74 ; Wiggin v. Atkins, 136 Mass. 292. The subject of the proper form and sufficiency of officers' 192 MASSACHUSETTS PRACTICE. returns does not come within the scope of this book. It will be sufficient to state a few general principles applicable to the subject, which are established by a long series of decisions. The return of an officer, as to all matters which are properly the subject of his return, is conclusive upon parties and privies to the returned process, and cannot be contradicted in the suit or proceeding in which it is made. The officer may be made liable in a separate action against him for making a false re- turn ; and whenever he relies upon his return as justification, its correctness is put in issue, and is only prima facie evidence in his favor. Slayton v. Chester, 4 Mass. 478 ; Pullen v. Hayn,es, 11 Gray, 379 ; Baker v. Baker, 125 Mass. 7. But an extra-official return, as that a copy of the writ was given to the defendant at a place out of the officer's precinct, is no evidence of notice to the defendant. Arnold v. Tourtellot, 13 Pick. 172. If no place of service is named, the presump- tion is that it was within the officer's precinct. Richardson v. Smith, 1 AUpn, 541. It is within the discretionary power of the courts to allow officers to amend their own returns provided such amendment is according to the truth and fact. The officer's application for leave to amend must be supported by his affidavit to the truth of the proposed correction or addition, and the determi- nation of the Superior Court upon the truth of the facts alleged as the ground for the motion is conclusive. Hammond V. Eaton, 15 Gray, 186 ; Johnson v. Day, 17 Pick. 106. It seems that no notice is required to be given ; but any party affected by the amendment may apply to the court to annul the order allowing the amendment. Balch v. Shaw, 7 Cush. 282. The courts have no authority to allow an amendment, inserting a new and material fact in a return on an execution, without some evidence that the proposed amendment conforms to the truth. Bayley, Pefr, 182 Mass. 457. In the case last cited, the officer's affidavit was not considered sufficient, taken in connection with the other evidence adduced. SERVICE AND ENTRY OF WRITS, . 193 INDORSEMENT FOR COSTS. Original writs, writs of audita querela, writs of scire facias by private persons on a judgment or recognizance, writs of error in civil cases, petitions for certiorari, writs of and peti- tions for review, in which the plaintiff is not an inhabitant of the State, are required to be indorsed before entry by some sufficient person who is such an inhabitant. If one of the .plaintiffs, where there are several, resides within the Common- wealth, no indorsement is necessary. Pub. Sts. c. 161, § 24 ; c. 187, § 38. The aim of the foregoing provisions of law is to furnish defendants with security, within reach of the process of the court, for the payment of their costs if the defence prevails. And every indorser, in case of avoidance or inability of the plaintiff, will be held liable to pay all costs awarded against the plaintiff, if the suit therefor is begun within a year after the original judgment. Pub. Sts. c. 161, § 24; Sherburne v. She;pard, 142 Mass. 141. If none of the plaintiffs reside in the Commonwealth, in- dorsement is a necessary preliminary, and the absence of it may be taken advantage of by a motion to dismiss the action, or for a non-suit. If the omission has occurred by accident, mistake, or inadvertence, the court may allow the plaintiff to furnish an indorser at any stage of the case, upon such terms as may seem just and reasonable. Pub. Sts. c. 161, § 25. If the matter of the omission is not brought to the attention of the court by motion or plea of the defendant filed within the time allowed for entering an appearance, he will be deemed to have waived the objection. Carpenter v. Aldrich, 3 Met. 58. The words "Office of A. B." [the plaintiff's attorney], or " Prom the office of A. B.," stamped or written upon the back of a writ, have been held a sufficient indorsement. Slate v. AcUey, 8 Cush. 98 ; Wheeler v. LynAe, 1 Allen, 402 ; Seagrave V. Erickson, 11 Cush. 89 ; Morrill v. Zamson, 138 Mass. 115. 13 194 MASSACHUSETTS PRACTICE. In Slate v. Ackley, uhi su;pra, the court said : " When the writ is actually indorsed by the attorney who issues it, being a reg- ular attorney of the court from which it issues and to which it is returnable, and there is no other indorser, such attorney must be taken to be an indorser within the meaning of the statute, and bound to the responsibilities incident to that character." As to releasing an indorser, see Savage v. Blanchard, 148 Mass. 348. In order to avoid any question as to the intention with which an attorney or other person places his name upon a writ, the words " indorsed for costs," or something equivalent, should be written on the back of the writ, and signed by the person who purposes to assume liability for the defendant's costs.^ In all actions on administration bonds, brought in the name of the judge of probate, the writ must be indorsed by the persons for whose benefit or at whose request the action is brought, or by their attorney ; and when the action is for the benefit of creditors or next of kin, a further indorsement is required, stating that fact. Pub. Sts. c. 143, § 15. See Bennett v. Russell, 2 Allen, 587. 1 When an action is brought for an infant by his next friend, and one of them is not an inhabitant of the State, the question arises, which is the "plaintiff" contemplated by the statutes concerning indorsement. On this point there has been considerable difference of opinion ; Judge Howe, in his work on Practice (p. 110), taking the view that the prochein ami was the real party plaintiff, and Colby (p. 74) being of the opinion that the infant's residence determines the question. The cases are not decisive. See Crossen v. Dryer, 17 Mass. 222; Smith v. Floyd, 1 Pick. 275 ; Blood v. Harrington, 8 Pick. 552 ; Crandall v. Slaid, 11 Met. 288 ; Bradford v. French, 110 Mass. 365. In the case last cited, the court, by Wilde, J., while deciding that the prochein ami is not liable, as such, for costs, said : " In all cases, if the defendant doubts the ability of the infant to pay costs, the prochein ami may be compelled to indorse the writ, or to procure a sufficient indorser, or to become non-suit." See further, as to powers of next friend, Tripp v. Gifford, 155 Mass. 108. SERVICE AND ENTRY OF WRITS. 195 In a suit upon a sheriff's bond, an indorsement is required to be made by the person for whose benefit the suit is insti- tuted. Pub. Sts. c. 25, § 9. In an action brought in the name of an officer on a bond given to dissolve an attachment, the writ must have indorsed upon it, in addition to the usual indorsement, the names of the creditors by whom the action is brought : and if judgment is rendered for the defendant, all whose names are so indorsed will be liable for costs. Pub. Sts. c. 161, § 97. For the law concerning indorsement after entry, see Part 11. post. ENTRY OP ACTIONS. In the Supreme Judicial and Superior courts, lists of actions intended for entry must be handed to the clerk with the writ and declaration in each, on or before the return day, and such , actions are entered by the clerk upon the docket, with the name of the plaintiff's or appellant's attorney in the margin. Rules I., II. Sup. Jud. Ct. ; Rule IX. Sup. Ct. In the Municipal Court of the City of Boston, and in dis- trict and police courts, the time allowed for entries is between the hours of nine o'clock a. m. and twelve o'clock M., on the return day, except that in district and police courts actions of summary process for recovery of land must be entered between nine o'clock and ten o'clock A. M. on the return day. No list of actions entered is required in this, or in police, municipal, or district courts, generally. The entry fees in all courts must be paid at the time of entry. Rules I., II. Sup. Jud. Ct. ; Rule VIII. Sup. Ct. ; Rules I., II. Mun. Ct.; Rules I., XI. Dist. and Police Cts. Tlie rules of the Superior Court, and of the Municipal Court of the City of Boston, provide that no action shall be entered until after the writ has been returned and filed, except the court shall otherwise order ; nor will an appeal be entered without such order unless the copies or originals, as the case 196 MASSACHUSETTS PRACTICE. may be, from the lower court, are produced and filed. Rule VIII. Sup. Ct. ; Rule I. Mun. Ct. The time for the entry of an action returnable before a trial justice expires with the hour named in the writ ; that is, if the writ is returnable at nine o'clock, it should be entered before ten o'clock. If not so entered, the defendant may refuse to appear or may appear for the sole purpose of moving to dismiss the action. Blanchard v. Walker, 4 Gush. 455. When a writ has been lost, the court may allow the plain- tiff to enter a sworn copy of the writ and officer's return. When the return day falls on a legal holiday, the entry must be made as usual, unless, as it is sometimes done in the courts of inferior jurisdiction, a special order is passed extend- ing the time. Pub. Sts. c. 160, § 4. See Rule XXXIII. Mun. Ct. Late Entry. In accordance with long-continued practice, actions may be entered after the prescribed time by leave of court, with the consent of the adverse party, or for sufficient cause. When the entry is allowed without the consent of the adverse party having been first obtained, the court orders notice in writing to be given to each of the opposing parties before a certain time fixed by the order, and may impose other. terms.. Before the enactment of the St. 1885, c. 384, the Supreme Judicial and Superior courts were accustomed for cause shown to allow actions to be entered at any time during the return term, and not afterwards. In view of the changes introduced by the statute last cited above, the court has now. no power to allow an action to be entered after the next subsequent return day. Dudley v. Keith, 153 Mass. 104. In the Municipal Court of the City of Boston notice of a motion for late entry must be given on or before the next Thursday, and no costs will be allowed to the plaintiff for travel and attendance before the next term. And unless it SEKVICE ANir ENTEY OF WRITS. 197 appears on the first day of the next term that the order has been fully complied with, the action will be stricken from the docket, unless the court allows further time for notice. The notice is proved by afiidavit filed in court with a copy of the notice given, and this must be filed even when the op- posing party has consented to the late entry. Rule I. Mun. Ct.; Rule III. Sup. Ct. ; Rule I. Sup. Jud. Ct.; Rule I. Dist. & Police Cts. As to the effect of a late entry upon attachments or other security in the case, see ante, p. 179 ; Varian v. New England Mut. Accident Ass'n, 156 Mass. 1. Non-Hntry. Failure on the part of the plaintiff to enter his writ is a discontinuance of the action ; and if the defendant or trustee files a complaint in due time, he will be entitled to judgment for his costs. Pub. Sts. c. 155, § 23 ; Lombard v. Oliver, 5 Gray, 8 ; Harding v. Downs, 110 Mass. 56 ; Duffee v. Gall, 123 Mass. 318 ; Cardival v. Smith, 109 Mass. 158, 160. It seems that such a complaint must be filed before the next succeeding return day. Budley v. Keith, 153 Mass. 104. No particular formality is required in the form of com- plaint. It is sufficient to describe the writ, file a copy or the original summons served on the defendant or trustee, allege the time and manner of service, and pray for judgment for costs. Harding v. Downs, ubi supra. 198 MASSACHUSETTS PRACTICE. PHAPTER V. JOINDER OF ISSUE— REMOVAL OF ACTIONS. APPEARANCE. In all actions at law in the Supreme Judicial or the Superior Court, a defendant or trustee who has been served with process must, in order to prevent a default, enter an appearance in writing within ten days from the return day of the writ ; but, for good cause shown, the time for entering such appearance may be extended by the court ; St. 1885, c. 384, §§ 7, 9 ; Pub. Sts. c. 183, § 10. When further notice by publication has been ordered, in . the absence of personal service upon the defendant, an ap- pearance must be entered within ten days after the day speci- fied in the notice for his appearance. The appearance in writing is usually filed by an attorney, and may be in the following form : No. Suffolk, ss. Superior Court, January Sitting, 1894. A. B. Plflf. V. C. D. Dflf. In the above action I appear for the defendant. E. F. In the Municipal Court of the City of Boston, the defend- ant's appearance may be entered at any time before the open- ing of the court on the third day of the first term (Rule III. Mun. Ct.), the third day of the term being Tuesday following the Saturday on which the writ is returnable. A trustee may JOINDER OF ISSUE — REMOVAL OF ACTIONS. 199 appear and answer in this court at any time during the first term. Rule XXX. Appearances in actions before trial justices should he en- tered upon the return day of the writ, and within one hour after the time named in the writ. In district and police courts, an appearance may he entered by the defendant at any time before 10 o'clock A. M. on Tuesday next after the return day. A trustee should file his answer within the same time. Rule II. District and Police Cts. The appearance is in most cases entered by an attorney at law who has been duly admitted to practice at the bar of the courts ; but parties haye a legal right to manage, prosecute, or defend their own suits personally, and by s.uch counsel or attorneys as they may engage, no more than two persons for each party being allowed to manage any cause except with the permission of the court. Pub. Sts. c. 159, § 40. When a party appears for himself in the manner provided by law, he thereby subjects himself to the same rules that are made, or may be provided for attorneys in like cases, so far as the same are applicable. Rule III. Sup. Jud. Ct. ; Rule II. Mun. Ct. Any person 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. Pub. Sts. c. 159, § 41. In the Superior Court the right of an attorney of the court to appear for any party cannot be questioned by the opposite party, unless the exception be taken in writing within ten days after his appearance. Rule XI. In the Municipal Court of the City of Boston the right of any person who may appear as attorney in a suit is, unless the court otherwise order, considered as conclusively admitted unless objected to before any motion made in the case or the reading of the writ on trial. Rule IV. Mun. Ct. 200 MASSACHUSETTS PEACTICE. The rules of both courts provide that when the authority of an attorney at law to appear for any party is demanded, and the attorney declares that he has been duly authorized to appear by an application made directly to him by such party, or by some person whom he believes to have been authorized to employ him, such declaration is deemed and taken to be evidence of authority to appear and prosecute or defend in any action or other proceeding. The rules last cited of both courts also provide that the counsel for the plaintiff in a trustee process shall not appear or act for the trustee ; and in the Superior Court attorneys are prohibited from becom- ing bail or surety in any civil suit or proceeding in that court. Special Appearance. A " special appearance " may be entered when the defend- ant desires to suggest to the court any matter — such as defqpt in the process or service — which he considers ground for dismissing or abating the suit as to him, but which he would be deemed to waive by entering a general appearance. An instance is when, there being two persons of the same name, service is made by mistake upon the wrong one, or when, the name of a corporation having been changed, it is described in the writ by its former name. " A court, in order to render a valid judgment, must have jurisdiction of the subject-matter, and of the persons of the parties. ... In order to acquire jurisdiction of the person, he must be served with process, as required by law. ... If the defendant would object to the irregularity or want of due service in this respect, he may do so by plea in abatement, where it is necessary to plead any matter of fact on which his objection is founded, or by motion to dismiss where the objec- tion is apparent on the face of the proceedings, or the return of the officer ; and in either case before pleading generally to the merits. And to enable him to do this, he may appear JOINDER OF ISSUE — EEMOVAL OF ACTIONS. 201 specially for the purpose of stating such objection, without thereby waiving it. But if he will enter a general appear- ance, or plead to the merits, or lie by after he is aware of the matter of objection to the jurisdiction, he thereby submits himself to the jurisdiction of the court ; and the court then, having jurisdiction of the subject and jurisdiction of the persons of the parties, may proceed." Shaw, C. J., in Brown V. Webber, 6 Gush. 560, 564. See Pub. Sts. c. 167, § 82. If a defendant or trustee enters a special appearance, but does not file any motion or suggestion within the time allowed for entering appearances, the appearance becomes general. ANSWERS. Pleas in Abatement, Demurrers, &c. In the Supreme Judicial and Superior courts, answers and pleas in abatement, demurrers, and motions to dismiss must be filed within the time allowed by law for entering an ap- pearance, unless it is otherwise ordered by the court. Rule V. Sup. Jud. Ct. ; Rule XVI. Sup. Ct. In district and police courts, pleas and answers in abate- ment, demurrers, and motions to dismiss, must be filed, and written notice thereof given to the adverse party or his at- torney, within the time allowed for entering an appearance, unless otherwise ordered. Rule V. Dist. and Police Cts. In the Municipal Court of the City of Boston, any defence which might have been made by plea in abatement, demurrer, or motion to dismiss, may be made by an answer in compli- ance with Pub. St. c. 167, filed on or before Tuesday next after the return of day, unless the court shall otherwise order. Rule X. Mun. Ct. In a case where the Superior Court had entered the order on the docket : " No default till further notice ; " this was held to be an order extending the time during which a motion to dismiss might be filed. Bicker v. Gerrish, 124 Mass. 367. And where a defendant in an appealed case was ordered to 202 MASSACHUSETTS PRACTICE. file an answer within a time specified, and the answer con- tained a demurrer, it was held that, the order being unre- stricted in its terms, was equivalent to giving and did give further time in which to file a demurrer. Lee v. Kane, 6 Gray, 495. Answers to th& Merits. The answer in personal actions must, in the Supreme Judi- cial and Superior courts, be filed within thirty days from the return day of the writ, unless the court shall by special order restrict or extend the time. If it is not so filed, a default may at any time be entered by order of the court, on motion of the plaintiff. Rule VI. Sup. Jud. Ct. ; Rule XVII. Sup. Ct. An answer is also required to all petitions for the enforce- ment of statute liens, as in actions at law (Rule XVIII. Sup. Ct.) ; also to declarations in set-off, within twenty days after the filing of such a declaration, or within such other time as the court may order (Ibid. Rule XIX.) ; and in all appealed cases in which no answer was filed in the lower court, within thirty days after the entry of the appeal, unless the court shall otherwise order ^ (Ibid. Rule XX.) ; in cases removed to Supreme Judicial Court from the Superior Court, within thirty days from the entry of the case in the higher court, unless the time is by special order extended. Rule VI. Sup. Jud. Ct. Notice in writing of the filing of the answer must, on the same day, be sent by mail or otherwise to the adverse party. Rule VII. Sup. Jud. Ct. ; Rule XXI. Sup. Ct. In actions of contract, tort, and replevin, and to petitions to 1 The statutes provide that appealed cases may be tried in the court appealed to upon the issue joined before the justice or court appealed from, or the court may order the defendant to plead in the usual manner, and the case will then be tried upon such issues as may be joined therein. Pub. Sts. c. 155, § 35; St. 1893, c. 396, § 32. Consequently when issue has been joined by an answer filed in the lower tribunal, and no order is passed in the appellate court requiring or permitting the defend- ant to plead anew, the trial must be had on the pleadings as they stood in the tribunal appealed from. Lew v. Lowell, 6 Allen, 25 ; O'Loughlin V. Bird, 128 Mass. 600. JOINDEE OF ISSUE — REMOVAL OF ACTIONS. 203 enforce statute liens in district and police courts, defend- ants are required to file answers on or before Wednesday next after the return day. An answer to a declaration in set-off must be filed within four days after the filing of such declaration, or within such other time as the court may order. St. 1893, c. 896, § 23 ; Rule V. Dist. and Police Cts. Rule X. of the Municipal Court of the City of Boston re- quires an answer to be filed on or before the Wednesday next succeeding the entry day, and further provides that answers to declarations in set-off shall be filed within forty- eight hours after notice of the filing of such declaration. But the court may allow an answer to be filed at any time on motion. In actions before trial justices, the trial may be had, at the election of the defendant, upon pleadings in writing, or the defendant, without filing a written plea, may orally deny the plaintiff's right to maintain his action : in which latter case an entry is 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. Pub. Sts. c. 155, § 27. It seems that, when the defendant is a minor, the answer should be signed by a guardian ad litem (see Pub. Sts. c. 139, § 43 ; Miles v. Boyden, 3 Pick. 213, 219), and that it is at least an " irregularity " if such answer is, signed by one as " attorney for the minors." Bicknell v. 'Bicknell, 111 Mass. 265. When the defendant is a corporation, the answer may be signed in its behalf by some ofiicer or agent thereunto specially authorized. Pub. Sts. c. 167, § 86. See Part II. post. 204 MASSACHUSETTS PRACTICE. DECLARATIONS IN SET-OFF. Where the defendant in an action has a demand against the plaintiff, the former may, in certain cases, file a declara- tion entitled a declaration in set-off, and adapted to the claim, in like manner as though a separate action were brought upon it. Pub. Sts. c. 168, §§ 1, 16. Declarations in set-off must be filed with the answer in the Supreme Judicial and Superior courts. Ibid. § 16. An amendment to the declaration having been allowed by the court, after the coming in of an auditor's report, the de- fendant was allowed to file on the same day a declaration in set-off. Looney v. Looney, 116 Mass. 283. In the Municipal Court of the City of Boston, declarations in set-off may be filed 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 them to be filed at any time. In actions, before any other municipal court, or before a district or police court or trial justice, the defendant must 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. Pub. Sts. c. 168, § 22. In district and police courts the rule provides that declara- tions in set-off shall be filed " within the time allowed for filing answers to declarations, unless the court shall other- wise order." Rule V. In the Superior Court, the Municipal Court of the City of Boston, and in district and police courts, written notice of such filing must be given by mail or otherwise to the adverse party, or his attorney, on the same day, or within such further time as may be allowed. Rule XXI. Sup. Ct. ; Rule X. Mun. Ct. ; Rule V. Dist. and Police Cts. A declaration in set-off having been filed, the subsequent allegations and pleadings respecting the defendant's demand are governed by the same rules as if an action had been JOINDER OF ISSUE — REMOVAL OF ACTIONS. 205 brought upon it ; and tlie plaintiff is 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. Pub. Sts. c. 168, § 17. Kule XIX. of the Superior Court provides that when the defendant shall have filed a declaration in set-off, the plain- tiff shall file an answer thereto within twenty days after the iiling of such declaration, or within such other time as the court may order. In reply to the defendant's declaration in set-off, the plain- tiff may file a set-off to the defendant's demand. Galligan V. Fannan, 9 Allen, 192, or he may demur to the declaration in set-off, for the reason that his own demand is not the sub- ject of set-off. Montague v. Boston & FairJiaven Iron Works, 97 Mass. 502 ; Pub. Sts. c. 168, § 7. If a law for the limitation of actions is alleged as a defence to the defendant's demand as set forth in the declaration in set-off, the limitation will be applied in the same manner as it would have been applied to an action brought on the same demand, had it been commenced at the time when the plain- tiff's action was commenced. Pub. Sts. c. 168, § 18 ; Colt v. Gone, 107 Mass. 285. The fact that a separate suit has already been brought by the defendant will not deprive him of the right to plead his demand in set-off. The statute was never intended to com- pel any one to plead a set-off, and has never been so con- strued ; and a defendant may bring a separate action on his claim, without exercising his privilege of pleading a set-off. Minor v. Walter, 17 Mass. 239. A claim in set-off may be withdrawn before final judg- ment, and a separate action maintained upon it. Gary v. Bancroft, 14 Pick. 315. But if the claim in set-off is estab- lished, and the defendant who files it also prevails in his sep- arate suit brought to enforce the same demand, the adverse party may have an audita querela, or other appropriate rem- 206 MASSACHUSETTS PKACTICE. edy. Sarff&nt v. Southgate, 5 Pick. 312. In an action on a judgment upon a promissory note and account annexed, it was held that the defendant might declare in set-off for items not credited in the plaintiff's account, representing claims which were due before the date of the writ in the original action, and might have been pleaded in set-off in that action. Fiske V. Steele, 152 Mass. 260. After a declaration in set-off has been filed, the plaintiff cannot be allowed to discontinue his action, unless by consent of the defendant. Pub. Sts. c. 168, § 21. Where a count in tort was joined with one in contract, both being for the same cause of action, and the defendant filed a declaration in set-off, it was held that the plaintiff could not discontinue as to the count in contract without the consent of the defendant ; and, if the latter gave his consent, he would be precluded from prosecuting his set- off. Cains v. Tirrell, 112 Mass. 22. When a defendant duly files in the lower court a declara- tion in set-off which is transmitted to the Superior Court with the other papers, on appeal, it is not necessary to file it anew in the Superior Court. Manson v. Arnold, 126 Mass. 399. The Superior Court has jurisdiction of all claims against the Commonwealth, whether at law or in equity, except those mentioned in Pub. Sts. c. 195, § 7,- and all such claims are subject to set-off and recoupment in like manner as if the Commonwealth were a priva.te person, and may be enforced in accordance with the provisions of Pub. Sts. c. 195 ; St. 1887, c. 246.1 * Claims in set-off may be allowed in all actions founded upon de- mands which could themselves be the subject of set-oflE according to law, but in no others. Pub. Sts. e. 168, § 7. No demand can be made the subject of a set-off, unless it is founded upon a judgment or a contract; but the contract may be either express or implied, and either with or without a seal. Pub. Sts. c. 168, § 2. More- over, the demand to be set off must be for the price of real or personal estate sold, or for money paid, or money had and received, or for services done; and it must be for a sum that is lii^uidated, or that can be ascer- tained by calculation. Ibid. § 3. A claim for unliquidated damages cannot be set off. Corey v. Janes, 15 Gray, 543; Cardell v. Bridge, 9 JOINDER OF ISS17E — EEMOVAL OF ACTIONS. 207 REMOVAL OF ACTIONS. To the Superior Court. When it appears by the pleadings or otherwise, in an action before a trial justice, that the title to real estate is concerned Allen, 355; Montague v. Boston §• Fairhaven Iron Works, 97 Mass. 502. Such demand must have existed at the time of the commencement of the suit, and belonged, at that time, to the defendant in his own right, and not to him as executor, administrator, or trustee, Pub. Sts. c. 168, §§ 4, 15; and any demand assigned to the defendant, with notice to the plain- tifi of the assignment before the beginning of the action, may be set off in like manner as if it had been originally payable to the defendant. Ibid. § 5. If the demand on which the action is brought has been assigned and the defendant had notice of the assignment, he cannot set off any demand against the original ci-editor acquired after such notice. Ibid. § 10; Jenkins v. Brewster, 14 Mass. 29. See Lewis v. Brooks, 9 Met. 367. If the demand set off is founded on a bond or other contract with a penalty, only the amount equitably due is set off. Pub. Sts. c. 168, § 6. And where the defendant held a bond signed by the plaintiff and others, both jointly and severally, it was held that the amount due on the bond might be set off as a mutual demand. Donelson v. Coleraine, 4 Met. 480. In actions against executors, administrators, trustees, and others, sued in their representative capacity, the defendants may set ofE demands be- longing 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 themselves. Pub. Sts. o. 168, § 14. In actions by executors and administrators, demands against their testa- tors or intestates which belonged to the defendant at the time of their death, may be set off in the same manner as if the action had been brought by the deceased. Ibid. § 12. When there are several plaintiffs, the demand set off must be due from all of them jointly ; and if there are several defendants, the demand set off must be due to all of them jointly. An exception to this rule occurs when the person with whom a contract is made has a dormant partner; for when a suit is brought on such a contract either 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. Ibid. §§ 8, 9 ; Walker v. Leigh- ton, 11 Mass. 140; Lord v. Baldwin, 6 Pick. 352; Barnstable Savings Bank V. Snow, 128 Mass. 512. A claim due from the plaintiffs and another person jointly is not a subject of setoff. Bridgham v. 7'ileston, 5 Allen, 208 MASSACHUSETTS PEACTICE. or brought in question, the fact, if it does not appear by the pleadings, must be stated on the record, and the case will, at -the request of either party, be removed to the Superior Court, to be tr^ed and determined as if it had been originally com- menced, or, if it is a writ of scire facias, in like manner as if the original judgment had been obtained, in that court. Pub. Sts. c. 155, § 24. The word " action," as used above, refers to the actions named in Gen. Sts. c. 120 (Pub. Sts. c. 155), and does not include petitions to enforce liens brought under Pub. Sts. c. 191. Dion v. Powers, 128 Mass. 192. Since the St. 1893, c. 396, § 21, took effect, the foregoing provisions have had no application to district and polide courts. Requests for the removal of the action often arise in actions for trespass, or in summary process for recovery of land. Pub. Sts. c. 175, § 6 ;■ St. 1888, c. 325. Where in an action for trespass the defendant claimed possession under a written lease, it was held that the title to the real estate was not thereby brought in question, and a motion to remove was rightly refused. Martin, v. Tolin, 123 Mass. 85. And if the title to real estate is admitted in the lower court, it is not " in question " under the statute, and the case cannot legally be transferred. Shurtleff v. Eutchins, 10 Met. 248. In actions brought before a trial justice the party requiring the case to be removed must, as a necessary preliminary thereto, recognize to the other party in a reasonable sum with sufficient surety or sureties, with condition to enter the action in the Superior Court for the county ; and in case of failure so 371. The rule that, where there are several defendants, the demand must be due to all of them, applies to the case where there are two defendants who stand in the relation to each other of principal and surety; and also where the plaintiff brings aa action in trust, or for the use or benefit of another. Warren v. Wells, 1 Met. 80. 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. Holbrook v. Lackey, 13 Met. 132. See also Lesure v. Norris, 11 Cush. 328. JOINDER 01 ISSUE — REMOVAL OF ACTIONS. 209 to recognize it is the duty of the justice to hear and determine the case as if there had been no request to remove it. Pub. Sts. c. 155, § 25. Leary v. Reagan, 115 Mass. 558. If a case is erroneously removed, it should not be dis- missed in the Superior Court, but remanded to the trial justice to be proceeded with according to law. Dion v. Powers, 128 Mass. 192. If the proceeding is summary process for the recovery of land, and the defendant requests a removal, he must file a bond to the adverse party, with surety or sureties, and con- ditioned to enter the action and to pay to the plaintiff, if the final judgment is in his favor, all rent then due, all interven- ing rent, and all damage and loss which he may sustain by reason of the withliolding 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. Pub. Sts. c. 175, § 6 ; St. 1888, c. 325. For condition required of defendant, when the action is brought to recover premises after a foreclosure of a mortgage, see Pub. Sts. c. 175, § 7 ; St. 1888, c. 325, § 2. If the case is transferred at the request of the defendant upoii a plea or suggestion by him that brings in question the title to the freehold, and it afterwards appears that the plea or suggestion was frivolous and intended for delay, the defend- ant may be required to pay double the yearly value of the premises from the time of the notice to quit. Pub. Sts. c. 175, § 8 ; St. 1888, c. 324, § 3. If the defendant has given a bond to dissolve an attachment made in the case, he is not required to recognize for the allowance of the removal. Pub. Sts. c. 155, §'33. Where the recognizance was entered into by the plaintiff to " prosecute his appeal," it was held that the word " appeal " was not technical, but sufficiently expressed the plaintiff's elec- tion to have the case removed to the Superior Court. Law- rence V. Souther, 8 Met. 166. 14 210 MASSACHUSETTS PRACTICE. The party recognizing is required to produce at the Supe- rior Court a copy of the record and of all the papers filed in the case, except that when depositions or other written evidence or documents are so filed, the originals must be produced instead of copies. If he fails to do so, or to enter the action at the return day next after the removal is requested (St. 1885, c. 384, § 5), he may be defaulted or non-suited, as the case may be, on complaint of the adverse party, and such judgment thereupon rendered as law and justice may require. Pub. Sts. c. 155, §§ 26, 34. From one County to another. Whenever it appears that an acti6n, suit, or proceeding commenced in the Supreme Judicial or Superior Court is brought in a wrong county, the court, on motion of either party, may order the same, with all papers relating thereto, to be transferred to the proper county, upon such terms to the defendant as the court may deem reasonable ; and it shall thereupon be entered and prosecuted in the same court for that county as if originally returnable therein, and all prior proceedings otherwise regularly taken shall thereafter be valid. Pub. Sts. c. 161, § 12. A transitory action brought in the Superior Court for Hampden County was transferred to Suffolk County upon motion of the plaintiff, and an appearance for the defendant was entered in Suffolk County. Subsequently on motion of the defendant, consented to by the plaintiff, the case was trans- ferred back to Hampden County. No appearance was entered for the defejidant in Hampden County except specially, for the purpose of moving to dismiss the action. Upon exceptions taken it was held that the Superior Court had acquired full jurisdiction after the case was first transferred, and had authority as a court of general jurisdiction to try the case in any county in the State, unless objection was seasonably made ; and that while the statute provided only for the re- JOINDEE OF ISSUE — REMOVAL OF ACTIONS. 211 moval of actions brought in the wrong county, the power of the court was not exhausted by a single removal if more than one should b^ found necessary in order to secure to the defendant the benefit intended. Hazard v. Wason, 152 Mass. 268. By St. 1887, c. 347, it is provided that whenever in any case it appears that by reason of local prejudice or other cause the parties or either of them cannot have an impartial trial in the county where the proceeding was begun, the court may, on application, of either party, order the case to be removed for trial to such other county as shall be deemed most fair and equitable for the parties thereto. Upon the entering of the order the clerk will forthwith transmit the writ, petition, or original prayer and all other papers in the case, together with a certified copy of the order. It is the duty of the clei'k who receives the papers to enter the same forthwith in his docket, and the case will then proceed in all respects as if it had been originally entered there, and all prior proceedings otherwise regularly taken will thereafter be valid. Actions brought by the city of Boston or its collector, in the county of Suffolk, may be removed to Essex, Middlesex, or Norfolk, in manner following : The defendant or tenant may, within thirty days after the day for appearance, file a motion in writing for the removal of the action, " and the court shall thereupon order it to be removed to the proper court in such one of the other of said counties as the attorney of the City of Boston elects." It is then the duty of the city's attorney to enter the case in the court designated by him, at the then next sitting, and file certified copies of the writ or other process, and of the order of removal. Pub. Sts. c. 161, §§ 9, 10 ; St. 1885, c. 384. In trustee process returnable to the Supreme Judicial Court or the Superior Court, when it appears that the trustee was made a party for the purpose of giving the court jurisdiction of the cause in the trustee's county, and where neither the 212 MASSACHUSETTS PRACTICE. plaintiff nor the principal defendant resides or has a usual place of business, the court, on motion of the defendant at any time before trial, may order the case, with all papers relating thereto, to be transferred to a county in which some one of the principal parties resides, upon such terms as the court may deem reasonable. St. 1893, c. 285. From Superior Court to Supreme Judicial Court. It is provided by the Pub. Sts. c. 152, § 7, that " actions, except of tort, and petitions for partition, in which the dam- ages demanded, or property claimed, or estate in controversy 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 the trial is commenced, be carried, by consent of parties, to the Supreme Judicial Court ; the plaintiff shall enter the same at the next [term] ^ of that court, and the cause shall proceed as if the action or petition was originally brought therein." ^ And § 8 of the same chapter provides further that "if the defendant in such action," or the respondent in a petition for partition, or any person in behalf of either of them [at the first term at which such defendant or respondent is held by law to appear] ,3 makes oath or affirmation before the clerk or a justice of the peace, that he verily believes he has a substantial defence, that the amount in controversy exceeds the amount or value mentioned in the preceding section, that he intends to bring the cause to trial, and requests that the same may be removed to the Supreme Judicial Court, it shall be immediately trans- ferred, with the papers therein, to the clerk of that court, and by him forthwith entered at the charge of the party removing 1 Sitting. St. 1885, c. 384, § 4. * As to costs in actions removed to the Supreme Judicial Court by con- sent, see post. Chapter VII. » "Within thirty days after the day for appearance." St. 1885, c. 384, § 14. JOINDER OF ISSUE — REMOVAL OF ACTIONS. 213 the same, upon the payment of the entry fee, and the cause shall proceed as if originally brought in that court." The intention of the statute was, in a case of the magnitude designated, to give a defendant the right to claim the ori- ginal jurisdiction of the Supreme Judicial Court ; and when there are several defendants, any one of them may exercise this right, even though others refuse to join in the application. Whiton V. Brodhead, 3 Gush. 356. By the Pub. Sts. c. 150, § 6, jurisdiction is expressly given to the Supreme Judicial Court of " all actions and proceedings at law " made returnable to the Superior Court and removed by consent or upon affidavit as above stated. The law of removal applies only to cases in which the Supreme Judicial Court and the Superior Court have concur- rent jurisdiction, and not to cases of which the Superior Court has exclusive jurisdiction. Humfhrey v. Berkshire Woollen Co., 10 Allen, 420 ; Sullivan v. Fall River, 125 Mass. 568. And therefore a suit brought in the Superior Court on a count in contract joined with a count in tort, cannot now be removed, because an action of tort cannot be brought in or removed to the Supreme Judicial Court. Garter v. Wabash, <&c. B. B. Co., 137 Mass. 187. By the St. 1892, c. 169, § 1, the Supreme Judicial Court is shorn of its original jurisdiction of petitions for partition, writs of entry for the foreclosure of mortgages, and other real actions, and the second section of that statute provides that, " the right to remove actions and petitions for partition from the Superior Court to the Supreme Judicial Court, now exist- ing by virtue of " Pub. Sts. o. 152, §§ 7, 8, and c. 178, i « is hereby taken away, and the Superior Court shall retain juris- diction of all such cases." ^ A case cannot be removed from the Superior Court by con- > Of the Partition of Lands. ' This statute is entitled " An Act relative to the Jurisdiction of the Supreme Judicial and Superior Courts in Real Actions." 214 MASSACHUSETTS PRACTICE. sent of parties, under § 7, after it has been once tried in that court. Smith v. Castles, 1 Gray, 108. See also Galpin v. Critchlow, 112 Mass. 339. When the removal is by consent, it is the duty of the plain- tiff to enter the case in the Supreme Judicial Court, and pay the entry fee ; if upon affidavit, it is the duty of the defendant to do so, and in cases of removal upon affidavit, it seems that if the Supreme Judicial Court is in session, the case may be re- moved to and entered in that court at once. If the defendant fails or neglects to enter the case, it seems that the plaintiff may do so, and if he prevails, tax the expenses of entry in his costs against the defendant. But if neither party enters the case at the sitting to which it was removed, it cannot be done subsequently upon motion. Knapp v. Lambert, 3 Gray, 377 ; Bice v. NicTcerson, 4 Allen, 66. The payment of the clerk's charges for entry is a condition precedent to the removal of the action, and in case of non- payment, the preliminary proceedings are of no avail, and the case remains within the jurisdiction of the Superior Court. Rice V. NicTcerson, ubi supra. A defendant who has. procured the removal of an action from the Superior Court to the Supreme Judicial Court, is not thereby precluded from seeking a removal to the Circuit Court of the United States. American Finance Co. v. Bost- wick, 151 Mass. 19. As to removal of suits from State courts to the Circuit Court of the United States, see U. S. Rev. Sts. § 639 ; U. S. Sts. of March 3, 1875, March 3, 1887, August 13, 1888; and Amer- ican Finance Co. v. Bostwick, uM supra. INTERLOCUTORY PROCEEDINGS AND TRIAL. 215 CHAPTER VI. rNTEELOCUTOEY PROCEEDINGS AND TBIAL. CLAIM FOR JURY TRIAL. It is provided by Pub. Sts. c. 167, § 69 (see post, Part II.), that a separate list of cases to be tried by a jury shall be kept ill the Supreme Judicial and Superior courts, and that no civil action shall be entered thereon, except in those cases for vrhich a different provision is expressly made, unless some party, before the parties are at issue or within such time there- after as the court may by general or special order direct, files a notice that he desires a trial by jury. Other civil actions vrill be heard and determined by the court, and judgment entered, as in case of verdict by a jury. A rule of the Superior Court requires that the notice that a party desires a trial by jui-y shall be filed not later than ten days after the filing of the ansvrer or plea. Rule XXII. Sup. Ct. And whenever an answer, plea, or declaration in set-off is filed, notice in writing of the fact must be sent on the same day, by mail or otherwise, to the adverse party. Rule XXI. Sup. Ct. DEMURRERS, AND ANSWERS OR PLEAS IN ABATEMENT. [See Pnb. Sts. c. 167, §§ 11-14, 35, 36, post, Part U.] Although arguments upon 'demurrer are often heard after the case is called for trial, it is the better practice, especially when the questions raised called for much consideration, to dispose of them on some motion day before trial. The same remarks apply to answers and pleas in abatement in which the facts are not disputed, and there remains merely a question of law for the court. 216 MASSACHUSETTS PEACTICE. In the Municipal Court of the City of Boston, any defence which might have been made by plea in abatement, demurrer, or motion to dismiss, may be made by answer filed on or before Tuesday next after the return day, unless the court otherwise order. Rule X. See Eule V. Dist. and Police Cts. And when an answer in abatement is overruled on demurrer, or when an amendment is allowed and made by the plaintiff in consequence of such answer in abatement, the defendant must, within two days, answer to the merits. Rule X. Mun. Ct. In the same court, and generally in the inferior courts, all matters of abatement and demurrer are heard, regularly, at the trial of the cause in which they arise. MOTIONS IN GENERAL. The Rules of the Superior Court expressly require that motions for leave to amend (Rule XII.), for a new trial (Rule XL VI.), or to recommit an award (Rule XXXIII,), shall be in writing ; and in the Municipal Court of the City of Boston the rules provide that all motions shall be put in writing and filed by the clerk before they are heard by the court, except motions to charge or discharge a trustee, or for a bill of particulars. Rule VII. Mun. Ct. And it seems advisable that all motions of which the adverse party is entitled to notice should be reduced to writing and regularly filed in the case. All notices required by, or given in pursuance of, the rules of the Superior Court must be in writing, and may be proved by an affidavit of the party or his attorney to a copy thereof, setting forth that the original was delivered personally to the adverse party or his attorney, or deposited in the post-office directed to him and postage prepaid. Rule XXXI. Sup. Ct. This is held to be a reasonable rule, and to make the deposit- ing of the notice within the time limited equally effectual with a personal service thereof within the same time. Blair v. Laflin, 127 Mass. 518, 521. INTEELOCUTOEY PEOCEEDINGS AND TEIAL. 217 It may be stated as the general rule that notice of all mo- tions should be given to the other side, and the notice will be insisted on in all cases where the opposite side has been guilty of no default or laches which is made the basis of the motion. See Noyes v. Sherburne, 117 Mass. 279, 280. But no notice is necessary of a motion for default or nonsuit when one side is ready for trial in court and the other is absent, since the parties are held affected with notice that the case is in order. Neither is notice necessary of a motion to charge a trustee upon his default or, possibly, upon his answer acknowl- edging funds. But if the trustee denies in his answer that he has funds, notice of a motion to charge him is necessary. In the Superior Court motions may be heard by the judge in open court or in chambers, as he shall appoint. Rule LIV. Sup. Ct. In Suffolk County motions are regularly heard in the equity session of the Superior Court upon motion days appointed from time to time by the presiding justice. Notice of days so appointed is published in the newspapers, and a " motion book " is kept in the clerk's office, upon which the names of cases in which motions are to be made on the next succeeding motion day may be entered. In the counties other than Suffolk there is no fixed practice as to the hearing of motions, but motions in cases not on the trial list, as well as civil cases to be heard by the court and issues of law, will be heard at such times during the term as may be deemed convenient and proper by the presiding jus- tice. Rule LVII. Sup. Ct. In the Municipal Court of the City of Boston motions are regularly heard on the second day of each term, i. e. on Mon ■ days, at half-past nine o'clock A. M., provided a list thereof shall have been handed to the clerk and notice given to the adverse party on or before the first day of the term. But motions may be heard at other times, in open court or in chambers, as the judge shall appoint. Rule VI. Mun. Ct. The courts will not hear a motion grounded on facts, unless 218 MASSACHUSETTS PRACTICE. the facts are verified by affidavit, or are apparent from 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 he applied to all facts relied on in op- posing any motion. Rule XII. Sup. Jud. Ct. ; Rule XXXIII. Sup. Ct.; Rule VII. Mun. Ct., Boston. The object of this rule is that nothing less than evidence supported by oath shall be admitted. But, on the hearing of a motion for a new- trial, it was held to be clearly within the discretion of the presiding judge to admit oral testimony. Spaulding v. Knight, 118 Mass. 528. For Continuance. Motions for continuance, grounded on the want of material testimony, must be supported by affidavit stating the name of the witness, if known, whose testimony is wanted, the particu- lar testimony which he is expected to give, with the grounds of such expectation, and the endeavors and means that have been used to procure his attendance or deposition. Rule XIII. Sup. Ct. In the inferior courts, the affiant must also state what reason there is to believe that the attendance of the witness can be procured, and at what time ; so that the court may judge whether the diligence used and prospect of attend- ance will justify a continuance. The adverse party will not be permitted to contradict the statement of what the absent witness is expected to testify, hut may disprove any of the other facts stated in such affidavit. Rule XII. Mun. Ct. ; Rule XII. Dist. and Police Cts. . No action will be continued on motion, if the adverse party will admit that the absent witness would, if present, testify as stated in the affidavit, and will agree that the same shall be received and considered as evidence on the trial as if the wit- ness were present and had so testified. Such agreement must be made in writing at the foot of the affidavit, and signed by the party or his counsel or attorney. And the same rule applies, mutatis mutandis, when the motion is grounded on INTERLOCUTORY PROCEEDINGS AND TRIAL. 219 the want of any material document, paper, or other evidence that might be used on the trial. But this rule is not to be construed to prevent the court, in any case, from granting a continuance in its discretion for good cause shown. Rule XIII. Sup. Jud. Ct. ; Rule XXXIV. Sup. Ct. ; Rule XII. Mun. Ct., Boston ; Rule XII. Dist. and Police Cts. The admission that a party, if present as a witness, would testify in a certain manner, does not concede the truth of the matter to which he would so testify. Commonwealth v. Mc- Cann, 97 Mass. 580. No party will be entitled to a continuance on the ground of the absence of a material witness whom it is in the power of such party to summon, unless such witness has been regularly summoned and paid or tendered his fees for travel and one day's attendance. Rule XXXV. Sup. Ct. ; Rule XIV. Mun. Ct., Boston. In the Municipal Court of the City of Boston all actions not defaulted or disposed of are continued as of course, unless the court otherwise order. Rule III. Mun. Ct. If an action is continued at a sitting when it might other- wise have been tried, the party moving for the continuance must pay the adverse parties costs, incurred at that sitting in procuring the attendance of witnesses, unless the continuance is ordered on account of some unfair advantage, fault, or mis- conduct on his part, or unless the party making the motion shall have given notice thereof, with a statement of the grounds of the motion, to the adverse party or his attorney, in such season, before the sitting of the court, as might have prevented the attendance of witnesses, or unless the ground of the motion was not seasonably known to the party making it. The costs thus paid will not be included in the bill of costs of the party receiving them if he prevail in the suit. The court may, in its discretion, impose additional terms for a continuance when justice requires it, and the rules will not be construed to prevent one who has had notice of a 220 MASSACHUSETTS PRACTICE. motion for continuance from procuring the attendance of Jiis witnesses, if he shall think fit to oppose the motion for continuance. And in such cases, if the motion is granted, the costs for such witnesses will be allowed in the bill of costs for the party opposing the motion if he finally prevail in the suit, but not otherwise. Rules XIV., XV. Sup. Jud. Ct. ; Rules XXXVI., XXXVII. Sup. Ct. ; Rule XIII. Mun. Ct., Boston ; Rule XIII. Dist. and Police Cts. Whether a motion for continuance shall be granted or re- fused rests, ordinarily, in the discretion of the presiding jus- tice. Pickering v. Beynolds, 111 Mass. 83 ; Kittredge v. Bussell, 114 Mass. 67 ; Soper v. Manning, 158 Mass. 381. His deci- sion is not subject to exception ; but a refusal to allow a con- tinuance may be ground for review if the party seeking the postponement can show that, by an unreasonable exercise of the judicial discretion, he was compelled to go to trial unpre- pared. Beynard v. Brecknell, 4 Pick. 302 ; Weeks v. Adam- son, 106 Mass. 514. The effect of a continuance is to strike the case from the trial list for the sitting ; and it must be put upon the list anew for any succeeding sitting at which a trial is desired. See Trial List. In the Municipal Court of the City of Boston, when an action has remained on the docket three successive terms without proceedings had by either party, the clerk, unless the court otherwise order, is required to note therein a continu- ance under rule, and the action will be continued from term to term without further entry therefor, and no costs will be al- lowed either party while it is so continued. Rule XXXII. Mun. Ct. In the same court, actions may be continued to a future term without being entered on the dockets for the intermediate terms .^ Rule XV. Mun. Ct. 1 It is within the power of the Supreme Judicial and Superior courts to continue cases nisi, that is, to the next sitting, unless before that sitting some order shall be made as of the previous sitting. Pub. Sts. c. 153, §§ 18, 19. If an order made at any sitting of either court to con- INTEELOCUTOEY PEOCEEDINGS AND TEIAL. 221 To Dismiss. Motions to dismiss are required to be made in the Superior Court, and filed in tlie Supreme Judicial Court within the time allowed for entering appearances, unless further time be allowed by the court. Rule V. Sup. Jud. Ct. ; Rule XVI. Sup. Ct. Decisions of a justice of either court on motions to dismiss for defect of form in process are final on the question raised. Pub. Sts. c. 153, § 8. In the Municipal Court of the City of Boston, any defence which might have been made by motion to dismiss may be made by answer filed on or before Tuesday next after the return day, unless the court otherwise order. Rule X. Mun. Ct. For Default or Nonsuit. If a defendant, being duly served with process, fails to appear, his default will be recorded, the charge in the declara- tion will be taken to be true, and judgment rendered accord- ingly. Pub. Sts. c. 167, § 45 (See Part II. ;post) ; St. 1885, c. 384, §§ 7-11. In the counties other than Suffolk, defaults by reason of failure to appear will not be entered, without a motion there- for, until the end of the sitting at which the writ was made returnable ; and if the plaintiff desires to have such a default entered before the end of the sitting, he must move therefor. In Suffolk, however, by a general order of the court, the clerk enters such defaults at the end of the ten days allowed for entering appearances, in every case where an appearance has not been duly entered. The same practice obtains in the inferior courts, where defaults will be recorded, as of course, tinue a case nisi should by mistake not be recorded, it seems that it would be within the power of the court at a subsequent sitting to order the re- cord to be amended so as to correspond with the truth. But Pub. Sts. c. 171, § 7, authorizing " the court," upon overruling a motion for a new trial, to enter judgment as of a former sitting, do not authorize a judge, in vacation, to enter judgment when the case has not been continued nisi. Greenwood v. Bradford, 128 Mass. 296, 297. 222 MASSACHUSETTS PRACTICE. on the third day of the term, in cases in ■which no appearance has been entered, unless otherwise ordered by the court. Rule III. Mun. Ct., Boston ; Rule II. Dist. and Police Cts. It seems that, when an appearance has been entered for the defendant in an action, and afterwards withdrawn, a motion to default is necessary. A plaintiff has the right to become nonsuit at any time before trial, but after the trial has begun he cannot become nonsuit except by the leave and in the discretion of the court. Shaw V. Boland, 15 Gray, 571. " Although a judge may direct, or, to speak more precisely, advise, a nonsuit when the plaintiff's evidence is in, if, in his opinion, the jury, on any just view of the evidence, could not find a verdict for the plaintiff, yet it is purely a matter of dis- cretion ; he is never bound to do so ; and in many cases it is most advisable to submit the evidence to the jury, with suit- able instructions in regard to the law applicable to such case. A refusal to direct a nonsuit, therefore, is no ground of excep- tion." Morgan v. Ide, 8 Gush. 420 ; Wentworth v. Leonard, 4 Cush. 414. A defendant has no right to require of the judge trying the case an opinion upon the weight and sufficiency of the evi- dence produced to support the plaintiff's case, or whether the plaintiff has made out a prima facie case, unless he is pre- pared to leave the case to the jury upon the plaintiff's evi- dence, under the direction of the court. And where the defendant, at the close of the plaintiff's evidence, asked the court to rule that the plaintiff had not made out a prima facie case, it was held, treating it as a motion for a nonsuit, that the defendant waived it by subsequently introducing testimony in his own behalf. McQregory v. Frescott, 5 Gush. 67. It is doubtful whether the Superior Court can allow a plaintiff to become nonsuit after a question of law has been reserved on report or otherwise for the determination of the Supreme Judicial Court and before that question has been INTEELOCUTOEY PEOOEEDINGS AND TKIAL. 223 disposed of, but the latter court may allow a nonsuit before tlie case is opened before it for argument. Truro v. AtJcins, 122 Mass. 418; Lowell v. Merrimack M'fg Co., 11 Gray, 382. When a case is called for trial, and one party appears in court prepared to proceed, and the other is absent or unpre- pared, the party appearing may move that the opposite party be " called," whereupon the crier calls the party to come into court and prosecute or defend, as the case may be, his action against the adverse party, on pain of having his nonsuit or default recorded. The party not appearing, he is nonsuited or defaulted accordingly. But it seems that if a plaintiff actually appears in court when called, an order to nonsuit him is " irregular," unless he consents. See Silshee v. Salem, 103 Mass. 144, 146 ; Mitchell v. Mw England Marine Ins. Co., 6 Pick. 116. In all cases where the defendant has failed to file an answer within the time fixed by law or the rules of court, a default may at any time be entered by order of the court, on the motion of the plaintiff. Rule VI. Sup. Jud. Ct. ; Rule XVII. Sup. Ct. ; Rule X. Mun. Ct?, Boston ; Rule V. Dist. and Police Cts. If a party neglects or refuses to expunge, amend, or answer interrogatories, according to the requirements of Pub. Sts. c. 167, §§ 49-60 (see post, Part II.), the court may enter a nonsuit or default, as the case may require, and proceed thereon according to law. It is within the discretion of the Superior Court, under a notice duly published, that " cases which have been upon the docket for one year without any action in the same, will be dismissed, unless good cause, is shown to the contrary," to default the defendant in such a case and to refuse to remove the default on his motion. Willey v. Durgin, 118 Mass. 64. To remove Default or Nonsuit. A motion to remove a default, if made after the day on which the default is entered, should be in writing, and notice 224 MASSACHUSETTS PRACTICE. thereof must be given to the adverse party. The motion must be supported by an affidavit of merits in the defence, with a statement of its nature, and proof to the satisfaction of the court that a defence is in good faith intended. Rule XL VIII. Sup. Ot. Such a motion is addressed to the discretion of the court. Rogers v. Ladd, 117 Mass. 334. Motions to remove default should be filed before judgment is entered on the default, since a judgment once entered can only be disturbed by appeal, writ of error, petition to vacate judgment, or review, and the courts may not disturb a judg- ment once entered, or grant a review, for the same. reasons which might have been sufficient to remove a default. In the Municipal Court of the City of Boston, if an action is nonsuited or defaulted by reason of the absence of the plaintiff or defendant when the case comes on for trial, the action will not be restored to the docket except by written consent filed, or on a motion grounded upon an affidavit stating why the party or his attorney was not present when the case was disposed of ; and in the case of default, upon an affidavit of merits in the defence, and of its nature, and that it was in good faith intended. Rule IX. Mun. Ct For Judgment. On the first Monday of every month, judgment may be entered in all actions ripe for judgment, under a general order of the court; and the court, or any justice thereof, may, at other times, order judgment to be entered in any such action. Rule IX. Sup. Jud. Ct. ; Rule XXVII. Sup. Ct. In all cases in which a party is otherwise entitled to judg- ment, but the general order has not become applicable to the case, judgment can be obtained only by a special application addressed to the court. At the end of each sitting of the court, judgment is entered, as of course, in all cases which are ripe for judgment. INTEKLOCUTOEY PEOCEEDINGS AND TKIAL. 225 For New Trial. Motions for a new trial, founded upon the opinions or deci- sions of tlie judge given in the course of the trial, or because the verdict is supposed to be against the evidence or the weight of the evidence, must be filed within three days after verdict. The motion must specify the grounds of complaint, and a copy thereof must be delivered to the adverse counsel on the day it is filed. Upon special motion, and for good cause shown, the time for filing the motion may be extended by the court. Rule XXVIII. Sup. Jud. Ct.; Rule XLVI. Sup. Ct. The Superior Court has not the power to grant a motion for a new trial if the party making the motion has failed to comply with the rule of that court requiring him to cause a copy of the motion to be delivered to the adverse counsel on the day the same is filed. Cram v. Moore, 158 Mass. 276. If the party making the motion relies upon facts to support it, such facts must be verified by oath or affirmation, or must be apparent upon the record and papers on file in the case, or be agreed in writing signed by the parties or their attorneys. And the same rule is applied as to facts relied on in opposing such a motion. See Rule XII. Sup. Jud. Ct. ; Rule XXXIII. Sup. Ct. It is further provided by the rules of the Supreme Judicial Court, that " 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 specify the documents on which he intends to rely in support of his motion ; other- wise the motion shall be stricken off, and judgment may be rendered on the verdict, on the motion of the counsel of the party in whose favor the verdict shall be returned." Rule XXVIII. Sup. Jud. Ct. 15 226 MASSACHUSETTS PRACTICE. A motion for a new trial must be made in the court which has at the time jurisdietion of the case; and when such a motion was made in the Supreme Judicial Court in a criminal case, after the exceptions taken at the trial below had been overruled and the rescript sent down, it was held, that as no error had been suggested in the decision upon the exceptions, the motion must be addressed to the Superior Court. Com- monwealth V. Scott^ 123 Mass. 418. The courts 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 be granted. Pub. Sts. c. 153, § 6. And the court has power to set aside not only the whole verdict, but any specific finding upon any separate question submitted to the jury. Monies v. Lynn, 119 Mass. 273, 275. " 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. . . . Where it appears to the court that the party has been deprived, without his fault, of a right or remedy which the law gives him, it would generally be held a legal reason for granting a new trial." Borrowscale v. Bosworth, 98 Mass. 34, 36. A judge is not bound, as matter of law, to set aside a ver- dict because in his opinion it is against the weight of the evidence. It is said that, were he so bound, the result would be that facts would be tried by the court instead of by the jury. See opinion of Colburn, J., in Beeve v. DenTiett, 137 Mass. 315, 318, and of Shaw, C. J., in Cunningham v. Magown,, 18 Pick. 13. " A motion for a new trial, upon the ground that the find- ing was against the weight of the evidence, must be of very little utility when addressed to a judge who has recently care- fully weighed and considered the evidence, and who has an- nounced the result. We are therefore of opinion, that, in cases tried by the court without a jury, a party cannot, as matter of right, be heard upon a motion for a new trial, on INTBELOCUTOEY PEOCEEDINGS AND TRIAL. 227 the ground that the finding is against the evidence and the weight of the evidence." Per Morton, 0. J., in O'Grady v. Sufple, 148 Mass. 522. The original writ in an action appealed by the defendant to the Superior Court, was transmitted to that court having upon the back of it a memorandum made by the clerk of the inferior court, of the amount of the judgment below. Neither of the counsel in the action was aware that such memo- randum was upon the writ, and the writ went to the jury in the Superior Court without the attention of any one hav- ing been called to it. The jury returned a verdict for the plaintiff. It was held that the defendant was not entitled as of right to a new trial. Clapp v. Olapp, 137 Mass. 183. Where a plaintiff objected to the admission of incompetent evidence, and the objection was sustained by the court but was subsequently waived, it was held that the fact that the witness could not be found when the plaintiff withdrew his objection would not justify the court in granting the defendant a new trial ; since the plaintiff, on a new trial, might still have a right to object to the admission of the testimony. Chase's Patent Elevator Go. v. Boston Tow-Boat Co., 155 Mass. 211, distinguishing Foster v. Thompson, 5 Gray, 45-3, in which case the excluded testimony was competent. On a motion for a new trial, a party cannot avail himself of a point of law which was open to him at the trial, but was not then raised. Holdsworth v. Tucker, 147 Mass. 672. Whether a witness is to be believed, so far as this is a ques- tion for the court, is a -question of the weight and not of the sufficiency of evidence. So in a suit on a contract, it not being denied that the contract was proved if the plaintiff had testified truly, it was held that this question was settled conclusively by the overruling of a motion for a new trial in the Superior Court. Snow v. Alley, 151 Mass. 14. Although Rule XXXIII. of the Superior Court provides that the court will not hear any motion grounded on facts. 228 MASSACHUSETTS PRACTICE. unless the facts are verified by oath or affirmation or apparent on the record, or are agreed in writing, it is within the dis- cretion of a single justice of that court, on a motion for a new trial on the ground of newly discovered evidence, to admit oral testimony. Spaulding v. Knight, 118 Mass. 528. For Leave to Amend. [See Pub. Sts. c. 167, § 42 ; post, Part H.] All motions for leave to amend must be in writing and notice must be given to the opposite party .^ Such motions must contain or be accompanied by the proposed amendment. No motion to amend in matters of substance will be allowed after the entry of an action, unless by consent, in any case where the adverse party appears, except upon payment to such adverse party of the amount of the term fee ($5.00) pro- vided by law ; and upon striking out unnecessary counts or statements, or filing amendments after demurrer, the same terms will be imposed ; and no such motion to amend will be allowed, unless by consent, in any action, after the same is placed on the trial list, except upon payment to the adverse party of a double term fee. But this rule will not prevent the imposition, in any case, of such further terms as the cir- cumstances of the case and justice to the parties may require.^ When either party amends, the other party, if by reason thereof his case requires it, is entitled also to amend without terms. Rule IV. Sup. Jud. Ct. ; Rule XII. Sup. Ct. The petitioner for the revision of a betterment assessment, before trial, obtained leave to amend his petition, the question of terms being reserved. Upon the verdict in the case, the 1 It is sometimes prudent to give notice of a proposed amendment to subsequent attaching creditors of the defendant, purchasers from him, or his bail. See Pub. Sts. c. 167, § 85, Part II. post. " This rule does not apply to suits for divorce, and it is within the dis- cretion of the presiding judge to allow a libel to be amended without terms. Harrington v. Harrington, 107 Mass. 329. INTEELOOUTOEY PEOCEEDINGS AND TEIAL. 229 petitioner became entitled to costs. On the last day of the term, the court passed the general order for the entry of judg- ment in all cases ripe for judgment, and judgment was there- upon entered for the petitioner for costs. It was held that a writ of error would not lie in favor of the respondent to re- verse the judgment on the ground that the terms had not been settled, since the general order had the same effect as a special order in the case would have had, and disposed of the question of terms. The court said : " If the respondent claimed that the entry of judgment was a misprision of the clerk, its proper remedy was an application to the Superior Court to correct its records. If it has lost any rights, it is by its own laches in not diligently prosecuting its claim for terms for the amendment." Somerville v. Fiske, 137 Mass. 91. In the inferior courts the matter of terms upon the allow- ance of amendments is wholly within the discretion of the court. Rule XVI. Mun. Ct. ; Rule XIV. Dist. and Police Cts. After a general verdict upon a declaration containing sev- eral counts, the plaintiff may, at any time during the sitting, on motion, have leave to amend the verdict and enter it on any count on which the evidence would have entitled him to recover ; and he may have leave to strike out of the declara- tion any defective counts. Rule XLV. Sup. Ct. AUDITOR.^ The practice of sending causes to an auditor arose from the ancient action of account, now abolished in this State, in which a judgment was entered that the defendant do account, guod computet, and thereupon auditors were appointed to take the 1 The term " auditor " designates an officer, either in law or in equity, assigned to state the items of debt and credit between the parties and exhibit the balance. Fisk v. Oray, 100 Mass. 191, 193. An auditor is authorized to hear and determine all questions incidental to, and neces- sarily involved in, a statement of the account, and which are essential to a correct determination of the subject-matter submitted to him. Corhett V. Greenlaw, 117 Mass. 167, and cases cited. 230 MASSACHUSETTS PRACTICE. account. Locke v. Befmett^ 7 Cush. 445. See Fadr v. Man- hattan Ins. Co., 112 Mass. 320, 328. When a cause is at issue, whether the form of the action be tort, contract, or replevin, the court may, in its discretion, appoint one or more auditors to hear the parties, examine their vouchers and evidence, state accounts, and report upon such matters therein as may be ordered by the court, and the auditor's report will be prima facie evidence upon such matters only as are expressly embraced in the order. But justices of district, police, or municipal courts have no power to send any case to an auditor without the written assent of both parties. Pub. Sts. c. 159, § 51. Under the authority of the statute last cited an auditpr may be appointed in any civil action at law. Solmes v. Turner's Falls Co., 150 Mass. 535.1 References to an auditor are most commonly made when complicated accounts are to be settled. The court will gener- ally allow the parties to select the auditor, only exercising its own right of selection in case the parties disagree. ^ Whether the circumstances of a particular case call for the appointment of an auditor is to be determined by the court in its discretion, and from its decision there is no appeal. The court may appoint an auditor without any motion therefor, and against the wishes of the parties. Clark v. Fletcher, 1 Allen, 53; Pierce v. Thompson, 6 Pick. 193. The " rule " to an auditor is made by the clerk as follows : -r- COMMONWEALTH OP MASSACHUSETTS. Suffolk, ss. Superior Court, April Sitting, 1893. A. B. V. C. D, And now it is ordered by the court that J. E. H. be, and he hereby is, appointed auditor in the above-mentioned action, to hear the parties and examine their vouchers and evidence, and to 1 By St. 1889, c. 311, the Probate Courts are authorized to appoint auditors in certain cases. INTEELOOUTOEY PEOCEEDINGS AND TEIAL. 231 state the accounts, and make report thereof to the court, [or to do such other things as the court may see fit to embrace in the rule]. J. A. W., Clerk. By the St. 1888, c. 257, § 5, the fee for a rule to an auditor is fixed at $1.00. Whenever auditors are appointed in any action in the Su- preme Judicial Court, the rule must be taken out and pro- ceeded upon within such time, during the regular sitting, as that the report shall be made at the next succeeding sitting of the court. If no report is made at the beginning of such next sitting, the rule may be discharged in the discretion of the court and the case stand for trial., Rule XVI. Sup. Jud. Ct. Actions in the Superior Court which have been sent to an auditor cannot be placed upon the trial list until the re- port has been filed, Rule XXV. Sup. Ct. ; and in the Munici- pal Court of the City of Boston no action referred to an auditor or referee can be put upon the trial list until a report is filed or the reference discharged. Rule XXV. Mun. Ct. An auditor's report is not governed by all the rules regu- lating the admission of ordinary evidence offered by either party. It is the report of an ofiicer appointed by the court under authority of the statute. It is made by the statute prima facie evidence, and prima facie only, upon such mat- ters 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. Fair v. Manhattan Ins. Go., 112 Mass. 320, 329. The report being prima facie evidence for the party in whose favor it is, the verdict should be for that party unless the report is met or controlled by the other party, Phillips 232 MASSACHUSETTS PKACTICE. V. Cornell, 133 Mass. 546, and see Lonergan v. Peck, 136 Mass. 361 ; 1 but if on the whole evidence the preponderance is for the other party, the verdict should be for him. Bradford v. Stevens, 10 Gray, 379.- Findings upon matters not strictly embraced in the order cannot be considered as evidence by the jury, Flint v. Hub- hard, 1 Allen, 252, and the court should strike out such find- ings at the trial or instruct the jury to disregard them. Jones V. Stevens, 5 Met. 373 ; Snowling v. Plummer Granite .Co., 108 Mass. 100. But, on the other hand, the report is prima facie evidence, not merely of the result of the accounts, but of the facts or inferences stated in the report, as derived from the evidence before the auditor and involved in the determination of the issues referred to him, including, when necessary to the determination of those issues, his finding upon the general question of the defendant's liability. Holmes v. Hunt, 122 Mass. 505, and cases cited. If the auditor reports general findings in favor of the plain- tiff, but also reports the particular facts and evidence upon which he bases his findings, the defendant has a right to go to the jury upon the report, and it is error to take the case from the jury and direct a verdict for the plaintiff. Feaslee v. Moss, 143 Mass. 275. If subordinate facts and findings are reported, a jury may draw inferences therefrom different from those drawn by the auditor, and render a verdict different from the result arrived at by the auditor. Morrill v. Keyes, 14 Allen, 222 ; Roper v. Lamb, 9 Allen, 502. But when a case is submitted to the full court by the parties upon an auditor's report alone, the court will not reverse his findings unless the facts reported 1 The plaintiff may, in the first instance, rest his case upon the audi- tor's report, and, if an attempt is made to control or impeach it by other evidence offered by the defendant, may, in the discretion of the court, be permitted to put in evidence in reply in support of his own case, though not strictly in rebuttal. Brewer v. Housalonk R. R. Co., 104 Mass. 593. INTEELOOUTOEY PEOCEBDINGS AND TEIAL. 233 by him require it as matter of law. Peru Steel & Iron Co. v. Whi:ppl6 File & Steel M'f'g Co., 109 Mass. 464. In Washington County Mutual Ins. Co. v. Dawes, 6 Gray, 376, it was held that the auditor's report is competent evi- dence of the facts stated in it, although such facts are ob- jected to before the auditor as inadmissible under the answer, if the answer is amended before trial so as to meet the objec- tion. It would seem that the same principle holds where the facts are inadmissible under the original declaration. The auditor's report may be impeached by evidence before the jury without filing specific exceptions thereto, and wit- nesses examined before the auditor may be re-examined be- fore the jury, since the report does not supersede or exclude any other competent evidence. Allen v. Hawks, 11 Pick. 359 ; Somers v. Wright, 114 Mass. 171. The objection that a case is not a proper one to be referred to an auditor cannot be taken for the first time when the report is offered in evidence, both parties having proceeded before the auditor without objection. Kimball v. Amesbury, 2 Gray, 517. If there is more than one auditor all must meet and hear the cause, but a report by a majority will be valid. A minor- ity report is not admissible in evidence. Pub. Sts. c. 159, § 53 ; Lincoln v. Taunton Copper Co., 9 Allen, 53. The testimony of an auditor, to whom a case has been re- ferred, is inadmissible to control, or in any way affect, his re- port. Monk V. Beat, 2 Allen, 685 ; Packard v. Reynolds, 100 Mass. 153. The court may order an auditor's report to be read although neither party desires it. Clark v. Fletcher, 1 Allen, 53. The report of an auditor appointed in a court below may be used as evidence on appeal in the Superior Court. See Web- ber V. Orne, 15 Gray, 351. The court may for cause discharge auditors and appoint others, and may recommit the report to the same or another 234 MASSACHUSETTS PRACTICE. auditor for reyision or further examination. Pub. Sts. c. 159, § 54. " 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 qualifi- cations of witnesses testifying before him, should be raised by motion to recommit the report for amendment before trial," Fai/r v. Manhattan Ins. Co., 112 Mass. 320, 331 ; and so for any material ambiguity or incompleteness in the report ; but if such objection is not taken until the report is offered in e\'i- dence, no exception lies to the admission of the whole report accompanied with proper instructions as to its use and effect as evidence. Ibid. And see NewelW. Chesley-, 112 Mass. 522 ; Corhett v. Greenlaw, 117 Mass. 167. In the case last cited occurs a statement by Endicott, J., of some of the questions upon which an auditor may properly pass as incidental to the issues referred to him. A motion to recommit the report of an auditor is addressed to the discretion of the court, Butterworth. v. Western Assur- ance Co., 132 Mass. 489; Keniall v. Weaver,! A.W.evL, 277; Packard v. Reynolds, 100 Mass. 153. The court must award reasonable compensation to audi- tors, to be paid by the county, if the auditor is appointed by the Supreme Judicial Court or the Superior Court. If the auditor is appointed by any other court, the compensation awarded may be paid by either party and taxed in his bill of costs if he prevails ; but the plaintiff will be responsible for such payment, 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. Pub. Sts. c. 159, § 55. In the Municipal Court of the City of Boston, auditors and referees, after making their report or award, must forthwith submit the same to the court, who will fix their compensation, the time of payment, and of the filing of the report or award; and if the same is not paid for and filed, the action may be dismissed or defaulted with costs, or such judgment entered INTEELOOUTORT PROCEEDINGS AND TRIAL. 235 as justice may require. And no costs are allowed while actions are under advisement or reference, or committed to auditors. Rule XXV. Mun. Ct. EEPERBNCE. Agreements for a reference must be in writing, signed by both parties or their attorneys, must contain the names of the referees, and be filed in the clerk's ofiice. Thereupon the clerk will issue a rule as follows : — Commonwealth of Massachusetts. Suffolk, ss. Superior Court, April Sitting, 1893. RULE TO EBFEEBE. A. B. V. C. D. And now the parties appear and agree to refer this action to the determination of M. N., S. T., and W. Y., their report to be made as soon as may be ; judgment thereon to be final and execution to issue accordingly ; and if either party neglects to appear on due notice, then the referees are to proceed ex parte. J. A. W., Clerk. In the Superior Court, when the agreement to refer is made and filed in the clerk's office, with the names of the referees, the clerk may issue a rule. Rule LIII. Sup. Ct. Formerly the fees of referees were chargeable to the parties and might be recovered in an action at law (^Russell v. Page, 147 Mass. 282) ; but under the provisions of St. 1883, c. 216, amended by St. 1886, c. 51, the Supreme Judicial Court and the Supe- rior Court may award reasonable compensation to assessors, referees, masters in chancery, and special masters, for duties performed under the direction of said courts, to be paid by the counties in which they are appointed and not to be taxed in the bill of costs of either party. Costs run in favor of the prevailing party pending a refer- ence under rule, or while a case remains before an auditor.^ ' When a case is referred by submission of the parties,, in pais, and there is no provision in the submission concerning costs and expenses. 236 MASSACHUSETTS PKACTICE. When a case has been referred to arbitration by a rule of court, neither party can rescind the rule without an order of the court. The case remains upon the docket, cannot be finally disposed of without a judgment of the court, and is meanwhile subject to the control and order of the court, upon the motion of either party and upon reasonable notice to the opposing counsel. Willey v. Durgin, 118 Ma^. 64, 70. The reference of a case by agreement of parties under the rule of court does not discharge the sureties on a bond given to dissolve an attachment. Seavey v. Beckler, 13^ Mass. 203, and cases cited. The submission of a case to arbitration by rule of court waives all defects in the pleadings. Ames v. Stevens, 120 Mass. 218. And the judgment of arbitrators cannot be impeached for error in the application of the rules of law, unless there is something in the terms of the submission or in the award which expressly or by implication subjects it to the revision of the court. Gardner v. Boston, 120 Mass. 266. But it may be shown, in an action upon an award, that the arbitrators refused to consider or pass upon a claim submitted to them by the defendant, Gaylord v. Norton, 130 Mass. 74 ; or that there was no evidence to support the award. See Boston Belting Co. v. Boston, 149 Mass. 44. All objections to the acceptance of an award, and all motions to have the same recommitted, are required to be reduced to writing and the ground of the objection or motion to be distinctly stated ; and, jf grounded on facts, such facts must be verified by aifidavit, 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 attor- neys. Eule XXXII. Sup. Ct. the arbitrators may make such award respecting these as they judge reasonable, including a compensation for their own services, but the court may reduce the sum charged for compensation, if it appears unreasonable. Pub. Sts. c. 188, § 11. INTERLOCUTORY PROCEEDINGS AND TRIAL. 237 The fact that a party to a cause which had been submitted to a referee by agreement of the parties and under a rule of court, suffered the hearing to proceed without objection after he knew that the referee had conversed with the adverse party and investigated some of the facts ex parte, will warrant a finding that he waived the irregularity, and an objection to the award, made on this ground, is too late. Duckworth v. Biggies, 139 Mass. 51. Where the referee made an award absolute in its terms, but stating somewhat in detail, for the satisfaction of the parties, the testimony and the grounds of the decision, it was held that the award was final upon the questions submitted, and was not subject to revision by the court. Rogers v. Mayer, 151 Mass. 279. Where, a case having been sent to an auditor, the parties thereto and a third person appeared before the auditor and filed with him an agreement to appoint him referee and to submit to him all matters in dispute between the three, grow- ing out of a certain matter referred to in the declaration, such agreement being headed with the name of the case and the court in which it was pending, and the submission being stated to be " in the above entitled case," the referee to report to the court, judgment to be entered upon the award, and no rule of reference was issued by the court ; it was held that this was not an agreement for an arbitration in pais, and did not work a discontinuance of the action, and, further, that, as the defendant was not indebted to the plaintiff and the third per- son jointly, no rule of reference could have been issued in the action, and that the award could not be accepted. McCarthy V. Swan, 145 Mass. 471. If an award is set aside by the Superior Court in an action referred to arbitrators under rule of court, and an appeal is taken, the case must nevertheless proceed to final judgment in the Superior Court before the appeal will be entertained in the Supreme Judicial Court. Eogan v. Ward, 117 Mass. 67. 238 MASSACHUSETTS PKACTIOE. This case is distinguished from one arising on an award made upon a submission before a justice of the peace (see Pub. Sts. c. 188), or a verdict of a sheriff's jury, in which cases nothing but the award or the verdict is ever in the Superior Court.^ CHANGE OP ATTOBNET. If either party to a cause changes his attorney pending the suit, the name of the new attorney must be substituted on the docket for that of the former attorney, and notice thereof given to the adverse party ; and, until such notice, all notices given to or by the attorney first appointed will be considered in all respects as notices to or from his client, except in cases in which, by law, the notice is required to be given to the party personally. Rule III. Sup. Jud. Ct. ; Rule X. Sup. Ct. ; Rule II. Mun. Ct., Boston ; Rule III. Dist. and Police Cts. SUGGESTION OP INSOLVENCY AND ITS EFFECT. When proceedings in insolvency have been instituted by or against a party to a suit, and are pending simultaneously with those in the suit, a suggestion of insolvency may be filed. In practice, this is most commonly done by the insolvent debtor or his assignee, and the form of the suggestion may be as follows : — 1 An award made in an arbitration inpais under Pub. Sts. c. 188, may, under the St. 1885, c. 384, §§ 2, 3, be returned into court at anytime ■within the period fixed by the submission, whether the court is holding a regular sitting or not ; and i£ the award is enclosed by the arbitrators in an envelope and sealed and delivered to the clerk of the court addressed to the court, it is duly transmitted and returned into court within the meaning of Pub. Sts. c. 188, §§ 8, 9. James v. Southern Lumber Co., 153 Mass. 361. It was held that an award of arbitrators enclosed in a sealed envelope and sent by mail addressed to " Joseph A. Willard, Esq., Clerk Superior Court, 3 Court House, Boston," was transmitted to the court within the meaning of Pub. Sts. c. 188, § 8. It is not required, in such a case, that the envelope should have on it any writing declaring the nature of the contents of the envelope, although it is a common and con- venient practice to make such an indorsement. Morrell v. Old Colony R. R., 158 Mass. 69. INTEBLOCUTOEY PEOCEEDINGS AND TEIAL. 239 SuPEEiOR Court. Suffolk, ss. January Sitting, March 1, 1893. A. B. V. C. D. And now comes the defendant in the above entitled cause, and suggests to this honorable court, that on the 1st day of January, A. D. 1893, a warrant in insolvency was issued against his estate from the Insolvency Court for the County of Suffolk, as will fully appear from an attested copy of said warrant -hereto annexed, and marked " A," and that proceedings in his said insolvency are still pending. [And said defendant moves that the above entitled cause may be continued to await said insolvency proceedings.] C. D., by his attorney, A. M. H. If a motion for continuance is filed as above, it must be called up like any other motion, after due notice in writing to the plaintiff. , Unless this is done, or the assignee intervenes, judgment may regularly be entered in the case, under the general order, notwithstanding the filing of the suggestion and motion, if the plaintiff becomes entitled to it otherwise. See Dunldr v. Baker, 104 Mass. 211 ; Holland v. Martin, 123 Mass. 278. The object of the motion to continue is to enable the de- fendant to plead his discharge in insolvency when obtained, and also to enable his assignee to come in and defend the suit. See Page v. Cole, 123 Mass. 93, 96. But the question whether such a continuance shall be granted is entirely within the discretion of the court in which the motion is made.i ^ A court has jurisdiction to try a case notwithstanding the defendant institutes insolvency proceedings after the commencement of the suit, which proceedings are pending at the time of trial, and although the plaintiff in the case has offered the claim in suit for proof against the estate. In such a case it was said : " The suit at law may still continue to complete the remedy. If the defendant fails to procure his discharge, or, when obtained, if it is liable to be impeached or set aside for fraud or other causes, the creditor may, in such cases, continue to prosecute his action to final judgment." Barker v. Haskell, 7 Cush. 218 ; Morse v. Reed, 13 Met. 62. The St. 1879, c. 245, § 4 (Pub. Sts. o. 157, §§ 81, 95), makes the certificate of discharge conclusive evidence of the fact, and 240 - MASSACHUSETTS PEACTICE. Sullings v. Ginn, 131 Mass. 479 ; Reed v. Paul, Ibid. 129. If a judge is satisfied that a refusal to grant a continuance has worked injustice to the defendant, it is within his discretion to grant him a review, and the exercise of his discretion is not subject to exceptions. Todd v. Barton, 117 Mass. 291. In cases in which the plaintiff has acquired no liens as against the debtor's assignee, a continuance will generally be granted upon motion, as a matter of course, when insolvency has been suggested ; ^ but in cases where the plaintiff has a valid attachment of the debtor's goods, made more than four months before the first publication of notice of the proceed- ings, a continuance may not be necessary, since in such cases a special judgment may be entered and an execution issue thereon, directed against the attached property, but not against the person of the defendant. See Bates v. Tappan, 99 Mass. 376 ; O'Neil v. Harrington, 129 Mass. 591 ; Pub. Sts. c. 157, § 46 ; Dissolution op Attachments, ante. When a defendant makes his suggestion of insolvency after his default and before judgment against him, the case may be rightly continued to await his discharge, and, his discharge being granted, judgment may be rendered in his favor. Na- tional Bank of Clinton v. Taylor^ 120 Mass. 124; Page v. Clark, 123 Mass. 93. It seems that a plaintiff's liability for costs in an action regularity of the discharge. See Kempton v. Saunders, 130 Mass. 236. But a plaintifi is not estopped to show that the debt on which his action is founded was created by the fraud of the defendant notwithstanding the latter sets up his discharge. See Pub. Sts. c. 1.57, § 84; Kellogg -v. Kimball, 138 Mass. 441. ^ Proceedings to enforce a mechanic's lien under Pub. Sts. c. 191, will not be continued to await insolvency proceedings against a debtor who, before his insolvency, has legally conveyed away all his interest in the land. Glendon Company v. Townsend, 120 Mass. 346. ^ This case and several others cited above were decided under the U. S. Bankrupt Act of 1867 and the acts amendatory thereof, now repealed; but it is apprehended that the principles of the cases are applicable to cases arising under the insolvency laws of Massachusetts. INTEELOCUTOKY PROCEEDINGS AND TRIAL. 241 pending at the time of his insolvency is not a provable debt, and that judgment therefor may be rendered against him before the question of his discharge is determined. See Pelham v. Aldrich, 8 Gray, 615 ; Dows v. Griswold, 122 Mass. 440. "When the plaintiff in a suit has become bankrupt, and his assignee desires to come in and prosecute the suit, the latter should file a suggestion of bankruptcy, together with a motion that he be allowed so to come in. If the assignee has knowledge of the pendency of an action brought by the insolvent upon a contract executed before the insolvency, and does not interfere with the action, his assent to the bringing of the action may be inferred ; and the action may be maintained. Herring v. Downing, 146 Mass. 10, and cases cited. If the bankruptcy of one of several defendants has been suggested, it is within the discretion of the court to allow the, trial to proceed against the others. Kennedy v. Doyle, 10 Allen, 161. If, after verdict for the plaintiff the defendant pleads his discharge in bankruptcy, to which the plaintiff replies that the debt sued for was created by the fraud of the defendant, and is not barred by the discharge, the issue thus presented may be tried by a jury, and the court is not required first to set aside the verdict already rendered on the merits. Kellogg v. Kimball, 138 Mass. 441. SUGGESTION OP DEATH, ETC. The suggestion of the death of a party ^ in the cases provided for by Pub. Sts. c. 165, §§ 5, 12, or that a party is an infant, and so not competent to sue or be sued, or that a female party 1 If the executor or administrator of the party deceased does not volun- tarily appear, the surviving party may take out a citation from the court or trial justice before whom the case is pending, requiring the executor or administrator to appear and take upon himself the prosecution or defence of the action. Pub. Sts. c. 165, § 7 e< seq. 16 242 MASSACHUSETTS PRACTICE. has married since the action was brought and does not bear at the time of trial the surname given in the writ, should be made in writing and filed in the case. Osborn v. Osborn, 114 Mass. 515. After the death of a defendant has been suggested, no amendment altering the character of the action can be allowed imtil the appearance of a representative. Smith v. Sherman, 4 Cusli. 408. TENDER — MONEY PAID INTO COUET. The effect of a tender made before suit brought will be to prevent the plaintiff from talking costs if he does not, at the trial of the cause, recover more than the sum tendered. The sum due on a contract for the payment of money may be paid or tendered even after the money has become due and payable, and such payment or tender may be pleaded in an action subsequently 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. Pub. Sts. c. 168, § 23. A tender of the whole sum due on the contract, with the legal costs of suit incurred up to that time, may be made to the plaintiff or his attorney, after an action is brought, if it is made four days at least before the return day of the original writ ; and if not accepted, the defendant may avail himself of the tender in defence in like manner as if it had been made before the com- mencement of the action, bringing into court the amount ten- dered for debt or damages and for costs. Ibid. §§ 24, 25. Sundays are not to be counted, but if the writ has already been sent to an officer, costs must be included in the amount ten- dered although no service has yet been made. Bobbins v. Holman, 11 Gush. 26, 29 ; Emerson v. White, 10 Gray, 351. See Bouv4 v. Cottle, 143 Mass. 310. If the tender is accepted, the plaintiff or his attorney must, on the defendant's request, sign a certificate or notice of the fact to the officer who has the writ and deliver it to the INTEELOCUTOEY PEOCEEDINGS AND TEIAL. 243 defendant, and if any further costs are incurred for a service made by the officer after the tender and before he receives notice thereof, the defendant must pay the same to the officer or the tender will be invalid. Pub. Sts. c. 168, § 26. When wages for personal labor or services are attached by trustee process, the defendant may make tender, at any time before the entry of the writ, of the whole amount due and re- coverable in the action, together with the fees of the officer for serving the writ ; and such tender having been made, no costs, other than the officer's fees, can be recovered by the plaintiff. Pub. Sts. c. 183, § 31. Where a trespass on lands has been casual and involuntary, the trespasser may tender sufficient amends before an action is brought, and, if afterwards sued, 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 on trial such allegations appear true, and if the damages assessed do not exceed the amount of the tender, the defendant will recover his costs. Pub. Sts. c. 179, § 10. When suit is brought for such a trespass before a tender is made, the defendant may bring into court sufficient amends and costs up to that time, and make the proper allegations and disclaimer, with like effect as if he had made a tender. Ibid. §11. Before the entry of an action brought to recover for damage caused by defects in public ways or bridges, the defendant may tender to the plaintiff the amount which the latter would be entitled to recover, with all legal costs ; and if the plaintiff does not accept the sum so offered and fails to recover a greater sum on the trial, the defendant is entitled to recover his costs. Pub. Sts. c. 52, § 22. Such a tender is a conclusive admission of the truth of every fact necessary to sustain the plaintiff's action. Bacon v. Charlton, 7 Cush. 581. A person or corporation against whom damages are claimed -44 MASSACHUSETTS PEACTICB. for taking or injuring land by authority of law, or on whose property a lien is claimed, may make a tender or offer of judg- ment in any proceedings relative thereto in like manner as in matters of contract, but where an assessment of damages is required before applying for a jury, no tender or offer of judg- ment can be made until after such assessment, nor of less amount. Pub. Sts. c. 168, § 27. Tender made before issue joined should be set up in the de- fendant's answer, if he desires to avail himself of it. Although a defendant pleads orally in an action before a police court, if he relies upon a tender he must pay the money into court before trial or other disposition of the case there. He cannot wait until he files his answer in the Superior Court after an appeal. " It is one of the incidents of a tender that the defendant is bound to hold the money in constant readiness from the time of the tender until it is paid into court. It is a continuing offer, to be at all times open for the plaintiff's ac- ceptance." BrickeU v. Wallace, 98 Mass. 528. So, a tender to a mortgagee who has replevied goods to which he was en- titled, if effective at all, must be followed by bringing the money into court and pleading the tender. Moberts v. White, 146 Mass. 256. The practice of bringing money into court upon motion was introduced in order to avoid the hazard and diificulty of a plea of tender under the system of special pleading. It can be done at any time by leave of the court, even after judgment and a new trial granted. 1 Tidd, Practice, 542. A plea of tender with, a profert in curia admits the defend- ant's liability for the amount tendered, and the plaintiff has a right to take out the sum,^ whatever may be the result of the suit. Currier v. Jordan, 117 Mass. 260 ; Hubbard v. Ktwus, 7 Cush. 556 ; Baeort v. Charlton, Ibid. 581. 1 But when the plaintiff in a bill in equity to redeem mortgaged premises pays money into court, the defendant, if he prevails, has no right to take out the money. See Putnam v. Putnam, 13 Pick. 129. INTEELOCUTOKY PROCEEDINGS AND TRIAL. 245 In all cases in wliich money is brought into court under the common rule, the plaintiff will be entitled to receive the same together with his costs up to that time, to be legally taxed ; and, if the plaintiff shall in a i-easonable time tax his costs, the amount thereof must be paid into court in addition to the money brought in, and will be for the use of the plaintiff and will be paid to him on request. Thereupon, the amount so brought in is to be considered as stricken out of the plaintiff's demand to the same effect as if paid. If the plaintiff consents to accept the amount thus paid, in satisfaction, with costs, all further proceedings in the case will cease. If the plaintiff sig- nifies his election not to receive the same in satisfaction but to proceed in his suit, and recovers any sum beyond the amount paid in, he will be entitled to a judgment therefor, with costs to be taxed from the time the money was brought in. If the plaintiff fails to prove.more to be due him than the sum brought in, the defendant will be entitled to a verdict and judgment thereon, with costs to be taxed from the time the money is paid into court. Rule X. Sup. Jud. Ct. ; Rule XXVIII. Sup. Ct. ; Rule XXIII. Mun. Ct., Boston ; Pub. Sts. c. 198, § 9. In the Superior Court, if the sum brought in does not ex- ceed twenty dollars, the costs to be paid will be such as would be recoverable on a judgment for the sum so brought in ; and if the plaintiff in such case recovers a sum which, with the 9um so paid in, will entitle him to full costs, he will recover full costs, deducting the costs so paid. But if the sum so recovered does not, in addition to the sum so paid, amount to more than twenty dollars, the plaintiff's costs cannot, in the whole, exceed the amount of costs to which he would be en- titled on a judgment for the recovery of the sums so recov- ered and paid in. Rule XXIX. Sup. Ct. See Eeed v. Wil- son, 11 Gray, 486. Where, by mistake, the payment was too small by forty-one cents, the plaintiff was held entitled to judgment for the bal- ance and costs. Boyden v. Moore, 5 Mass. 365. 246 MASSACHUSETTS PRACTICE. If a defendant who admits that money in his hands was due at the beginning of the action, files a petition under the St. 1886, c. 281, for the summoning in of a claimant, but does not pay the money into court, he is liable for interest thereon from the date of the writ to final judgment. Converse V. Ware Savings Bank, 152 Mass. 407. In the Supreme Judicial and Superior courts and in the Municipal Court of the City of Boston, money paid into court is in the custody of the clerk, who must pay it to the party entitled to it, on request. If the money is not taken out of court by the plaintiff, it will be kept or deposited by the clerk at the risk of the person entitled thereto. In the Supreme Judicial and Superior courts the clerk is entitled to a fee of one dollar, and to a commission of one per cent on sums not exceeding five hundred dollars, and one half of one per cent on any amount beyond that sum, as a compensation for receiving and paying out the money ; such fees and com- missions to be paid by the party paying tlie money into court. Rule XI. Sup. Jud. Ct. ; Rule XXX. Superior Ct. In the Municipal Court of the City of Boston, if the money is not taken out of court by the plaintiff, the clerk, at ad- journment, is required to seal up and keep the same, or to deposit it in some savings or other bank, to the credit of the plaintiff ; and if the same is lost without negligence on the clerk's part he is not accountable. Rule XXIV. Mun. Ct. OFFER OP JUDGMENT. [See Pub. Sts. c. 167, §§ 65, 66, Part 11. post, and cases cited.] The following is the form of an offer of judgment : — Superior Court, April Sitting, 1893. Suffolk, ss. No. 5000. A. B. V. C. D. And now comes the defendant in the above entitled cause and ofiEers and consents to be defaulted, and that judgment may be entered against him in the sum of five hundred dollars as damages. By his attorney, H. B. F. INTERLOCUTORY PROCEEDINGS AND TRIAL. 247 The effect of an offer of judgment is to stop the plaintiff's costs at the date when the offer is filed and to give the de- fendant his costs from such date, unless the plaintiff shall recover a greater sum than that offered by the defendant, not including interest on the sum recovered in damages from the date of his offer. Pub. Sts. c. 167, § 66. If the plaintiff elects to accept the offer of judgment, he should put his acceptance in writing and file the same within ten days after notice of the offer, unless longer time be granted for good cause shown, and judgment will be rendered accordingly, with costs to the date of the notice. Pub. Sts. c. 167, § 65. In the Municipal Court of the City of Boston, if the plain- tiff, within the ten days, puts the case upon the trial list, he is deemed to have refused the . offer. When the defendant in any case before a district, police, or municipal court, or trial justice, files an offer of judgment under Pub. Sts. c. 167, § 65, and judgment is rendered thereon, such judgment is final. Pub. Sts. c. 155, § 36 ; St. 1893, c. 396, § 20. INTERROGATORIES. [See Pub. Sts. c. 167, §§ 49-60, Part II. post, for provisions concerning interro- gatories to parties.] In the Municipal Court of the City of Boston, interrogato- ries may be filed at any time after the commencement of the action, and answers thereto must be filed within four days after notice of the filing of the same ; to the party interro- gated, or his attorney ; unless, for good cause shown, either before or after the lapse of the four days, further time is allowed by the court. Rule XVII. Mun. Ct. To Su]pposed Trustees. The plaintiff may from time to time examine the supposed trustee upon written interrogatories filed in the clerk's ofiBce, or with the court or justice, to which sworn answers must be 248 MASSACHUSETTS PRACTICE. filed within seven days after notice to the trustee or to his attorney of the filing of the interrogatories, unless the court otherwise orders. Pub. Sts. c. 183, § 12. The privilege of interrogating is for the purpose of eliciting facts that will tend to charge the trustee, and all attempts by this means to cross-examine him or to impeach his credit are impertinent and improper. The plaintiff will be allowed ■to file additional interrogatories when such a course is deemed necessary to put the court in possession of all the facts. Grossman v. CrossTifan, 21 Pick. 21 ; Nutter v. Framingham & Lowell B. R. Co., 131 Mass. 231. If answers are not filed according to the requirements of the statutes the court or justice is authorized to pass " such order as the case may require." Pub. Sts. c. 183, § 12. If the trustee fails or neglects to answer a pertinent and mate- rial question, or makes an imperfect answer, he may, on motion of the plaintiff, be ordered to answer, or to answer fully ; and if he does not comply with the order, or if he fails to answer the interrogatories in the first instance, he will be defaulted and adjudged a trustee. Pub. Sts. c. 183, § 19; Rule XXX. Mun. Ct., Boston; Rule VII. Dist. and Police Cts. See Piper v. Willard, 6 Pick. 461 ; Warner v. Perkins, 8 Cush. 518.^ The court may, in its discretion, at any stage of the pro- ceedings before final judgment, allow the trustee to file a new and additional answer without a new interrogatory, even after the plaintiff has filed allegations of facts not stated or denied by the trustee ; and such new answer will be as con- clusive in favor of the trustee as any previous answer made by liim. Winsted Bank v. Adams, 97 Mass. 110. A plaintiff in trustee process cannot maintain a bill for discovery in aid of such process, in order to obtain evidence i In scire facias against a trustee after judgment, his answers are to be taken as true, in the same manner as answers in the original suit, and he may answer all matters necessary or proper for his defence. Varian v. New England Mutual Accident Association, 156 Mass. 1. INTERLOCUTORY PROCEEDINGS AND TRIAL. 249 to contradict the answers made by the trustee, even although the trustee is an administrator, and his answers are in respect to matters of which he has no personal knowledge. Emery v. Bidwdl, 140 Mass. 271. To Witnesses out of the State. [See Pub. Sts. c. 169, §§ 40-43.] Interrogatories, as the foundation of a commission to take the testimony of a witness out of the State, must be filed and notice thereof given to the adverse party or his attorney, at least seven days (in the inferior courts, four days), before taking out the commission, and one day additional must be allowed for every ten miles that the opposite party or his attorney lives from the clerk's office. Rule XIX. Sup. Jud. Ct.; Rule XXXVIII. Sup. Ct.; Rule XX. Mun. Ct., Boston; Rule XV. Dist. and Police Cts. DEPOSITIONS. [See Pub. Sta. c. 169, §§ 23-44.] A deposition will be opened by the clerk of the court when presented for that purpose either in term time or vacation, and the clerk will certify the day upon, which it is opened, and may thereupon deliver it to the party for whose use it is taken. No costs can be taxed for a deposition that has not been opened before the taxation is made. In the Supreme Judicial and Superior courts the party for whose use a deposi- tion has been taken will not be allowed afterwards to use it, unless it is filed within fourteen days, or in the inferior courts within forty-eight hours, after it is opened. But if, by accident or unforeseen cause, the party is prevented from filing his deposition within the time specified by rule, the court may allow it to be filed afterwards, upon motion and cause shown. When a deposition has been filed, but is not read at the trial by the party taking it, the other party may use it, if he sees fit, on paying the cost of taking the same. In all cases the court may order a deposition in the possession 250 MASSACHUSETTS PRACTICE. of any party to be opened and filed, on the application of any of the parties against whom the same is taken, at such time as the court shall direct, and if it be not opened and filed in pursuance of the order of the court, it cannot be used on the trial. See Rule XVIII. Sup. Jud. Ct. ; Rule XLI Sup. Ct. ; Rules XVIII. and XXII. Mun. Ct. ; Rule XVII. Dist. and Police Cts. It is competent for the presiding justice to find that a failure to file depositions within the time required by Rule XLI. of the Superior Court was caused by accident ; and it is within his discretion to permit such depositions to be filed. Corcoran v. Batchelder, 147 Mass. 541. Depositions may be taken in term time within the Com- monwealth, in the town where the court is holden, and at an hour when the court is not actually in session ; but the court may for good cause shown specially order a deposition to be taken at any other time or place. Rule XXI. Sup. Jud. Ct. ; Rule XL. Sup. Ct. But in the Municipal Court of the City of Boston, depositions upon interrogatories may be taken at any time ; other depositions cannot be taken during the sitting of the court, nor out of Boston during term time, unless by leave of court. Rule XIX. Mun. Ct. Under Rule XL. of the Superior Court, a deposition is not admissible which is taken within tlie Commonwealth, and out of the town in which the court is, held, in term time, without a special order of the court. Fuller v. Damon, 135 Mass. 586. If depositions are taken at different places at such times that the adverse party or his attorney cannot attend at both, the court may, when such depositions are offered in evidence, exclude the depositions of those witnesses whom the adverse party has been deprived of reasonable opportunity of cross- examining, although proper notice of the taking of such de- positions has been given. Cole v. Hall, 131 Mass. 88. A deposition cannot be used when the witness is present in INTEELOCUTOEY PEOCEEDINGS AND TEIAL. 251 court, or when the reason for taking it was insufficient or has ceased to operate. Where the cause assigned for taking the deposition was certified by the magistrate to be that the deponent was about to leave the State, the party was allowed to use the deposition after producing a subpcena directed to the witness, with an officer's return certifying that after diligent search he was unable to find the witness. Kinney v. Berran, 6 Cush. 394. And where the magistrate certified that " the deponent being about to go out of the Commonwealth and not to return in time for the trial, is the cause of taking this deposition," and there was evidence that, soon after the deposition was taken, the deponent did leave the State and had not returned, the deposition was admitted, although the deponent testified in it that he had no present intention of leaving the State. Livesey V. Bennett, 14 Gray, 130. Where several interrogatories filed for taking a deposition were objected to by writing under each of them the words " objected to by the defendant," the plaintiff's counsel, in read- ing the deposition, omitted to read these words. The defend- ant's counsel made no objection to the answers being read, but at the close of the reading called the attention of the court to the omission, and contended that he was entitled to have the deposition excluded. The court ruled that it would hear the defendant's counsel upon any objections to which he objected and exclude incompetent parts, but the counsel refused to make specific objections. It was held that the deposition as read was properly admitted. Valentine v. Middlesex B. B., 137 Mass. 28. Of Witnesses out of the Commonwealth. Commissions for taking the testimony of witnesses without the Commonwealth will issue from the clerk's office after seven days' notice to the adverse party of the filing of interrog- atories, in the Supreme Judicial and Superior courts, or four 252 MASSACHUSETTS PRACTICE. days' notice in the Municipal Court of the City of Boston ; with one day in each court for every ten miles that the adverse party or his attoi'ney may live from the clerk's office. But if the adverse party does not appear to defend the action, the interrogatories need not be exhibited to him nor notice be given him of the same. The other party may file cross-inter- rogatories, but if he fail to do this within the presciibed time the commission will be issued without further delay. Pub. Sts. c. 169, § 41 ; St. 1883, c. 188, § 2 ; Rule XIX. Sup. Jud. Ct. ; Rule XXXVIII. Sup. Ct. ; Rule XX. Mun. Ct., Boston ; Rule XV. Dist. and Police Cts. If the court is regularly sitting, application must be made thereto if it is desired to have the commission directed to any other person than a commissioner appointed by the governor of the Commonwealth to take depositions in the foreign State or country ; but, at other times, or by agreement of parties, the clerk may issue a commission directed to any justice of the peace, notary public, or other officer legally empowered to take depositions or affidavits in the State or country in which the deposition is to be taken. Rule XIX. Sup. Jud. Ct. ; Rule XXXVIII. Sup. Ct. In the inferior courts the clerk may issue a commission to any commissioner to take deposi- tions, appointed by the governor, or to any officer empowered to take depositions in the State or country in which the depo- sition is to be taken, unless the parties agree upon a com- missioner. Rule XX. Mun. Ct., Boston ; Rule XV. Dist. and Police Cts. When a witness refuses to testify before the commissioner, the court here will, on motion, issue " Letters Rogatory," under the test and seal of the court, directed to a court of like jurisdiction in the State where the witness resides, and praying such court to issue process to compel the witness to testify.^ I A witness in this Commonwealth maybe summoned and compelled, in like manner and under the same penalties as are prescribed in the case of INTERLOCUTOEY PROCEEDINGS AND TRIAL. 253 In the Supreme Judicial and Superior courts, no action is to be postponed or continued to await the return of a commission, if it shall appear that there has been any negligence to apply for and transmit the same. Rule XXV. Sup. Jud. Ct. ; Rule XLII. Sup. Ct. The following form of a commission for taking a deposition without the State sufficiently indicates the requirements of the statutes and rules of court in that regard.^ Commonwealth of Massachusetts. Suffolk, ss. To any Commissioner appointed by the Governor of said Commonwealth of Massachusetts, or to any Justice of the Peace, Notary Public, or other Officer legally empowered to take Depositions or Affidavits,^ in The State of New Hampshire. Greeting. Assured of your prudence and fidelity, We do, by these Pres- ents, appoint and empower you to take the deposition of J. G. of Concord in said State of New Hampshire, to be used in a suit now pending in our Superior Court, between A. B. as plaintiff, and C. D. as defendant ; and on certain days, to be by you appointed, to cause the deponent to come before you, and him carefully examine on oath or affirmation, in answer to* the interrogatories hereunto a domestic deposition, 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 commissioners appointed under the authority of the State or government in which the suit is pending ; and if the deposition is taken before such commissioners, the witness may be summoned and compelled to appear before them by process from a justice of the peace in this Commonwealth. Pub. Sts. c. 169, § 44. See Commonwealth v. Smith, 11 Allen, 243. 1 The court has nothing to do with interrogatories before the commis- sion is returned, but they must be objected to, if at all, and the objections noted, before the commission is sent out. Potter v. Leeds, 1 Pick. 309 ; Anon., 2 Pick. 165; Adams v. Wadleigh, 10 Gray, 360. ' The parties may agree upon an officer to take the deposition. See Rule XIX. Sup. Jud. Ct. ; Rule XXXVUI. Sup. Ct. ; Rule XX. Mun. Ct. , Boston i Rule XV. Dist. and Police Cts. 254 MASSACHUSETTS PRACTICE. annexed ; and reduce the examination, or cause the same to be reduced, to writing in your presence ; and after such deposition shall thus be reduced to writing, it shall be carefully read to or by the deponent, and shall then be subscribed by him. You shall not permit the opposite party to attend at the taking of the deposition, either himself or by any attorney or agent, nor to commu- nicate, by interrogatories, or suggestions with the deponent, whilst giving his deposition in answer to the interrogatories annexed to tliis commis. slon. And you shall take such deposition In a place separate and apart from all other persons, and permit no person to be present during such examination, except the deponent and yourself, and such disinterested person (if any) as you may think fit to appoint as a clerk, to assist you in reducing the deposition to writing. • And you shall put the several inter- rogatories and cross-interrogatories to the deponent in their order, and take the answer of the deponent to each, fully and clearly, before proceeding to the next, and not read to the deponent, nor permit the deponent to read, a succeeding interrogatory until the answer to the pre- ceding has been fully taken down.i Of this our writ, with your doings by warrant of the same, you will make return under seal into our said court, with all convenient expedition. Witness the Honorable A. M., Chief Justice of our said Court, and the seal thereof, at our City of Boston, on this twelfth day of April, in the year of our Lord one thousand eight hundred and ninety-three. , J. A. W., Clerk. Following is a form of the commissioner's certificate : — State of Nevt Hampshibe. Merrimack, ss. Pdhsuant to the foregoing commission, I caused the said J. G-. to come before me, on the twentieth day of April, a. d. 1893, and after having sworn the said J. G. to testify the truth, the whole truth, and nothing but the truth, relating to the cause for which the deposition is taken, I examined the said J. G. and reduced his testimony to writing. The opposite party was not present, by 1 Rule XX. Sup. Jud. Ct. ; Rule XXXIX. Sup. Ct. ; Rule XX. Mun. Ct., Boston ; Rule XV. Dist. and Police Cts. INTEELOCUTOEY PEOCEBDINGS AND TEIAL. 255 himself or by an agent or attorney, nor did he communicate in any manner with the deponent whilst giving his depositiofl ; and I took said deposition separate and apart from all other persons, no person being present except myself, and N. N., a disinterested person whom I appointed as clerk to assist me in reducing the deposition to writing ; and in taking the deposition, I put the in- terrogatories and cross-interrogatories to the deponent as directed in the foregoing commission, and in all respects fully and exactly complied with the directions in said commission, in taking the same. And after the said deposition was taken, I carefully read the same to the said J. G-., and he subscribed it in my presence. F. M. T., Commissioner for the Commonwealth [seal] of Massachusetts. The testimony of several witnesses may be taken on one commission, with one caption and the same interrogatories. Howe V. Fierson, 12 Gray, 26. Although, in taking a deposition within the Commonwealth for use in the courts, the statute requirements in regard to form must be strictly observed, the construction of the stat- utes in regard to foreign depositions is settled to be that any such deposition, taken before a person authorized by the law of his own State or country to take depositions, and with an opportunity for cross-examination, may be admitted or re- jected at the discretion of the court if taken " in any other manner than is prescribed" in Pub. Sts. c. 169, §§ 40-42, whether the difference in the manner of taking consists in tlie magistrate not being a commissioner, in the want of any commission, or in the failure to pursue the prescribed forms in the execution of a commission. See Pub. Sts. c. 169, § 43. But the party for whose use the foreign deposition is taken is not entitled to use it, as matter of right, unless it is taken before a duly authorized magistrate and with all the forms pre- scribed in the case of a domestic deposition, Burt v. Allen, 103 Mass. 41, and cases cited ; and a foreign deposition is not ad- missible, unless it appears that the adverse party had sufficient notice of the taking thereof, and opportunity to cross-examine 256 MASSACHUSETTS PRACTICE. the witness, or from the circumstances of the case that it was impossible to give him such notice. Pub. Sts. c. 169, § 43. When a deposition has been taken and certified by any person as a justice of the peace or other officer authorized by the law of his State to take depositions, and by force of a commission, if it is objected that the person so taking and certifying the same was not such officer, the burden of proof is on the party making the objection. And if a like objection is made to a deposition taken without a commission, it is incumbent on the party producing the deposition to prove that it was taken and certified by a person duly authorized. Rule XIX. Sup. Jud. Ct. ; Rule XXXVIII. Sup. Ct. ; Rule XX. Mun. Ct., Boston ; Rule XV. Dist. and Police Cts. See McKinney v. fFi7sow, 133 Mass. 131. The omission of the deponent to answer the interroga- tories fully does not preclude the admission of the deposition in evidence. And if it does not appear that the witness is within the Com- monwealth at the time of the trial, this is sufficient foundation for the admission of the deposition. Todd v. Bishop, 136 Mass. 386. Where the certificate of the magistrate annexed to a foreign deposition was headed " State of Massachusetts, Suffolk, ss.," it was held to be competent for the court to find that it was taken in the foreign country, from evidence that the envelope in which it was received bore the postmark and postage stamp of such foreign country. McKinney v. Wilson, uhi supra. Where bound books were made part of a deponent's answers, it was held that they were sufficiently annexed to the deposi- tion by sealing them and enclosing them under the same cover with the deposition, which cover was properly directed to the clerk of the court, Shaw v. McGregory, 105 Mass. 96; and the commission and deposition are sufficiently connected by the envelope and official seal, although not actually attached to each other. Savage v. Birckhead, 20 Pick. 167. See INTERLOCUTORY PROCEEDINGS AND TRIAL. 257 Downs V. Hawley, 112 Mass. 237 ; Ide v. Pierce, 134 Mass. 260; Boston and Fairhaven Iron Works v. Montague, 135 Mass. 319. A witness whose deposition is taken out of the Common- wealth may properly refuse to annex to it a document in his possession, if he produces the original at the taking of the deposition and annexes a copy which he swears to be correct. And such a copy is admissible in evidence. Binney v. Bussell, 109 Mass. 55. Nor is it necessary to send an original docu- ment out of the State to be proved by the subscribing witness thereto. ClarJc v. Houghton, 12 Gray, 38. Formal objections to a deposition cannot be taken at trial after the same has been read before an auditor without objec- tion. Gould v. Hawkes, 1 Allen, 170. A deposition was held to be admissible, although it was cer- tified to be that of J. G., but was signed by the deponent J. H. G. Beeder v. Holcoml, 105 Mass. 93. ADVANCING CAUSES. [See Pub. Sts. c. 167, § 48, Part IL post.] Following is a form of affidavit for advancing a cause under the statute : — Commonwealth of Massachusetts. Superior Court. April Sitting. May 21st, 1893. Suffolk, ss. A. B. V. C. D. And now comes the plaintiff in the above entitled action, and on oath says that the allegations contained in the declaration filed in said action are true, and that in his belief there is no defence to, said action ; wherefore he prays that an order may be entered calling on the defendant to show cause why judgment in said action should not be given for the plaintiff. A. B. Suffolk, ss. May 21st, 1893. Then personally appeared the above-named A. B., and made oath that the foregoing affidavit by him subscribed is true, before me, A. M. H., Justice of the Peace. 17 258 MASSACHUSETTS PRACTICE. The following is a form of the order to show cause which issues upon the filing of the above affidavit : — Commonwealth of Massachusetts. Suffolk, ss. Superior Court. April Sitting, 1893. viz., May 21st, 1893. A..B.V. C. D. And now in the above action, the plaintiff, on the twenty-first day of May, 1893, having filed an aflBdavit verifying the cause of action, and swearing in his belief there is no defence, it is ordered that the defendant forthwith appear at said court and show cause why judgment should not be given for the plaintiff. By the Court. J. A. W., Clerk. In Merchants^ National Bank v. Olendon Co., 120 Mass. 97, ■ it was held that the above affidavit was in compliance with the statute provisions, and that such an affidavit need not set forth that the action was brought for the recovery of a debt or liquidated demand in money, payable by the defendant. The court has authority, independently of the statute, to advance a cause for trial. Ibid. See New York Warehouse & Security Co. v. Loomis, 122 Mass. 431. The affidavit may be made by one of several plaintiffs, and the notice of the order to show cause may be given to the attorney of record of the defendant. Rogers v. Ladd, 117 Mass. 334. Lists of actions advanced are made from time to time by the clerk and placed in order, in advance of the regular trial list or docket.^ TRIAL LIST. Separate lists of cases to be tried by a jury must be kept in the Supreme Judicial and Superior courts. Pub. Sts. o. 167, § 69. ^ In Sufiolk County this is done on Monday mornings, and proper order is taken as to the cases advanced. INTBELOCUTOKY PEOCEEDINGS AND TRIAL. 259 The rules of the Supreme Judicial Court provide that all actions shall be heard and tried in the order in which they stand on the docket, unless the court shall, upon good cause shown, otherwise order. But any action may, with the con- sent of all the parties and leave of court, be substituted for another action standing earlier on the docket; but in such case the action which stood earliest shall take the place of the one substituted for it, and shall be tried at the time when the latter would have come on in course, had there been no sub- stitution. Rule XXIII. Sup. Jud. Ct. No action can be post- poned by consent, except by the way of substitution. Rule XXV. Sup. Jud. Ct. In this court, a trial list is prepared, to be in readiness at the opening of the court on the first day of each jury sitting. No case will be placed upon such list unless one of the parties shall have filed with the clerk a written request to that effect, five days at least before the sitting of the court ; and cases will not afterwards be placed thereon, except by order of the court. Rule XXIV. Sup. Jud. Ct. In the Superior Court the rules provide that the clerks in the several counties shall make lists of cases for trial by the court or by a jury for the first civil sitting in each year, except in Suffolk, Essex, Middlesex, and Worcester. In Suffolk such list is to be made for the October sitting ; ^ and * In the Superior Court for Suffolk County, the trial list is made up of all cases the names of which have been handed to the clerk for thkt pur- pose ten days before the beginning of the October sitting in each year. The cases are distributed among the several sessions as follows: — To the " Jury- Waived " session, all the cases which are to be tried by the court without a jury. To the " First session," the iirst third of each hundred cases, reckoned by their docket numbers, as, nos. 1 to 33, 100 to 138, 200 to 233, &c. To the " Second session," the second third of each hundred cases, as, nos. 84 to 66, 134 to 166, 234 to 266, &c. To the " Third session," all the remaining cases. Cases afterwards added to the trial list during the year are placed at the end thereof, in the several sessions, according to the same rule of 260 MASSACHUSETTS PRACTICE. in Essex, Middlesex, and Worcester, for the December sitting ; and thereafter there shall be entered on said lists such other cases as are entitled to be entered ; and whenever at any sit- ting of the court any cases on said trial lists shall not have been reached in the order of trials, such cases shall be first in order for trial at the next sitting. This rule will not prevent the court, for sufficient cause, from postponing any case, or assigning a time for the trial thereof. Rule XXIY. Sup. Ct., and see New York Warehouse & Security Co. v. Zoomis, 122 Mass. 431, where it is said that " cases may be, and often are, tried at the first term at which they are entered." No case in which the pleadings are not completed so as to present an issue of fact to be tried, and no case referred to an auditor in which the report has not been filed, can be' put upon the trial list. Rule XXV. Sup. Ct. In the Municipal Court of the City of Boston, this rule is, in terms, extended to include cases sent to a referee, where the reference has not been discharged. Rule XXV. Mun. Ct. When an action is brought in a county containing two or more shire towns, the court may, at • the sitting at which the action is entered, designate the shire town in which the same shall be tried ; and the action cannot then be put upon the trial list, nor will costs be allowed, for sittings 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. St. 1882, c. 264, § 2. In the Superior Court for the counties of Suffolk, Essex, Middlesex, and Worcester, lists of actions intended for the trial list must be handed to the clerk at least ten days, and in the other counties at least seven days, before the first day of the term. In the above-named counties the trial list must be ready for the inspection of the bar by the Saturday following arrangement as is stated above. Cases may be, and sometimes are, upon notice given, transferred from the list of one session to that of another, to suit the convenience of the justices in the despatch of business. INTERLOCUTOEY PEOCBEDINGS AND TRIAL. 261 the day on which the list closes, and in the other counties five days at least hefore the first day of the sitting. Eule XXIII. Sup. Ct. In the Superior Court, the first ten cases on the list for trial by jury, exclusive of cases marked for trial " not before " a certain day (see infra), and except assigned and postponed cases (see Rule XXIV. Sup. Ct.), are in order for trial on the first day of the sitting. Rule XXIII. Sup. Ct. Whenever in an action upon the trial list for any sitting of the Superior Court, the parties thereto file an agreement in writing that such action shall be marked for trial not before a certain day in the same or the succeeding sitting, such action shall, if reached in its order upon said trial list before such day, be postponed thereto in accordance with such agreement, and shall be placed upon the list of actions in order for trial on such day next after the cases, if any, which have been on the list for the preceding court day ; provided that if such action is in order for trial on the day on which such agree- ment is filed, it shall not, if reached on that day, be so post- poned except by the order of the court. If two or more actions are so postponed to the same day, they are to be placed upon the trial list for that day in the order in which the agreements for postponement were filed. St. 1884, c. 304. Instead of postponing a case in the manner thus provided, the parties may, by a writing filed with the clerk, or orally in the presence of the clerk, agree that the action be passed ; and in such case the action will be stricken from the list temporarily, and may be restored thereto on such day as the parties shall, by a writing filed with the clerk, agree, or by either party on three days' notice in writing to the opposite party. St. 1890, c. 154. Cases for the court as well as issues of law, and motions in cases not on the trial list, are heard at such times during the sitting as shall be deemed convenient and proper by the pre- 262 MASSACHUSETTS PEAOTICE. siding justice. In the counties other than Suffolk such cases are customarily tried in their order, commencing upon a day fixed by the presiding judge, generally, but not invariably, after the close of jury trials, and public notice of the day so fixed is ordinarily given. In Suffolk County " court cases " are tried at a sitting held specially and exclusively for that purpose. In the Municipal Court of the City of Boston, lists of con- tinued actions intended for trial may be handed to the clerk before five o'clock on Thursday of each week, and the trial list is to be made up and ready for the examination of the bar by the first day of the term, i. e., Saturday. Actions may afterwards be put upon the list, for cause shown, on notice and motion, and such actions will be placed at the end of the list in the order of the motions therefor. Rule V. Mun. Ct. In the same court, actions which have remained on the docket three successive terms, without any proceedings had by either party, are, unless the court otherwise orders, con- tinued " under rule," and cannot thereafter be put upon the trial list except by agreement of parties, or upon not less than three, nor more than seven, days' notice given to the opposite party, and proved by certificate thereof filed with the clerk when the action is marked for trial. And no costs will be allowed while the case is so continued. Rule XXXII. Mun. Ct. Following are forms of such notice and certificate, as sup- plied by the clerk for the use of the bar ; — Notice of Trial. (Under Rule XXXII.) Boston, April 24, 1893. Deab Sm, — I shall mark for trial at the term of the Municipal Court of the City of Boston, for civil business, to commence on Saturday the 28th instant, the action of A. B., plaintiff, va. C. D., INTERLOCUTORY PROCEEDINGS AND TRIAL. 263 defendant, and E. F., trustee (No. 999), now continued under the provisions of Rule XXXII. of the rules of said court. Yours respectfully, M. N., Att'y for Pl'fE. Certifioate of Notice. I certify that on Tuesday, April 24, 1893, I notified S. T., Esq., the attorney for the defendant, that I should mark for trial the action named in the foregoing notice, as therein stated, by [mailing a notice of which the above is a copy, addressed to him at his office, No. 2 Pemberton Square, postage prepaid]. M. N., Att'y for Pl'fE. Boston, April 27, 1893. Trials in this cojirt begin on the second day of the term (Monday) unless the court otherwise orders. Rule VIII. Mun. Ct. In the district and police courts, lists of continued actions intended for trial are to be handed to the clerk, at least six days, exclusive of Sunday, before the trial day, and written notice thereof is to be given at the same time, by mail or otherwise, to the adverse party or his attorney. The clerk is to make a list of the actions so handed to him, and to post the same in his office for examination by the bar, at least three days, exclusive of Sundays, before the trial day. No case in which the pleadings are not completed is to be put upon the trial-list. Actions are to be placed upon the list in the order of their numbers, with the names of parties and their attorneys. Actions may be afterwards placed upon the list, at the end thereof, by consent or order of the court. When an action on the trial list is continued to a future day, it is to be put upon the list for that day without further notice. Rule IX. Dist. and Police Cts. For a schedule of the trial days in the several district and police courts, see ante^ p. 14. 264 MASSACHUSETTS PRACTICE. SHORT LIST. In those counties where a " short list " is used, it is made up from day to day, in the discretion of the court, in the order of the cases on the trial list. Parties are not required to be ready in court until their case has been placed upon the short list, but it is in order at any moment thereafter. As to the position upon the short list of cases which have been marked " not before " a certain day, by agreement of" parties, see St. 1884, c. 304, ante, p. 261. The clerk of the Superior Court for the county of Suffolk, is required, as early as 12 o'clock noon of each court day next preceding a trial day, to make a list of the cases for trial in each session on the following trial day, and, as early as possi- ble after 2 o'clock in the afternoon, deliver without charge a printed copy of such list as it was at 2 o'clock to any per- son applying therefor. No case can be placed on said list after 12 o'clock without the consent of all parties thereto; and no case on said list at 2 o'clock is to be postponed except by order of the court. St. 1889, c. 459. CALL OP DOCKET. In the Supreme Judicial Court, in many of the counties, but not in Suffolk, the docket of cases is called at each jury term ; but there is no rule of court requiring such practice. See Cummings v. Jacobs, 130 Mass. 419. In the Superior Court, in the counties other than Suffolk, the trial docket is customarily called on the first day of each sitting, and such order is made as the court and parties may determine or agree to, in respect of assignments, defaults, nonsuits, continuances, &c. It is therefore advisable that every attorney having cases on the trial list in these courts should be present at this preliminary call of the docket. It is within the discretion of every court, as incident to the regulation of its business, at such times as it may appoint, to call the docket of actions which have not reached final judg- INTEELOCUTOEY PEOCBEDINGS AND TRIAL. 265 ment, and to default any party who fails to appear when called, even if an appearance has been entered in his behalf and the case has been referred under rule of court. And the refusal of a motion to remove such default is within the dis- cretion of the court and not subject to exception. Willey v. Durgin, 118 Mass. 64, and cases cited.^ SUBPCENAS. Every clerk of a court of record and every justice of the peace may issue summonses for witnesses in all cases pending before courts, magistrates, auditors, referees, arbitrators, and other persons authorized to examine witnesses ; and the form of the summons may be altered from time to time like other writs. St. 1885, c. 141.^ Such summons may be served in any county by any officer qualified to serve civil process, or by a disinterested person, by exhibiting and reading the sub- poena to the witness, or by giving him a copy thereof, or by leaving such copy at the place of his abode. Pub. Sts. c. 169, § 2. No person is obliged to attend as a witness unless the fees allowed by law for a day's attendance, and for travelling to 1 A former rule of the Superior Court provided that the civil docket, or such part thereof as the presiding judge should direct, should be called at the commencement of the last term of .the court for civil business held for the year in each county ; and that all suits which had remained with- out any action therein during the year might be dismissed unless cause was shown to the contrary. It was held that the existence of this rule did not prevent the presiding judge from ordering the docket to be called at a different time, after proper notice had been given (see Willey v. Durgiii, supra), and it is apprehended that general calls of the docket will from time to time be ordered in the exercise of the discretion of the court. 2 Any justice of the Supreme Judicial Court or the Superior Court, either in term-time or vacation, upon the application of any tribunal having authority to summon but not the power to compel the attend- ance of witnesses and the giving of testimony before it, may in his dis- cretion compel the attendance of such witnesses and the giving of testimony before any such tribunal in the same manner and to the same extent as before said courts. St. 1883, c. 195. 266 MASSACHUSETTS PRACTICE. and returning from court, are previously paid or tendered to him. Ibid. § 3. Nor is he obliged to attend after the time for which his fees have been paid or tendered. Consequently, it is necessary for the party desiring to secure the witness's attendance to tender him his fees in advance for each suc- ceeding day of the trial without waiting for the witness to ask for them. Failing to do so, the party will not be entitled to a capias to enforce the attendance of the witness. Atwood V. Scott, 99 Mass. 177. Failure to attend as witness when duly summoned, without a reasonable excuse, renders the person summoned liable to- an action of tort for damages in behalf of the party summon- ing him, and is also a contempt of court, punishable by a fine not exceeding twenty dollars. The court will issue a capias warrant to bring in such a witness to answer for the contempt, and also to testify in the cause in which he was summoned. Pub. Sts. c. 169, §§ 4-6. When a subpoena is served by a disinterested person not an officer, it is within the discretion of the court to which the subpoena is returnable to allow and tax a reasonable compensation for such service, not exceeding that allowed to officers for similar service. Young V. Makepeace, 108 Mass. 233. The following is the form of subpoena used in the Massa- chusetts courts : — COMMOirWEALTH OF MASSACHUSETTS. Suffolk, ss. To A. B., of Boston, in said Suffolk, Gkeeting. Yoir are hereby required, in the name of the Commonwealth of Massachusetts, to appear before the Superior Court for civil business, second session thereof, holden at Boston, within and for the County of Suffolk, on the first day of May, a. d. 1893, at nine o'clock in the forenoon, and from day to day thereafter, until the action hereinafter named is heard by said court, to give evidence of what you know relating to an action of contract then and there to be heard and tried between C. D., plaintiff, and E. F., defend- INTEELOCUTOEY PEOCEEDINGS AND TEUL. 267 ant.[*] Hereof fail not, as you will answer your default under the pains and penalties in the law in that behalf made and provided. Dated at Boston, the thirtieth day of April, a. d. 1893. W. S. H., Justice of the Peace. If the subpoena is duces tecum, insert at the [*] in the above form the words : and have you there with you, &c. (describing fully the book, paper, or other matter to be produced). CHALLENGES. It is the duty of the court, on motion of either party to a suit, to examine on oath any person called as juror therein, to know whether he is related to either party, or has any interest in the cause, or has expressed or formed an opinion, or is sensible of any prejudice or bias therein; and the party objecting to the juror may offer any other competent evidence in support of the objection. If it appear to the court that the juror does not stand indifferent in the cause, another must be placed in his stead for the trial of that cause. Pub. Sts. c. 170, § 35. The examination thus provided for may be made by the parties or their attorneys, under the direction of the court. St. 1887, c-. 149. If the objection to a juror is known, but not taken advantage of before the trial begins, the same objection cannot afterwards be raised except by leave of court. Pub. Sts. c. 170, § 39. A party against whom a verdict has been rendered may, upon proof to the satisfaction of the court that a juror did not stand indifferent, by reason of facts unknown to the party until after the verdict, be granted a new trial or a review at the discretion of the court ; but he is not so entitled as matter of law, and has no right of exception if the new trial or re- view is refused. Woodward v. Dearb, 113 Mass. 297 ; Smith V. Earle, 118 Mass. 531 ; Wassum v. Feeney, 121 Mass. 93. And whether the objection of interest on the part of a juror is made at the trial, or after verdict on a motion for a new trial, the decision of the presiding judge on the question of 268 MASSACHUSETTS PRACTICE. competency cannot be revised on exceptions. Einnicut v. Stockwell, 8 Cush. 73. If the competency of a juror is sought to be questioned after verdict, it must appear positively that the objection was unknown to the objecting party and his attorney before the juror was sworn. Russell v. Quinn, 114 Mass. 103 ; and the fact that it was not known to the party before trial, if it was known to his counsel, is no reason for granting a new trial. Kent V. Charlestown, 2 Gray, 281. As a general rule the interest of a city or town in a cause will disqualify its inhabitants from acting as jurors therein. Hawes v. Gustin, 2 Allen, 402. But no juror is so disquali- fied by reason of being an inhabitant of the City of Boston. Pub. Sts. c. 160, § 13. In Suffolk County the service of traverse jurors is limited to thirty days at any sitting, unless a longer service is neces- sary to finish a case commenced within that time. Pub. Sts. c. 170, § 5. The statute is construed to mean days on which the court is actually in session. Provident Inst, for Savings V. BurnJiam, 128 Mass. 468. For thfe manner of impanelling jurors in Suffolk County, see Pub. Sts. c. 170, § 26 et seq} In addition to challenge for cause, either party, before the trial begins, may challenge peremptorily two of the jurors from the panel called to try the cause. Ibid. § 36. Peremptory challenges are often made, when for any reason it is not desirable to have it known from which side the chal- lenge proceeds, by handing a note to the clerk, stating that the party cliallenges the juror or jurors therein named, and the court will thereupon order the challenged juror or jurors to withdraw from the panel. But in Suffolk County, the judges have sometimes required that all peremptory challenges be made viva voce, either when the name of the juror is drawn 1 No venires issue for jurors for the Supreme Judicial Court in Barn- stable County unless there is some ease for trial by jury. St. 1889, c. 173. The preparation of the list of jurors in Nantucket is regulated by St. 1891, c. 131. INTEELOCUTOKY PROCEEDINGS AND TRIAL. 269 from the box (see Pub. Sts. c. 170, § 31), or as soon as the whole panel for the trial of the cause is drawn. To the Array A challenge to the array is to the whole body of jurors returned from the county, and appears, at common law, to have been allowed only on account of the partiality or default of the sheriff or other officer who made the return. In this Commonwealth the array of the jurors is made up by the clerk of the court. Pub. Sts. c. 170, § 26. Partiality or miscon- duct in the issue and transmission of the venires by the sheriff or clerk of the court might be ground for a challenge to the array, because it would show that there was no legal jury. But an objection to the manner of preparing the jury list, or of drawing the jurors, or to the return of the constable in any town or city, does not affect the whole panel, and is not, there- fore, a ground of challenge to the array, but only to the polls of the jurors from such town or city. All challenges are triable by the court. Commonwealth v. Walsh, 124 Mass. 32, and cases cited. See St. 1887, c. 149. For a form of chal- lenge to the array interposed in a civil case, see Provident Inst, for Savings v. Burnham, 128 Mass. 458, 459. NOTICES TO PRODUCE AT TRIAL. When Necessary. When an instrument or writing to be proved is in the hands of the adverse party, it is, in general, necessary to give notice to produce it before secondary evidence of its contents can be given. There are three cases in which such notice is unnecessary : First, when the instrument to be produced is a duplicate origi- nal with one in the possession of the other party. Second, when the instrument to be proved is itself a notice, such as a notice to quit, or of the dishonor of a bill of exchange, or of 270 MASSACHUSETTS PEACTICE. the filing of interrogatories. See 1 Greenleaf on Evidence, § 561 ; Quinl&y v. Atkins, 9 Gray, 371, and cases cited ; Eagle Bank v. Ohapin, 3 Pick. 180. Third, when from the nature of the action the defendant has notice that the plaintiff intends to charge him with the possession of the instrument. 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 obtained possession. Greenl. Evid. ubi supra. How Given. Notices to produce should be in writing, and should be delivered or mailed to the opposing party or his attorney a reasonable time before the document, book, or other matter required is to be used in court.^ When notice is given in court, the presiding judge will allow the party notified a rea- sonable time to comply with it, unless it appear that the mat- ter to be produced is in court. It is a question of fact for the decision of the presiding judge whether a sufficient notice has been given to warrant the admission of secondary evidence. Bourne v. Buffington, 125 Mass. 481. Although the terms of a notice may incorrectly describe the thing to be produced, yet if the description of it is such that there could have been no mistake as to what was in- tended, the notice will be held sufficient. Bogart v. Brown, 5 Pick. 18. If the notice is not complied with, and the party notified admits that the books or papers required are in his possession, the party notifying will be admitted to show by other evidence the contents of the books or papers in question. If the party notified responds that he has not the matter required, the notifying party may give evidence of its nature or contents, 1 Depositing a letter in the post-office, properly addressed, with the postage prepaid, is prima fade evidence that the person to whom it was addressed received it. Briggs v. Hervey, 130 Mass. 186. INTEELOCUTOKY PROCEEDINGS AND TRIAL. 271 if it appear that he has made proper search and used reason- able diligence to procure the original. Bemis v. Charles, 1 Met. 440 ; Thayer v. Middlesex Mut. Fire Ins. Co., 10 Pick. 326 ; Narragansett Bank v. Atlantic Silk Co., 3 Met. 282. A paper, produced on notice and inspected by the party calling for it, may be put in evidence by the party producing it ; but to enable him to do this it must clearly appear to be the very document called for. Beed v. Anderson, 12 Cush. 480 ; Clark v. Fletcher, 1 Allen, 53 ; Xong v. Drew, 114 Mass. 77 ; 1 Greenl. Evid. § 563. VIEW. The jury in a case may, at the request of either party, be taken to view the premises or place in question, or any prop- erty, matter, or thing relating to the controversy between the parties, when it appears to the court that such view is neces- sary to a just decision : provided the party making the motion advances a sum suflBcient to defray the expenses of the jury, and the officers who attend them in taking the view ; which expenses are to be afterwards taxed like other legal costs if the party who advances theni prevails in the suit. Pub. Sts. c. 170, § 43. In practice, when a view is ordered, an officer or officers are placed in charge of the jury and sworn to keep them to- gether and to permit no person to communicate with them, during the view, except the counsel for the respective parties, one of whom on each side customarily accompanies the jury, and may point out to them such matters and things upon the premises viewed as he may deem essential.^ 1 The following is the extended form of the oath administered, in Suffolk County, to the officer, or officers, having charge of the jury : You solemnly swear that you will take this jury to the premises in question and suffer them to view the same as far as may be deemed expedient, together with all lines, monuments, marks, and boundaries which shall be pointed out to you by the respective parties ; that you will suffer no debate in the premises, and no person to speak to them unless it be 272 MASSACHUSETTS PRACTICE. The presiding justice may properly rule upon the effect of evidence and direct a verdict, notwithstanding the fact that the jury in the case has taken a view. Tully v. Fitehhurg R.B., 134 Mass. 499, 503 ; Bigg v. Boston, Bevere Beach, &c. B.B., 158 Mass. 309. STENOGEAPHER. By St. 1885, c. 291, as amended by St. 1887, c. 74, and St. 1892, c. 133, the judges of the Superior Court, or a majority of them, are required to appoint a stenographer for each county except Suffolk, who shall be sworn officers of the court. It is the duty of the stenographers to attend all ses- sions of the court for civil business in the counties for which they are severally appointed, and to take stenographic notes of all evidence taken at such trials and of the rulings and charge of the court, and when requested by the judge to read from such notes in open court any portion of the testimony so taken, and to furnish the judge, when requested, a tran- script from such notes fully written out of such part of such testimony, charge or rulings as may be desired, and upon request to furnish either party to such action within a reason- able time a like transcript upon payment of ten cents a hun- dred words for each copy so furnished. In case the presiding judge requires a copy as aforesaid, the stenographer is entitled to payment therefor at the same rate, to be paid by the county in which such trial may take place when certified by the pre- siding judge. In case of the removal from office, or of the death, resignation, or inability of any such stenographer to discharge the duties of his office, the court may appoint a suc- cessor in his stead ; and in case of the sickness or temporary absence of the stenographer the court may appoint a compe- tent person to act during such absence or sickness. A. B. on the part of the plaintifi, or C. D. on the part of the defendant, in order to point out such lines, monuments, marks, and boundaries as shall be necessary for the determination of the issue; and, after having viewed the premises sufficiently, you will return the jury into court. INTERLOCUTORY PROCEEDINGS AND TRIAL. 273 During the trial of a case at which the stenographer is present, the examination of witnesses is not to be interrupted for the purpose of having notes of their testimony taken, except by the official stenographer. St. 1885, c. 291, § 5. By St. 1887, c. 24, it is provided that the judges shall appoint four stenographers for the Superior Court for the county of Suffolk, The act further provides that when in the trial of an action, both parties agree in writing that a steno- graphic report of the evidence, or of the charge, or of any part of the proceedings shall be taken ; or when, on the appli- cation of either party, the court deems it advisable that a report of any part of the proceedings shall be so taken, — full notes shall be so taken, and transcripts thereof, or of such part thereof as may be required, shall be furnished to either party on the payment of ten cents per hundred words for each copy furnished ; and in case the presiding judge requires such transcript he may order the expense thereof to be paid equally by the parties at the same rate, and the amount so paid may be allowed to the prevailing party. The purpose of the provision for stenographers is said to be to afford assistance to the court and the counsel in con- ducting the trial and in drawing up reports and bills of excep- tions, not that a complete record of all that took place in the court below, whether material or immaterial to the under- standing of the questions of ■ law reserved, should be trans- mitted to the Supreme Judicial Court. Churchill v. Palmer, 115 Mass. 310, 314. CONDUCT OF TRIAL. The rule is settled in this Commonwealth that, in all cases, the plaintiff has the right to open and close. The reason of the rule obviously lies in the maxim, ei incumbit prdbatio qui dicit, non qui negat, and its consequence, that the party who asserts the affirmative of the issue is entitled to begin and to reply. And the established rule, as laid down in the text- is 274 MASSACHUSETTS PEACTIOE. books, is that if the record contain several issues, and the plaintiff hold the affirmative in any one of them, he is entitled to the opening and close. 1 Greenl. Evid. §§ 74, 75 ; Page v. Osgood, 2 Gray, 260; Dorr v. Tremont National Bank, 128 Mass, 34&, 358, and cases cited.^ 1 The rule formerly existed in the Court of Common Pleas that the defendant might obtain the right to open and close by filing a written admission of all the facts necessary to be proved by the plaintiff when the general issue was pleaded, the idea being that matters of special defence would necessarily have to he proved by the defendant. This rule has never existed either in the Supreme Judicial or the Superior Court. A number of decisions upon the applicability of the rule appear in the reports, but are now of no value. In cases of assessing damages for lands taken under the right of emi- nent domain, the proceedings are not in the form of an action at law or a suit in equity, and the owner of the land is really the plaintiff, and there- fore entitled to open and close before any tribunal authorized to assess the damages. Per Gray, C. J., in Dorr v. Tremont National Bank, vhi supra, at page 360, citing cases and statutes. See Winnisimmet Co. v. Grueby, 111 Mass. 543 ; Burt v. Wigglesworth, 117 Mass. 302. In Brooks v. Barrett, 7 Pick. 94, it was held that upon an appeal by an executor from a decree of a judge of probate disallowing a will on the ground that the testator was not of sound mind, the appellant should open and close, as having to prove the execution of the will and to establish the testator's sanity affirmatively. In Crowninshield v. Crowninshield, 2 Gray, 524, the same rule was, in effect, reaffirmed, although the appel- lees insisted that it was in contravention of the maxim that every man is presumed to be sane until the contrary is shown. In the opinion, Thomas, J., says : " Nor does the existence of a general presumption that men are sane change the burden of proof. It may stand in the stead of proof; it may make a prima facie case; where the question of sanity is made, it may render necessary greater weight of evidence in him who seeks to impeach it; but it does not change the burden of proof. But when the evidence is in, on the one side and the other, the issue still con- tinues as before; and he to whose case the proof of such sanity is neces- sary, has the burden," citing Powers v. Russell, 13 Pick. 76. The learned judge goes on to say, " But we are by no means satisfied that, in relation to wills, there is any legal presumption in this Commonwealth of the sanity of the testator." This latter expression of opinion is overruled in Baxter v. Abbott, 7 Gray, 71, where the court expressly hold that the legal presumption, in the absence of evidence to the contrary, is in favor of the sanity of the testator, — Thomas, J., dissenting. The latter case affirms, in other respectSj the law as laid down in Crowninshield v. Crowninshield. INTEELOCUTORY PEOCEEDINGS AND TRIAL. 275 The ordinary course of a jury trial is as follows : first, reading the pleadings by plaintiff's counsel ; second, plaintiff's opening ; third, plaintiff's direct and defendant's cross exam- ination of plaintiff's witnesses ; fourth, defendant's opening ; fifth, defendant's direct and plaintiff's cross examination of defendant's witnesses ; sixth, plaintiff's direct and defendant's cross examination of plaintiff's witnesses in rebuttal ; seventh, defendant's closing argument ; eighth, plaintiff's closing argument. Although it is customary, when more than one attorney is employed upon the same side, to divide the labor of trial, the junior counsel opening the case and conducting the direct ex- amination, and the senior conducting the cross-examination and making the closing argument, this course is by no means invariable or necessary, the whole arrangement being in the discretion of counsel, subject only to the provisions of the rule which requires that the examination and cross-examination of each witness shall be conducted by one counsel only on each side. Rule LVI. Sup. Ct. No such provision appears in the rules of the Supreme Judicial Court; but, for obvious reasons, and in justice to the witness, the court will require counsel to follow the practice indicated. In the Superior Court, counsel are required to stand while examining or cross-examining a witness, unless, for satisfac- tory reasons, the rule is dispensed with in a particular case. Eule LVI. Sup. Ct. The order in which evidence shall be introduced is within the discretion of the court and is not the subject of exception. Commonwealth v. Dam, 107 Mass. 210. So as to the number of witnesses which either party may examine before the oppo- site party shall be called upon. Cushing v. Billings, 2 Cush. 158. The decision of the presiding judge as to the competency of witnesses is conclusive, and also as to whether the witness has sufficient knowledge of the nature and obligation of an oath. 276 MASSACHUSETTS PRACTICE. Quinsigamond Bank v. Hohhs, 11 Gray, 250 ; Commonwealth v. Mullins, 2 Allen, 295. It is within the discretion of the judge to order that the witnesses be examined out of the hearing of each other in civil cases ; but, according to the weight of authority, neither party is entitled to it as a matter of right. 1 Greenl. Bvid. § 432, and cases cited. The admission of witnesses to testify, who have disobeyed an order excluding them from the court- room, is within the discretion of the judge. Commonwealth v. Eall, 4 Allen, 305. It is well settled by a series of cases, beginning with Cushing V. Billings, 2 Cush. 158, that it is within the discretion of the court to allow witnesses to be called by the plaintiff in re- buttal, whose evidence might properly have been introduced in the opening. The course and extent of the cross-examina- tion is also within the control of the judge. Commonwealth v. Goddard, 14 Gray, 402 ; Ashworth v. Kittridge, 12 Cush. 193 ; Band v. Newton, 6 Allen, 38. And after a witness has been fully examined and cross-examined, and has left the coutt, the judge is not bound to order his return or strike out his testi- mony. Ward V. Fuller, 7 Gray, 179. The question whether papers which have been read in evi- dence shall go to the jury is within the discretion of the court. Burghardt v. Van Deusen, 4 Allen, 374. The court may allow a party to lead his own witness. York V. Pease, 2 Gray, 282 ; Green v. Gould, 8 Allen, 465. But it is apprehended that this privilege will not be allowed except in cases where the witness is clearly adverse, or when he is of exceptionally feeble memory, or his evidence is a surprise to the party calling him.^ 1 A party producing a witness before any tribunal competent to hear evidence, although he cannot impeach his witness by evidence of bad char- acter, may contradict him by other evidence, and may also prove that he has made at other times statements inconsistent with his testimony, first laying foundation for such proof by asking the witness whether he has not made such inconsistent statements, specifying the circumstances of the INTEELOCUTOEY PEOCEEDINGS AND TEIAL. 277 It is within the discretion of the court to order that several actions founded on the same subject-matter, brought by the same plaintiff against several defendants, shall be tried to- gether, although the defendants employ different counsel and the evidence in the several cases is different. Springfield v. Sleeper, 115 Mass. 687. A witness called for any purpose may be cross-examined by the adverse party upon the whole case. BlacMngton v. Johri- son, 126 Mass. 21, and cases cited. In the Supreme Judicial Court, the arguments of counsel, before a single justice, or a jury, are limited to two hours on each side, unless, before the beginning of the argument, further supposed statement sufficiently to designate the particular occasion, and the witness must be allowed to explain such statements if they were made. Pub. Sts. 0. 169, § 22 ; Day v. Cooley, 118 Mass. 524. This statute is to be construed strictly ; the right of contradiction under it is limited to material evidence, and the witness is to be allowed the same opportunity to explain his inconsistent statements to which a witness called by the opposite party is entitled by the practice in the English courts and the courts of the United States, though not in Massachusetts. Ryerson v. Abington, 102 Mass. 526 ; Crawford v. Weston, 131 Mass. 283 ; Common- wealth V. Donahoe, 133 Mass. 407. It is not necessary that a party be sur- prised at the testimony of a witness called by him, in order to entitle him to impeach the witness under the statute. Brooks v. Weeks, 121 Mass. 433. But the testimony to be contradicted must appear to be material. Force v. Martin, 122 Mass. 5 ; and the effect of the impeaching testimony is not to establish the truth of the earlier statement made by the witness, but to destroy the value of his testimony given in the case. Day v. Cooley, ubi supra. An affidavit executed by the attorney of a party stating that a material witness is sick and unable to attend the trial, and would, if present, testify to certain facts, as he has been informed by his client, and filed for the ^rpose of obtaining a continuance, which is refused upon the admission of the adverse party that the witness would, if present, testify as set forth in the affidavit, and agreeing that the same may be considered as evidence, — is not admissible in evidence for the adverse party upon the witness ap- pearing and testifying materially differently from what it was stated in the affidavit that he would testify ; it not appearing that the affidavit was known to or authorized by the party in whose behalf it was made, nor that the error of statement in the affidavit was not the innocent mistake of the attorney who executed it. Murray v. Chase, 134 Mass. 92. 278 ' MASSACHUSETTS PEACTICE. time be allowed by the court. Rule XLII. Objections to evi- dence are decided without argument at the trial, unless the presiding judge calls for it. Rule XXVI. In the Superior Court, each side is limited to one hour for the closing argu- ment, unless, for cause shown before beginning, further time is allowed by the court. Rule LV. Sup. Ct. When more than one counsel is to be heard on a side, the time may be divided between them, as they elect. Rule XLII. Sup. Jud. Ct. Bequests for Instructions. All requests for specific instructions to the jury must be made in writing. Rule L. Sup. Ct. An opportunity should be given the opposite side to examine them, and they may be submitted to the court either before or after the charge, but before the jury retires. After the arguments are concluded, counsel have no right to address the court or the jury upon the law or the facts of the case, except by leave of the presiding judge. Ma v. Cockshott, 119 Mass. 416, 418. If the judge gives correct instructions covering the whole case, he is not bound to instruct the jury further as to the effect of a part of the evidence. McDonough v. Miller, 114 Mass. 94, and cases cited. Nor is he required to state, at the request of counsel, abstract propositions of law, however correct they may be, unless called for by the state of the evidence. It is sufficient if he states the law accurately, and all the law called for by the evidence', in his own words and without taking up the requests for instructions seriatim. Howes v. Grush, 131 Mass. 207 ; Commonwealth v. Coolidge, 128 Mass. 55. At the close of his argument the defendant presented a large number of requests for instructions which the court de- clined to rule upon on the ground that they had not been seasonably presented, at the same time saying that, at the close of the charge, the counsel could ask for such further in- structions, and except to such parts of the charge as he should INTEELOCUTOKY PROCEEDINGS AND TRIAL. 279 see fit. At the close of the charge, the judge repeated that if there were matters which counsel thought had beeu omitted they might call attention to them. It was held that the de- fendant had no ground for exception. McMahon v. O'Connor, 137 Mass. 98. Where, after the case had been given to the jury, the judge sent for them, and, in open court, but in the absence of counsel upon both sides, instructed them further, it was held that this afforded no ground of exception. Kullburg v. O'Donnell, 158 Mass. 405. Saving Exceptions. All exceptions must be alleged and saved at the time when the opinion, ruling, direction, or judgment excepted to is given. Exceptions to the charge must be alleged before the jury are sent out.^ Rule L. Sup. Ct. The court has no dis- cretion to suspend or modify this rule. Zee v. Gibhs, 10 Allen, 248 ; Spooner v. Cummings, 151 Mass. 313.' See Chapter IX. post. * A general exception to the entire charge is irregular, and cannot be sustained. Hunting v. Downer, 151 Mass. 275. The true rule, as stated hy Mr. Justice Story and adopted by Chief Justice Marshall is as follows: " If, indeed, in the summing up, the court should mistake the law, that would justly furnish a ground for exception. But the exception should be strictly confined to that misstatement, and, by being made known at the moment, would often enable the court to correct an erroneous expression, or to explain or qualify it, in such a manner as to make it wholly unex- ceptionable, or perfectly distinct." Curry v. Porter, 125 Mass. 94. See Burt T. Merchants' Ins. Co., 115 Mass. 1 ; Commonwealth v. Costley, 118 Mass. 1. Where counsel, before the arguments, handed to the judge written requests for rulings, saying that he wished to except if they were not granted, but the attention of the opposite party was not called to them, either by counsel or by the judge, who said, " I think I will charge the jury, and if I do not cover your requests you can call my attention to the rulings to which you wish to except," to which remark the counsel assented, and after the charge neither took exceptions nor expressed any dissatisfaction with it, — it was held that exceptions were not properly saved. Boutelle v. Dean, 148 Mass. 89. 280 MASSACHUSETTS PRACTICE. VERDICTS. Unless the court in particular cases otherwise orders, the general form of verdicts is as follows. Rule XXVII. Sup. Jud. Ct. ; Rule XLIV. Sup. Ct. : — 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. When cases are tried by the court without a jury, the result of the trial is expressed in a " finding," which cannot prop- erly be termed a verdict, although having the same force and effect. It is within the discretion of the presiding justice to put inquiries to the jury as to the grounds upon which they found their verdict, and the answers of the foreman assented to by his fellows may be made a part of the record, and will have the effect of special findings of the facts stated by him ; and no exception lies to the exercise of this discretion. Spurr v. Shelburne, 131 Mass. 429, 430, and cases cited. When a jury have returned an incomplete and defective verdict, they may be sent out again in order to correct the error, even though they had separated after the first finding, before coming into court. And after a general finding for the plaintiff without an assessment of damages, the jury may be sent out again for the purpose of making such assessment, although there may have been an adjournment of the court in the mean time. Mason v. Massa, 122 Mass. 477, and cases cited. The temporary separation of one of the jurors from his fellows, by accident or mistake, this not being found to have worked injury to the party against whom a verdict is ren- dered, is not ground for impeaching the verdict. And, upon intjj;klocutoey peoceedings and trial. 281 the motion for a new trial, the testimony of the juror is com- petent to prove that nothing happened to influence him while he was separated from the other jurors. Chemical Electric Light Co. v. Howard, 150 Mass. 495. It seems to be obvious, however, that a verdict rendered in the absence of a juror will be set aside upon a motion for a new trial ; and it has been so held in the Superior Court. JSealey v. Lyons, Jan. Sitting, Norfolk, 1890. If a verdict as recorded does not state with technical accu- racy the finding of the jury upon the issue tried, and the court can see how it should be corrected, the court will reject surplusage and make the verdict conform to the issue tried. Ashton V. Touhey, 131 Mass. 26. In the Superior Court, if there is a general verdict on a declaration containing several counts, the plaintiff may, at any time during the sitting, on motion, have leave to amend the verdict and enter it on any count on which the evidence would by law, at the trial, have entitled him to recover ; and he may have leave to strike out of the declaration any defec- tive counts. Eule XLV. Sup. Ct. If questions in writing are submitted to the jury, and a general verdict is returned, the questions not being answered specifically, it is within the discretion of the court to accept the verdict and withdraw the questions. Florence Machine Co. V. Daggett, 135 Mass. 582. witnesses' cbetificates. Each witness is required by law to certify in writing the amount of his travel and attendance. Pub. Sts. c. 199, § 14. The certificates should be filed immediately upon the con- clusion of the trial. This is especially requisite in the infe- rior courts holding short terms. The memoranda often made by officers upon the subpoena, of sums paid the witness, are useless, so far as the taxation of costs is concerned, and are. 282 MASSACHUSETTS PEACTICE. properly, no part of the return. The following is the ordi- nary form of a witness's certificate : — Commonwealth op Massachusetts. Sujoerior Court. Suffolk, ss. April Sitting, 1893. A. B. V. C. D. We hereby certify that we have travelled the number of miles and attended court the number of days set against our respective names, as witnesses for the plaintiff in the above entitled cause. Miles. Days. E. F 4 2 G. H / 2 2 The certificate is not conclusive evidence that the fees have been paid or are due to the witness. Miller v. Zyon, 6 Allen, 614. As to the amounts allowed for witness fees and travel, see Costs, Chapter VII. post. FILING PAPERS TO MAKE UP JUDGMENT. The prevailing party in a suit should forthwith file with the clerk all papers and documents necessary to enable him to make up and enter the judgment and complete the record of the case. Rule XLIV. Sup. Jud. Gt. ; Rule LX. Sup. Ct. ; Rule XXVIII. Mun. Ct., Boston ;- and see Rule LXI. Sup. Ct. Such papers may be stated, in general, to be those which create the liability on which the suit is brought, and are de- clared upon directly ; as promissory notes, bills of exchange, due-bills, memorandum-checks, and bonds or other specialties. But where a paper is not directly declared upon, but merely used in evidence to support the allegations in the declaration, it need not be filed. If such papers are not filed within three months from the date of judgment in the Supreme Judicial Court, or within INTERLOCUTORY PROCEEDINGS AND TRIAL. 283 six months in the Superior Court, the clerk is to make a memorandum of the fact on the record, and judgment will not afterwards be recorded, except it be ordered bj the court upon petition and notice given to the opposite party, and no execution can issue until the papers are so filed. When a judgment is entered upon such a petition, it is entered on the records of the sitting at which the petition is granted, but is and must be considered in all respects a judgment of the sitting at which it was originally awarded. The delinquent party, in such a case, must pay the costs of recording the judgment anew and also the costs on the petition, and of the adverse party if he attends to answer thereto. See Rules, supra, and King v. Burnham, 129 Mass. 598. In the inferior courts, the prevailing party must, within six months, file all papers and documents necessary to make up and enter judgment, and no execution will issue until such papers are filed, unless on petition and notice the court other- wise orders. Rule XX. Dist. and Police Cts. ; Rule XXVIII. Mun. Ct., Boston. 284 MASSACHUSETTS PBACTICE. CHAPTER VII. COSTS. When Recoverable. In all civil actions the prevailing party is entitled to re- cover his costs, except in those cases in which a different provision is made by law. Pub. Sts. c. 198, § 1. Bills of costs are taxed by the clerk of the court, or in suits before trial justices or courts having no clerks, by the justice. But notice must first be given to the adverse party, if he has given seasonable notice in writing to the clerk or justice of his desire to be present at the taxation or caused such notice to be entered on the docket. In practice, when a notice of desire to be present at the taxation of costs has been given, the clerk will assign a time for such taxation, and the party obtaining the assignment must serve notice thereof, in writing, upon the opposite party. Notices given by or to the respective attorneys are equivalent to notices by or to the parties themselves. Ibid. § 23. An appeal lies, from the clerk's taxation, to the court in which the action is pending or any justice thereof. Ibid. § 24. An appeal from the clerk's taxation, after the entry of judg- ment, does not vacate the judgment, but, if waived before hear- ing, leaves the judgment in force as of the day when it was entered. Melvin v. Bird, 131 Mass. 561. In taxing costs in the Superior Court, in cases removed to that court upon appeal, it is customary to obtain from the infe- rior tribunal a certificate of the costs there incurred by the party finally prevailing, which amount is taxed for the pre- vailing party in addition to the costs incurred in the Superior COSTS. 285 Court.^ The certificate of the lower court is, at least, prima facie evidence of the amount of costs which had accrued in the party's favor in that court, and, in the absence of further evidence, justifies the Superior Court in allowing the amount certified. Young v. Makepeace, 108 Mass. 233. An appeal from the decision of the clerk in the matter of taxation is required to be heard and determined at the next session, unless the party recovering costs elects to have it determined by one of the justices in vacation, and gives rea- sonable notice thereof to the other party, in which case it shall be so determined. If, however, in any case, costs are taxed before the expiration of any sitting, the appeal must be heard before the final adjournment thereof by the justice holding the sitting, after reasonable notice to the adverse party. The judgment is to be considered as rendered when costs are finally taxed and allowed, except that, if the appeal is made by the party who is to pay the costs, the adverse party may take out execution and cause it to be satisfied, upon first giv- ing 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 conditioned 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. St. 1882, c. 235 ; Pub. Sts. c. 198, § 26. On the hearing of the appeal, the costs thereof may be al- 1 The prevailing party is entitled to judgment for his costs although the adverse party is an infant. Smith v. Floyd, 1 Pick. 275. Where a plaintiff was described in a writ as " L. L., who sues in his own right, but with the intent to benefit F. S. thereby," the defendant prevailing was held to be entitled to his costs as against L. L. Lapham v. Almy, 105 Mass. 391. Costs are allowed the defendant when the decision is that the court has no jurisdiction. Hunt v. Hanover, 8 Met. 236 ; or upon a discontinuance by the plaintiff. See Coburn v. Whitely, 8 Met. 272. ' The clerk or justice of a district, police, or municipal court is required to transmit with the papers in a case appealed or removed the amount of costs taxed for court or magistrate's fees, service, and witnesses. Pub. Sts. 0. 154, § 41.' 286 MASSACHUSETTS PRACTICE. lowed to either party, as justice may require, 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. Pub. Sts. c. 198, § 27. In the Municipal Court of the City of Boston, appeals in the matter of costs may be made to a single justice or to the three justices sitting in lane. In the taxation of costs, an appeal in matters of law lies from the Superior Court to the Supreme Judicial Court. Cutter V. Howe, 122 Mass. 541. But the judgment of the Superior Court, in such cases, so far as it involves matters of fact or discretion, is not open to revision upon appeal. Briggs V. Taunton, 110 Mass. 423 ; Hawkins v. Graham, 128 Mass. 20, 21 ; Huhnsr v. Hoffman, 106 Mass. 346. And a writ of error will not lie to correct a mistake in taxation of costs by the clerk. Jacobs v. Potter, 8 Cush. 286 ; Day v. Berkshire Woollen Co., 1 Gray, 420. Whether a writ of error would lie if the illegal taxation were apparent on the record, quoere. See Goodrich v. Willard, 11 Gray, 380. When, on appeal to the Supreme Judicial Court, the taxa- tion of costs in the Superior Court is not sustained, it is ordered that the order of the Superior Court in the taxation of costs be reversed, and that the case stand in the lower court for further proceedings. Cutter v. Howe, 122 Mass. 541. Questions of law affecting the taxation of costs only, and not appearing of record so as to be the subject of appeal, cannot be carried to the Supreme Court otherwise than by bill of ex- ceptions, and all questions of fact or discretion must be finally determined by the court below. In a case where judgment was entered and execution issued, it was held to be erroneous for the Superior Court, on the peti- tion of the judgment creditor, to grant leave to return and cancel the execution and obtain a new taxation of costs in respect to the travel and attendance of witnesses. " The petitioners have had a day in court, and the judgment of the COSTS. 287 court is final. It has passed beyond its control to alter or amend the judgment upon a mere petition which does not ask the exercise of that power to grant a review which the stat- ute gives." Barnes v. Smith, 104 Mass. 363. A party cannot divide his judgment into damages and costs, and take out separate executions for each, except in case of judgment against an administrator ; and so, when a defendant appealed from the taxation of costs, and before a decision upon that question the plaintiff took out an execu- tion for damages only, the plaintiff by so doing was held to have waived his costs. Davis v. Ferguson, 148 Mass. 603. Generally speaking, costs run in favor of the prevailing party to a suit, pending a reference under rule, or while the case is before an auditor, but in the Municipal Court of the City of Boston no costs are allowed while actions are under advisement, or reference, or committed to auditors. Eule XXV. Mun. Ct. Arbitrators or referees appointed under a rule of court have full power over the subject of costs and may make such award concerning costs as justice and equity may require. Nelson v. Andrews, 2 Mass. 164 ; Bacon v. Crandon, 15 Pick. 79; and this power has not been diminished or controlled by recent statutes. Pub. Sts. c. 198, § 22. They may award their own fees and the necessary expenses of the reference, such as the charges for the place of meeting and the cost of stationery, but beyond this they cannot award any costs except such as are expressly authorized by law to be taxed as legal costs. Jones V. Carter, 8 Allen, 431. An assessor appointed by the court has no power to pass upon the question of costs. Fisk V. Gray, 100 Mass. 191. Where judgment was entered for $100.00, being the amount of the penalty in a bond, and the amount of the execution was subsequently fixed at $15.00, full costs were allowed. Fish V. Gray, uM supra. When a defendant brings money into court, and offers the 288 MASSACHUSETTS PRACTICE. same in satisfaction of the damages, the plaintiff is entitled to the costs which have previously accrued, though he may not recover a larger sum than is so brought into court. Pub. Sts. c. 198, § 9. In real actions and actions of replevin the party finally prevailing is entitled to his full costs, without regard to the amount of damages recovered in the action. Pub. Sts. c. 198, § 10. See, as to interpleader, St. 1886, c. 281. 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 is to be taxed than is allowed for similar charges in suits at common law. Pub. Sts. c. 198, § 17. This provision applies to cases submitted to arbitrators. Bond v. Fay, 1 Allen, 212; Moore v. Gutter, 3 Allen, 468. When an action is brought in any county containing two or more shire towns, the court may at the term of entry designate the shire town in which the same shall be tried ; and it cannot then be put on the trial list, nor will 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. St. 1882, c. 264, § 2. In any case 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. Pub. Sts. c. 153, § 7. When a set-off is pleaded and is allowed to the extent of the plaintiff's claim, the court may award costs to either party, or dismiss the action without costs. Pub. Sts. c. 168, § 19. If a balance is found to be due to the defendant, he is entitled to judgment for such balance with his costs. Ibid. § 20. When a plaintiff, whether in the same or in different courts, brings several actions against the same defendant upon de- mands or causes of action which might have been joined in one action, or brings separate actions against defendants who COSTS. 289 might have been sued together, he can recover costs in one action only, unless after hearing the parties the court shall otherwise order. Pub. Sts. c. 198, § 11. In all cases when two or more cases are tried at the same time, in any of the courts, the presiding judge has power to reduce, in his discretion, the witness fees and other costs; but not less than the ordinary witness fees and other costs recoverable in one of the cases tried shall be allowed. St. 1892, c. 231. But when two actions were brought on differ- ent days and were returnable at different times, costs were allowed as of right in both cases. Butler v. Shapleigh, 10 Gush. 303. In actions brought before a district, police, or municipal court, or a trial justice, if the plaintiff fails to enter and prosecute his action, the defendant is entitled to judgment for his costs to be taxed by the court.^ Pub. Sts. c. 155, § 23 ; St. 1893, c. 396, § 19. And this may be done upon motion filed with a copy of the writ. No particular formality is required. It is enough if the fact of the service of the writ is alleged and the writ sufficiently described. Harding v. Downs, 110 Mass. 56. In the Supreme Judicial and Superior Courts, if the plaintiff fails to enter his writ, the defendant may obtain judgment for his costs upon filing a complaint before the next succeeding return day. Lombard v. Oliver, 5 Gray, 8 ; Duffee v. Call, 123 Mass. 318 ; Gardival v. Smith, 109 Mass. 158, 160. After judgment and execution for damages and costs has been obtained and satisfied against a defendant in an action of tort while another action is pending for the same cause against a joint tort-feasor, the plaintiff is not entitled to judg- 1 A judgment for the defendant for costs only may be «et aside by pro- ceedings under Pub. Sts. c. 187, §§ 17-19, provided the judgment or execution has not been satisfied, either wholly or in part ; or the plaintiff may proceed by writ of review. Skillings v. Mass. Benefit Assoc, 151 Mass. 321, 323. 19 290 MASSACHUSETTS PRACTICE. ment for nominal damages in the latter action so as to enable him to recover the costs thereof, but the Judgment and satis- faction in the former action may be pleaded in bar by the defendant in the latter, who will then be entitled to his costs. Savage v. Stevens, 128 Mass. 254. And in Gilmore v. Carr, 2 Mass. 171, during the pendency of an action by the indorsee of a promissory note against the maker, judgment was recov- ered by the plaintiff against the indorser for the amount of the note and costs, and execution was issued on the judgment and satisfied ; and it was held that in the action against the maker the judgment should not be for the plaintiff for nomi- nal damages and costs, but for the defendant for his costs. When Costs are not Becoverahle. No costs can be recovered in personal actions brought origi- nally in the Superior Court, except actions of replevin, if the amount finally recovered for debt or damages is not more than twenty dollars, unless the right to an easement or the title to real estate is, in fact, concerned, and the presiding judge certifies such to be the fact.^ Pub. Sts. c. 198, §§ 5, 6 ; Joannes v. Panglom, 6 Allen, 243; Reims y. Ring, 11 Allen, 352. But 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 is to be considered as having exceeded twenty dollars, and the party who finally recovers judgment in the suit will be entitled to his full costs. Pub. Sts. c. 198, § 7. In Joannes v. Panghorn, ubi supra, the court said : " The question of costs or no costs must properly rest on the verdict itself, and any addition thereto arising from an allowance of interest thereon subsequently does not affect this question." But interest which accrues before the verdict stands upon a 1 The question ■whether a particular case is one in which such a certifi- cate should be given cannot be reported to the Supreme Judicial Court. Hubner v. Hoffman, 106 Mass. 346. COSTS. 291 different ground. Thus a plaintiff in a personal action, brought in the Superior Court, who recovers a verdict of $21.16, of which f20 is for the original debt, and $1.16 for interest from the date of the writ, is entitled to costs. Douglas v. Nichols, 133 Mass. 470. No costs can be recovered by the plaintiff in the Supreme Judicial Court, in actions originally begun there or removed thereto by consent from the Superior Court, unless he recovers, either in the value of the property claimed, or of the estate in controversy, or in damages, an amount equal to three hun- dred dollars. Pub. Sts. c. 198, § 8. In any action brought imder the trustee process, in which the damages assessed do not exceed ten dollars, exclusive of all costs which have accrued in any former action, the plaintiff cannot recover costs. Pub. Sts. c. 183, § 88. In an action of assumpsit a claim in set-off was filed and the action referred to an auditor, but no rule was taken out or applied for by either party, and the case was, for that reason, dismissed. The defendant thereupon claimed costs, but they were denied him on the ground that both parties were equally in default. Lapham v. Norris, 10 Cush. 312. If a general judgment for the defendant is entered in an action in which he has filed a declaration in set-off, neither party is entitled to costs, for neither has succeeded in proving his claim. Hartford v. Co-operative Homestead Co., 130 Mass. 447. See also Caverly v. Bushee, 1 Allen, 292. Upon entry of " neither party " costs will not be allowed to plaintiff or defendant. Cohurn v. Whitely, 8 Met. 272. In civil actions before a trial justice, or a district, police, or municipal court, if a 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 appellant does not recover in the appellate court a greater sum for debt or damages than he recovered by the first judgment, he is entitled to no costs arising after the appeal, and must pay 292 MASSACHUSETTS PRACTICE. the costs of the adverse party arising after the appeal. Pub. Sts. c. 198, § 4. When a declaration in set-off was filed, and a general judgment for the defendant entered, it was held that neither party was entitled to costs, since neither had succeeded in proTing his claim. Hartford v. Co-operative Mutual Home- stead Co., 130 Mass. 447. When an action brought in the Municipal Court of the City of Boston is continued under Rule XXXII. of that court, it is expressly provided that " no costs shall be allowed while such action " is so continued. Costs to both Parties. 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 is entitled to 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, but can recover nothing for the like charges incurred on the trial of the other counts. Pub. Sts. c. 198, § 12 ; Tatem v. Adams, 2 Cush. 180. In such a case " the plaintiff is to recover no costs of the evidence introduced on his part which is specifically appli- cable to the count on which he does not obtain a verdict ; and further, the defendant is entitled to recover for costs of the evidence called and used on his part which is specially applicable to the count on which he obtained a verdict." Tatem v. Adams, libi supra. The statute was held not to be applicable to an action for slander upon two counts alleging the uttering of similar words at different times. Sayles v. Briggs, 1 Met. 291. If all the evidence offered, or that could legally have been offered in support of all the counts, would have been properly admissible COSTS. 293 under the count upon which the plaintiff prevailed, the defend- ant is not entitled to any costs. Elder v. Bemis, 2 Met. 699. In actions of replevin, if part of the goods replevied are found by the jury to belong to the plaintiff and part to the defendant, each is entitled to his costs. Powell v. Hinsdale, 5 Mass. 343. When each party files exceptions which are overruled in the Supreme Judicial Court, each is entitled to recover costs. Shattuck V. Woods, 3 Pick. 267. But where the plaintiff pre- vailed upon the defendant's exceptions and waived his own, the defendant was not permitted to recover costs on account of the plaintiff's failure to support his own exceptions. Dewey V. Humphrey, 5 Pick. 187. In all cases where costs are awarded to two adverse parties in the same suit, the court may order one sum to be set off against the other and enter judgment for the balance. When such set-off cannot conveniently be effected, each party may have an execution for the costs due him. Rule XXIX. Sup. Jud. Ct. ; Rule XL VII. Sup. Ct. Costs to Several Defendants. When in an action of tort against two or more the de- fendants plead severally, and two or more of the defendants prevail, they are entitled to separate bills of costs for travel and attendance, although they appear by one and the same attorney. Of the witness fees, court dues, and other expenses incurred, an aliquot part may be taxed in favor of each de- fendant, or they may be otherwise so distributed that, taking them together, the plaintiff shall be charged no more than if the defendants had recovered a joint bill of costs. Mason v. Waite, 1 Pick. 452 ; West v. Brock, 3 Pick. 303 ; Fales v. Stone, 9 Met. 316 ; George v. Beed, 104 Mass. 366 ; O'Connell v. Bry- ant, 126 Mass. 232. The same rule applies to cases of replevin against two or more defendants. Davis v. Hastings, 8 Cush. 313. But when several defendants in an action of tort answer 294 MASSACHUSETTS PRACTICE. jointly, and the plaintiff fails to maintain his case, the de- fendants are not entitled to tax their costs severally. Ewer v. Beard, 3 Pick. 64. See also Peabody v. Minot, 24 Pick. 329. In actions of contract prior to the passage of the Practice Act in 1852, the general rule was to allow but one bill of costs to the defendants, and this is still the law, when the defence is a joint one applicable to all the defendants. Mathers v. Gohh, 3 Allen, 467. But in a suit against the maker and indorser on a promissory note, the defendants, if successful, are entitled to separate bills of costs, because, although they may be sued jointly, they must defend separ- ately. Taylor v. Jaques, 109 Mass. 270. And the same rule applies if the parties plead severally in the appellate court, after pleading jointly in the lower court. Bill v. Boynton, 158 Mass. 274. After a Plea of Insolvency. If the defendant answers that he has been discharged in bankruptcy or insolvency, and the action is discontinued or the plaintiff nonsuited solely in consequence of such answer, the defendant cannot recover costs. But when a defence is made to rest solely upon such a discharge, and an issue is so made up in writing and found for the defendant, the latter may recover his costs after, but not before, the joinder of such issue. Pub. Sts. c. 198, §§ 2, 3. In such cases the plaintiff has a legal right to discontinue ; and if other grounds of defence are also alleged, the court should order the defendant, if he insists on a trial, to waive the discharge or proceed on his other grounds of defence.^ Goward v. Dunbar, 4 Cush. 500. When a plaintiff discontinued as against a trustee on the ground of the latter's insolvency, and the trustee was dis- charged, he was allowed his costs, insolvency not having been suggested by him as a ground for discharge. Penniman v. Mathews, 3 Cush. 841. 1 A judgment for costs may be entered against a bankrupt plaintifE before the question of his discharge is determined. Dows v. Griswold, 122 Mass. 440. COSTS. 295 When an attachment on mesne process is made and is not dissolved before the beginning of proceedings in insolvency, and when such an attachment has been dissolved by bond given by the defendant, if the claim upon which the suit was brought is proved against the estate of the debtor, the plain- tiff may also prove the legal fees, costs, and expenses of the suit and of the custody of the property to the date of the first meeting, and the amount thereof is a privileged debt. St. 1892, c. 359. The clerk's certificate of the costs should be annexed to the proof of the claims for costs. But a surety on a bond to dissolve an attachment who has paid the amount of a judgment for damages and costs against the insolvent, will not be allowed to prove the costs as a privileged claim. Hussey v. Crawford, 152 Mass. 596. Double Costs. When in a transitory action the writ abates by reason of the case having been brought in the wrong county, the defend- ant is entitled to double costs. Pub. Sts. c. 161, § 1. When upon a writ of error the judgment below is affirmed, the court may, in its discretion, award to the defendant additional interest and double costs. Pub. Sts. c. 187, § 7. The Supreme Judicial Court may award additional interest and double damages when an appeal or bill of exceptions appears to be frivolous, immaterial, or intended for delay. St. 1883, c. 223, § 15 ; Blackington v. Johnson, 126 Mass. 21. See other cases cited in Chapter IX. fost. Whenever double or treble costs are allowed, however, the sums paid as fees for witnesses, and for the costs of taking depositions and procuring evidence, and for copies, and all court dues, can be taxed once only. Pub. Sts. c. 198, § 14. Costs in Trustee Process. If a person summoned as trustee in the Supreme , Judicial or the Superior court appears and answers pursuant to Pub. 296 MASSACHUSETTS PRACTICE. Sts. c. 183, he is allowed his costs for travel and term fees, and such further sum for counsel fees and other necessary expenses as the court may deem reasonable. If charged as trustee, he may deduct his costs from the funds in his hands ; if discharged, he may tax costs against the plaintiff. Pub. Sts. c. 183, §§ 73-75. Or if being out of the Commonwealth, at the time of the service of the original writ upon him, he appears and answers at the first regular sitting after his return, he will be entitled to his costs and charges in the same manner as if he had appeared at the term when the action was entered. Ibid. § 76. In these courts a trustee recovering costs is not entitled to an attorney's fee, as such, the discretionary allowance for counsel fees and other necessary expenses being intended as a substitute therefor. Holbrook v. Waters, 19 Pick. 354 ; Haw- kins V. Graham, 128 Mass. 20. In the case last cited above, the sum of 115.00 was allowed as counsel fees in both courts. In Ball V. Gilhert, 12 Met. 397, the court allowed 13.00 for trustee's answer, besides his travel and attendance. A trustee who has appeared and answered will be entitled to costs upon the discontinuance of the action against the defendant or trustee, or upon any failure to maintain the case. Brown v. Seymour, 1 Pick. 32. Or upon the death of the principal defendant. Wilmarth v. Bichmond, 11 Cush. 463. If a person summoned as trustee is discharged for any cause, he is entitled to judgment and execution against the plaintiff for his costs and charges. Pub. Sts. c. 183, § 75. If the writ in trustee process describes two trustees indi- vidually and not as partners, but the officer's return shows that the trustees were summoned as copartners only, they are entitled to one bill of costs only, though they answer severally. Gerry v. Gerry, 10 Allen, 160. If a trustee files an answer later than the time prescribed, and without leave of court, this will not be an effectual ap- COSTS. 297 pearance so as to entitle him to costs. Phillips v. Flanders, 14 Gray, 453. If a person summoned as trustee, who dwells or has his usual place of business in the county in which the writ is returnable, is defaulted, and a writ of scire facias issues against him, he will be liable for all costs on the scire facias, to be paid . out of his own pocket, whether he is finally ad- judged a trustee or not, except in the cases hereafter specified. Pub. Sts. c. 183, § 81. The exceptions are: (1) when he has paid in full on execution he is not entitled to costs, nor liable for any (Ibid. § 82) ; and (2) if he was prevented from appearing by his absence from the Commonwealth, or by any other good cause which the court deems sufficient, he will not be liable for costs on the scire facias ; and the court may, if it appears reasonable, allow him his costs, to be retained or recovered in like manner as if he had appeared in the original suit. Upon scire facias against a trustee who appears and answers, whether he had been examined in the original suit or not, the court has authority, upon the whole matter, " to render such judgment as law and justice require." Pub. Sts. c. 183, § 53. Such judgment may extend not only to charging or dischar- ging the trustee, but also to the costs of the scire facias, — the latter being awarded according to the equities of the case. Thompson v. Lowell Machine Shop, 4 Cush. 431. In this case the defendant was adjudged to pay costs to the plaintiff, and to recover none himself. The amount allowed for counsel fees and expenses, and also the question whether any allowance shall be made therefor, being in the discretion of the court, cannot be revised on ap- peal to the Supreme Judicial Court, except upon rulings which appear by bill of exceptions to have been erroneous. Briggs v. Taunton, 110 Mass. 423 ; Hawkins v. Oraham, 128 Mass. 20. In actions before trial justices or district, police, or muni- cipal courts, persons summoned as trustees who appear and 298 MASSACHUSETTS PRACTICE. answer pursuant to the provisions of law are allowed costs as follows : For attorney's fee, fifty cents ; for answer in writing, twenty-five cents ; for travel and attendance, the same fees as are allowed to other parties ; for answers to interrogatories, such costs as the court may allow. Pub. Sts. c. 183, § 73 ; c. 198, § 31. But if a trial is 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. Pub. Sts. c. 183, § 73. It has been held that when the alleged trustee files his answer under oath at the first term, either denying or admit- ting his liability for a certain sum, and no further interrog- atories or allegations are filed to or against him, and no claimant of the funds intervenes, he is entitled to costs only for the term at which the answer was filed. Hoyt v. Sprague, 12 Pick. 407 ; Wasson v. Bowman, 117 Mass. 91 ; Hawkins v. Graham, 128 Mass. 20. When, however, a claimant intervenes, or an assignment is disclosed by the trustee's answer, the question whether the trustee shall be charged or discharged depends upon the va- lidity of the claimant's claim. The trustee has a direct inter- est in the determination of this question, and a right to be heard upon it, and will be entitled to costs while attending court for that purpose. Washburn v. Glarhson, 123 Mass. 319. In Ball V. Gilbert, 12 Met. 397, it was held that one who appeals from a judgment of a court charging him as trustee is entitled to no costs after such appeal. And where a de- fendant in trustee process improperly appeals from a judg- ment charging the trustee, the defendant having no legal interest in the question whether the trustee shall be charged or discharged, the trustee is not entitled to costs after the appeal. Kellogg v. Waite, 99 Mass. 501. It was said by the court in this case that the appeal by the defendant ought not to have been allowed, and did not vacate the order by which COSTS. 299 the trustee was charged ; and he might safely have paid the money in his hands on an execution against the defendant. In this case, as well as in Ball v. Gilbert, ubi supra, the result was not affected by the appeal. "When an adverse claimant is admitted as a party to a suit commenced by trustee process, the court may award costs between him and the attaching creditor and the supposed trustee, or any of them, as justice and equity may require, that is, such costs as the court may deem reasonable under all the circumstances.! Pub. Sts. c. 183, § 86 ; c. 198, § 31. The discretion of the court under § 86, cited above, was held to extend only so far as to decide whether the trustee's costs shall be paid by the plaintiff or by the claimant, or divided between them. Morrison v. McDermott, 6 Allen,, 122. See Wasson V. Bowman, 117 Mass. 91, 95. But now when a claim- ant holds a valid assignment as security for a debt, and the court proceeds at the request of the plaintiff to ascertain and determine the amount due upon the debt at the time of ser- vice of process upon the trustee, the claimant is entitled to judgment and execution for his costs, and any sum of money so found due to him. St. 1888, c. 345. If, during the pendency of the 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 reference to costs therein as justice may require. St. 1883, c. 62. See also as to interpleader of adverse claimants of the funds, St. 1886, c. 281. 1 In taxing costs for the claimant in the Municipal Court of the City of Boston, it is customary to allow $1.00 for the " statement," the usual allowance for attendance and travel, a term fee of $1.00 or 83.00, and an attorney's fee of $1.25 or $2.50, according to the circumstances of the par- ticular case, and witness fees. As against the claimant, the plaintifE is allowed attendance, travel, and witness fees. 300 MASSACHUSETTS PRACTICE. ITEMS OF COSTS ALLOWED, The statutes allow costs to the prevailing party in civil actions as follows : — Writ. For a blank writ of attachment and summons, or original summons, five cents (if issued by a trial justice, seventeen cents) ; for a writ of execution in any case, twenty-five cents ; for a writ of review, or other special writ, forty cents. Pub. Sts. c. 199, §§ 2, 4. Service. The officer's fees for serving an original summons or scire facias, either by reading it or leaving a copy, are fifty cents for each defendant upon whom service is made ; for service of a capias, or of an attachment with summons, or of a trustee process, fifty cents for each defendant or trustee upon whom it is served ; provided, however, that the fee for service of a trustee process returnable before a district, police, or munici- pal court, or trial justice, upon each trustee after the first, is only twenty-five cents, and the fee for each copy after the first is only ten cents. For special service of a writ either by attachment of personal property or by arrest, the fee is one dollar for each defendant upon whom such service is made. Pub. Sts. c. 199, § 6. For custody of personal property attached, a sum not exceed- ing two dollars for each day of twenty-four hours is allowed for the keeper, and a sum not exceeding fifty cents a day to the officer, for a period not longer than ten days. By written consent of parties or order of court further compensation may be allowed. Pub. Sts. c. 199, § 6. The allowance for travel in the service of all original writs is four cents a mile each way, to be computed from the most remote place of service to the court or place of return, " with such further travel as was necessary in serving it." But if COSTS. 301 the distance from place of ser7ice to place of return exceeds twenty, and does not exceed fifty miles, travel one way only is allowed for the excess above twenty miles, and if it exceeds fifty miles only one cent a mile one way is allowed for travel exceeding that distance. Pub. Sts. c. 199, § 6. If the person who delivers a process to an officer for service requests that he return it by mail or express, the ■compensa- tion for travel is limited to twenty miles, unless the officer actually and necessarily travels more than that distance to make the service exclusive of travel from the place of service to the place of return. Ibid. § 7. And when it is necessary for an officer in the service of civil process to use a horse and carriage for a distance exceeding two miles one way, he will be allowed therefor twelve cents a mile one way for a distance not exceeding twenty miles. Ibid. § 8. Fees for service must be indorsed on the writ, and no allowance is due for the use of horse and carriage unless the officer certifies that it was necessary, and that he actually used such conveyance for the distance set forth in his certificate.^ Ibid. § 28. Entry. In actions brought before trial justices, and district, police, and municipal courts, the entry fee is one dollar, which includes filing of papers, examining, allowing, and taxing the bill of costs for the plaintiff, entering up judgment and recording the same. Pub. Sts. c. 199, § 2. In the Supreme Judicial and Superior courts the entry fee is three dollars, which is declared to be "in lieu of entry, clerk's term fees, the fee for taxing costs and issuing sub- poena, injunction, and execution, or any order of notice or 1 " When an officer claims extra compensation for expenses in serving a precept or removing or keeping property, the same shall not be allowed unless he return with his precept a bill of particulars of the expenses, together with his affidavit that they were actually incurred, and that the charges are reasonable.'' Rule XXXVIII. Sup. Ct. ; Rule XXIX. Mun. Ct., Boston. 302 MASSACHUSETTS PKACTICE. other mesne, final, or interlocutory order, rule, decree, or process whatsoever therein authorized by law, except the fee for alias or renewed executions. St. 1891, c. 87. Tertn Fee. In the Supreme Judicial and Superior court, a term fee of five dollars is allowed for each sitting with the limitation here- after mentioned ; but the plaintiff will be allowed only one term fee if the defendant is defaulted without having ap- peared. Pub. Stsi c. 198, § 28. If however the defendant is defaulted on the main issue and afterwards appears and is heard on the assessment of damages, the plaintiff is not re- stricted to one term fee. Galligan v. Clark, 119 Mass. 83. Another limitation to the recovery of term fees was introduced by St. 1882, c. 264, in accordance with which three term fees only will be allowed in any action, unless by order of the court ; but when the action, or any question therein, is car- ried to the full bench of the Supreme Judicial Court, two additional term fees may be allowed. St. 1882, c. 264. The effect of this statute is this : If no question is carried to the full bench of the Supreme Judicial Court, the clerk, in taxing costs, will allow three term fees only, unless the court in its discretion orders more to be taxed. If a question has been carried to the full bench, the clerk is to allow two more term fees. And in either event, whether a question has been taken to the full bench or not, the court may in its dis- cretion allow and order to be taxed such number of term fees in addition as may be deemed just. Leonard v. O'Beilly, 137 Mass. 138. In actions before trial justices, the term fee is one dollar ; and before district, police, and municipal courts, three dollars when an appearance is entered for the defendant, and when there is no appearance, one dollar. Pub. Sts. c. 198, § 30. But the term fee allowed the plaintiff in trustee process re- turnable before these tribunals is seventy-five cents when COSTS. 303 there is no appearance, and when there is an appearance, one dollar. Ibid. § 31. Attendance. No costs are allowed for attendance in the Supreme Judicial and Superior courts. Before trial justices, and district, police, or municipal courts, a fee of thirty-three cents for each day's actual attendance by the party or his attorney is allowed, but not for more than three days when the defendant is de- faulted without having appeared ; and no fee for attendance is allowed for any day after that on which the action is finally disposed of for the term.i Pub. Sts. c. 198, §§ 80, 31. Travel. The party recovering costs is entitled to thirty-three cents for every ten miles' travel.^ No allowance is made for travel to or from the clerk's office, to take out or to carry thereto any writ or process, 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 an allow- ance may be made, in the discretion of the court, according to the distance actually travelled. Pub. Sts. c. 198, §§ 28, 30, 81. Corporations may take costs for travel, to be computed from the place where the corporation is situated, if it is in its nature local ; otherwise, from the place where its business is chiefly or commonly transacted. Ibid. § 33. Where a defendant died and his administrator entered an appearance in the case, he was allowed for travel and attend- ^ It has been decided that, when a defendant is summoned as trustee of the plaintiff, the first action should be continued to await the result of the trustee process, and that the plaintiff is not entitled to travel and attendance during such continuance. Winthrop v. Carlton, 8 Mass. 456. " It is believed that in practice, thirty-three cents is the smallest sum ever allowed for travel. 304 MASSACHUSETTS PRACTICE. ance for the two terms preceding his appearance. Bacon v. Crandon, 15 Pick. 79. See Harle v. ffall, 22 Pick. 102. Attorney's Fee. Two dollars and fifty cents are allowed for the attorney's fee in the Supreme Judicial or the Superior court when an issue in law or fact is joined ; otherwise, one dollar and twenty-five cents. Pub. Sts. c. 198, § 28. In the district, police, and municipal courts, and before trial justices, two dollars and fifty cents are allowed for attorney's fee when there is an ap- pearance ; otherwise, one dollar and twenty-five cents. Ibid. § 30. But in trustee process in the inferior courts, this fee, when taxed for the plaintiff or defendant, is one dollar and fifty cents ; and an attorney's fee of fifty cents is allowed to the trustee. Ibid. § 31. The allowance for witness fees, in the Supreme Judicial and Superior courts, is one dollar and fifty cents a day for each witness ; before a trial justice, or police, municipal, or district court, referee, or arbitrator, fifty cents a day. Pub. Sts. c. 199, § 14. The allowance for travel in all cases is five cents per mile out and home. In practice, each witness is considered to live at least one mile from the place of hold ■ ing court. Each witness is required to certify in writing the amount of his travel and attendance, and nothing can legally be allowed on these items without such certificate. Ibid. A witness from another State is allowed only for travel from the line of the State by the ordinary travelled route from his residence to the place of holding the court and back to the State line. White v. Judd, 1 Met. 293 ; Melvin v. Whiting, 13 Pick. 184. Allowance will be made for one trip only out and home, for each sitting, unless Sundays intervene between the days of the witnesses' attendance, in which case an additional COSTS. 305 " travel " will be allowed for each Sunday, the theory being that the witness remains in the town where the court is holden during the week, returning home only for the Sundays. In general, a party will not summon more witnesses than he thinks will be necessary. In order to tax the fees of wit- nesses for travel and attendance, it must appear that their attendance was reasonably and in good faith procured by the party making the taxation, and that they were paid or actually attended, so as to be entitled to their fees in the case. " The certificates required by the statute are competent prima facie evidence for the allowance of the amount certified, but are not conclusive. The court must determine whether the cer- tificates are true, or fraudulent or mistaken, if their correct- ness is disputed ; and may decide upon the reasonableness of the conduct of the party as to the number of witnesses, and the length of their attendance, in order to secure good faith and prevent oppression or reckless expense." Miller v. Zi/on, 6 Allen, 514 ; Barber v. Parsons, 145 Mass. 203. It is a question of fact for the court to determine whether the certificates were signed by the witnesses personally or by agents duly authorized, and such determination will not be revised by the Supreme Judicial Court. Young v. Makepeace, 108 Mass. 233. If witnesses attend at the request of the prevailing party act- ing in good faith, the fact that they were not formerly sum- moned and were not examined, will not prevent the allowance of their fees in the bill of costs. Farmer v. Storer, 11 Pick. 241 ; Barber v. Parsons, ubi supra. Where a plaintiff brought several actions of a like nature for similar causes of action, it was held that the fees for travel and attendance of witnesses who were summoned, and attended and were paid, in the several cases, might be taxed in each case, the question of their actual attendance being determined as a question of fact by the clerk in the first 20 306 MASSACHUSETTS PRACTICE. instance, subject to an appeal to the court. Day v. Berkshire Woollen Co., 1 Gray, 420. But in a later case it was adjudged that if the witnesses were summoned in one case only, their travel should be taxed in that case alone, although they were requested to attend in all the eases. And if one case is tried before the trial of another is begun, the attendance should not be taxed in the former case after the trial is finished, nor ought it to be taxed in the later cases for a length of time before the trial which under all the circumstances should be thought unreasonable. Barher v. Parsons, 145 Mass. 203. As to discretionary power of the court in such cases to reduce witness fees, see St. 1892, c. 231. Subpoena and Service. The fee for a subpoena, whether issued, as ordinarily, by a justice of the peace, or by the clerk of the court, is ten cents. Pub. Sts. c. 199, §§ 1, 4. Officer's fees for summoning witr nesses are ten cents for each, witness, with the usual allowance for travel. Ibid. § 6. When subpoenas are served in a civil case by a disinterested person not an officer, it is within the discretion of the court to tax in the costs a reasonable compensation for the service, not exceeding what would be allowed to an officer for the same service. Young, v. Makepeace, 108 Mass. 233 ; Pub. Sts. 0. 169, § 2. Issue. In actions before a trial justice one dollar is allowed for issue. Pub. Sts. c. 199, § 2. Taxing'. In the inferior courts, a fee of twenty-five cents is allowed for taxing defendant's costs, except that in trustee process a fee of ten cents is allowed for taxing defendant's, trustee's, or claimant's costs. Pub. Sts. c. 199, § 2. COSTS. 307 Disbursements. In addition to the specific items of costs which are herein- before mentioned, a party recovering costs is entitled to tax " the amount of other disbursements allowed by law." Pub. Sts. c. 198, § 28. The fee allowed by statute for taking a deposition is fifty cents, with twelve cents a page for writing the deposition and caption. Pub. Sts. c. 199, § 1. In practice, however, and by universal consent, such sum is taxed as may appear to the court fair and reasonable. The deponent is to be allowed fifty cents per day for attendance, and five cents per mile for travel out and home. Ibid. § 14. Commissioners appointed by the governor of the Common- wealth to take depositions in other States for use in Massachu- setts are allowed the following fees ; for each written page of the deposition, fifty cents ; for the oath, one dollar ; for direct- ing, sealing up, and authenticating the deposition, one dollar ; and for services not specified in the statute the same fees as are allowed justices of the peace here for like services ; but tlie court to which the deposition is returnable' may order fur- ther allowance if it appears proper to do so. Ibid. § 22. If a deposition is taken and used at any stage of a cause by the prevailing party, it may be taxed in the bill of costs ; other- wise, if he makes no use of it.^ Lamh v. Stone, 11 Pick. 527. Copies made in the Superior Court of bills of exceptions or other papers necessary in cases carried to the Supreme Judi- cial Court are to be taxed in favor of the party paying for them, if he finally prevails. Gardner v. Gardner, 2 Gray, 434. 1 On an appeal from taxation of costs a& made by the clerk of the Superior Court, in which taxation the costs of taking a deposition to perpetuate testimony under Pub. Sts. c. 169, §§ 45 et seq., were allowed to the prevailing party, the deposition having been used in the trial of the case, Colburn, J., on appeal, held that such costs were improperly taxed. Sterry v. Foster, Norfolk (1881). > 308 MASSACHUSETTS PRACTICE. These copies are paid for when they are taken from the Supe- rior Court for the purpose of entering the case in the court above, and a record is kept of the sums so paid. In any proceeding at law or in equity the party entitled to costs is allowed such sum as the court may deem reasonable, — not exceeding ten dollars, — for expenses actually incurred in printing copies of briefs required for the argument of the case in the Supreme Judicial Court. Pub. Sts. c. 198, § 29. In suits on bonds to dissolve attachments the plaintiff may tax the cost of the certified copy of the bond required to be left on file in the clerk's office by him if he removes the origi- nal. Pub. Sts. c. 161, § 125. Registry copies of deeds used in evidence by the prevailing party may be taxed according to the statute fees, i. e., twenty cents per page, — a page, when used as a measure of computa- tion, meaning two hundred and twenty-four words. See Pub. Sts. c. 199, § 20. Suffolk v. Mill Fond Wharf, 5 Pick. 540. By usage, a reasonable sum may also be taxed for plans, drawings, &c., actually used in evidence by the prevailing party. And " courts of law have power to allow the reason- able expenses of surveys and views in proper cases." Stock- bridge Iron Co. V. Cone Iron Works, 102 Mass. 80, 89. In all cases where taxation is desired of items not appearing of record, a clear memorandum of the same should be filed with the clerk, with vouchers, such as the bills for printing briefs, &c., and the copies of deeds, or other papers used, with the expense of making the same certified thereon. In all 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 be taxed than is allowed for similar charges in suits at common law. Pub. Sts. c. 198, § 17. And nothing contained in this chapter affects the power of arbitrators or referees to make such award concerning costs as justice and equity may require ; nor the power of any court to require costs to be paid by either party as the condition of COSTS. 309 an amendment, continuance, or other order passed at his mo- tion, or to withhold and refuse costs on like occasions. Ibid. § 22. Jones v. Garter, 8 Allen, 431. If the award is silent on the subject of costs, the prevailing party is entitled to them. Woolson V. Boston & Worcester E. E. Oorp'n, 103 Mass. 580 ; Warren v. Waldron, 108 Mass. 232. When a continuance is ordered, upon condition that the party moving for it shall pay the costs incurred in procuring the attendance of witnesses, the costs thus paid will not be included in the bill of costs of the party receiving them, if he finally prevails. Kule XIV. Sup. Jud. Ct., but see Rule XV. ; Eule XXXVI. Sup. Ct., but see Rule XXXVII. When the court allows an answer to be filed, or an amend- ment to be made, upon terms which call for the payment of money, the order is interlocutory and may be enforced by the court by writ or process under Pub. Sts. "c. 153, § 3 ; but it cannot be made the ground of a separate action. Knight v. Hiirley, 155 Mass. 486. BILLS OP COSTS. Supreme Judicial and Superior Courts. The following is a bill of costs, indicating the manner of taxation in the Supreme Judicial and Superior courts, accord- ing to the practice established by the statute provisions already cited : — No. 525. A. B. V. C. D. Plaintiff's Costs — Four Terms. Writ $1.80^ Service 2.08 Entry, &c 3.00 Travel, 4 terms 1.32 ^ The above item of writ is made up as follows : blank writ, five cents ; declaration, fifty cents; attorney's fee, when no issue is joined, one dollar and twenty-five cents. 310 MASSACHUSETTS PRACTICE. Term fees, 3 tenns 15.00 * Issue 1.25'' Witaess, 1 day, 2 miles 1.60 ' Subpoena 10 Service 58 $26.73 Other items may be for Rule, Commission, Depositions, Copies, or Brief. The taxation of defendant's costs is the same as the above, omitting the items of writ, service, entry, and clerk's fee. In the Inferior Courts. The following is a bill of costs in the district, police, and municipal courts, and before trial justices : — 1883. A, "W. V, C. H. No. 150. Plaintiff's Costs. Writ and declaration $1,00 Service 58 Entry 1.00 Attorney's fee 2.60* Travel, 3 tei-ms 99 Attendance, 3 days • 99 Term fee 3.00 « 1 Unless by order of the court the party is allowed a term fee for Mie fourth term. See Term Fee, ante. s The item of issue is taxed only when an issue of fact or law has been joined. Its amount, added to the one dollar and twenty-five cents em- braced in the item of writ, makes up the two dollars and fifty cents allowed by statute to the attorney when issue is joined. » This item may be divided as follows : Witnesses before Auditor ; Witnesses in Court. * When there is no appearance for the defendant, one dollar and twenty-fiye cents. In trustee process the attorney's fee is one dollar and fifty cents. 8 Before trial justices, or wh^n there is no appearance for the defepd- ant, one dollar. In trustee process the plaintifi's terra fee, when there is an appearance, is one dollar ; when no appearance, seventy-five cents. COSTS. 311 Witness, 2 days, 4 miles 1.20 Subpoena 10 Service, 4 miles' travel 26 811.62 The defendant's costs are the same as the above, omitting writ, service, and entry, and adding twenty-five cents (in trustee process, ten cents) for taxing costs. The items of a trustee's bill of costs in district, police, and municipal courts and before trial justices are for travel, attendance, attorney's fee, and answer. The clerk will, as a matter of course, tax fifty cents as an attorney's fee, and twenty-five cents for the answer, adding also ten cents for taxing. 312 MASSACHUSETTS PKACTICE. CHAPTER VIII. FINAL JUDGMENT AND EXECUTION. Entry of Judgment — In General. Priob to the enactment of the Statute of 1885, hereafter referred to, every judgment was entered as of the last day of the term in which it was rendered, unless the court made an express order for its entry on some other day, in which case the actual date was required to be noted on the docket. Pub. Sts. c. 171, § 1. By St. 1885, c. 384, it is provided that "there shall no longer be any terms," and (§ 12) that " the courts respectively may make general rules authorizing or directing in such manner as and subject to such provisions as they may think proper, the entry of judgment by the clerk, without any further order, in all or any of the cases in which judgment may according to the present practice be entered under a general order or at the end of a term as of course." In pursuance of the authority thus given, Eule XXVII. of the Superior Court was adopted, providing that, " on the first Monday of every month judgment may be entered, in all actions ripe for judgment, under a general order of the court ; and the court, or any justice, may at other times order judg- ment to be. entered in any action." See also to the same effect. Rule IX. of the Supreme Judicial Court as amended Jan. 12, 1886. Judgment Nunc jpro Tunc. The statute cited above (§ 13) requires that every judgment, order, or decree shall bear the date of the day of the month and the year when it is entered; but the court may in its FINAL JUDGMENT AND EXECUTION. 313 discretion, when justice requires it, enter a judgment, order, or decree, as of a previous day. As a matter of practice, at common law, as well as under the statutes, judgment will be entered, upon motion therefor, as of a preceding day, whenever an action has been continued or postponed, after verdict, on motion of a dissatisfied party, for the purpose of obtaining some new disposition thereof ; or when an action which would fail by the death of any party before judgment is continued for argument or advisement, and one of the parties dies during the continuance. Pub. Sts. c. 153, § 20 ; c. 171, § 7 ; Currier v. Lowell, 16 Pick. 170 ; Springfield V. Worcester, 2 Cush. 52; Kelley v. Riley, 106 Mass. 339 ; Whiting v. Whiting, 114 Mass. 492 ; Tapley v. Goodsell, 122 Mass. 176 ; Cowley v. McLaughlin, 137 Mass. 221. Before a judgment nunc pro tunc is ordered, a hearing will ordinarily be given to parties liable as sureties on a bond to dissolve an attachment; but when the entry is once made, the judgment has the same operation, for all purposes neces- sary to make it effectual, as if it had been actually entered at the earlier date.^ Tapley v. Goodsell, 122 Mass. 176, 184. " Whenever any reservation as to costs is made, it shall not operate to delay judgment, but it shall be the duty of the party in whose favor the same is made to have the amount thereof fixed before the case is ready for final judgment, or he shall lose all benefit thereof." Rule XIII. Superior Court. When an appeal is taken from the taxation of costs by the clerk, the judgment will be considered as rendered on the day 1 Where judgment was by mistake entered against a defendant after his death, upon a default suffered by him during his lifetime, it was held that, in the absence of any other objection, the judgment must be treated as valid. The court says that, if the death had been suggested, the judg- ment might have been rendered as of a former term, " or the judgment actually entered might, on motion of the plaintiff, have been amended so as to stand as a judgment nunc pro tunc, or have been vacated and the administratrix summoned in to defend the action." Reid v. Holmes, 127 Mass. 326. 314 MASSACHUSETTS PKACTICE. when costs are finally taxed and allowed, except when the appeal is claimed by the party who is to pay the costs, and the other party takes out execution after giving a bond to repay such portion of the costs as may be disallowed on the appeal. Pub. Sts. c. 198, §§ 25, 26. Judgment upon Default. At common law, no judgment could be rendered against a party without his appearance in court to answer to the suit, and if he failed to appear upon the first summons, further process was necessary to compel his attendance. James v. Townsend, 104 Mass. 367, 372. But, by our statutes, when a person duly served with process fails to appear and answer thereto, his default may be recorded, and the charge against him in the declaration taken to be true, and judgment rendered accordingly. In the Supreme Judicial Court and the Superior Court, the plaintiff may have judgment entered as of course by the clerk at any time after four days have elapsed after the default has been entered, without any further order. St. 1885, c. 384, § 11 ; Pub. Sts. c. 171, § 1 ; c. 167, § 45.^ In the tribunals of inferior jurisdiction, judgment upon a default may be entered at once, unless delay is required by a rule of the court. Pub. Sts. c. 167, § 45 ; St. 1893, c. 396, § 19. It should be noted that judgment may be entered as above stated only against defendants who have been duly served with process. In all cases when the defendant is out of the Commonwealth, or his place of residence is not known to the officer, and no personal service is made on him, a valid judg- ment cannot be entered upon default until after further notice' given, as provided for " absent defendants." Pub. Sts. c. 161, 1 A defendant in a bastardy case was defaulted for failing to appear when the case was called for trial, and judgment was entered on the same day. The court said that the provisions of Pub. Sts. c. 171, § 1, did not apply to the proceedings, and that the judgment was not entered irregu- larly. Keith V. McCaffrey, 145 Mass. 18. FINAL JUDGMENT AND EXECUTION. 315 § 34 ; c. 164, § 7, as amended by St. 1884, c. 384, § 8 ; Downs V. Fuller, 2 Met. 185 ; Leonard v. Bryant, 2 Cush. 82 ; Pack- ard v. Matthews, 9 Gray, 311. See ante, p. 142. When the defendant has been defaulted at any stage of the proceedings, it is the duty of the court to award such judg- ment 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 must be so assessed ; and in all cases in which damages are demanded, the court may refer the assessment to a jury, although it is not moved for by either party. Pub. Sts. c. 171, §§ 2, 3. Cases so referred take their regular place on the trial list, and are disposed of in their order. When the defendant has been defaulted in an action upon a promissory note or other contract, where the amount due appears to be undisputed, the debt or damages may be ascer- tained by the clerk under a general order of the court or by a special reference of the case to him, and in either case the judgment is entered in the same form as if it had been awarded by the court on an assessment or computation made by the court. Pub, Sts. c. 171, § 4, In Actions on Bonds, &c. When the plaintiff prevails in an action for a breach of the condition of a bond, or to recover a penalty for the non-per- formance of a covenant, contract, or agreement, judgment will be entered for the penal sum, but execution will be awarded by the court for so much only of the penal sum as is then due and payable in equity and good conscience for the breach of the condition or other non-performance of the contract. The sum may be, and when the amount is fixed and ascertainable from the pleadings generally is, determined by the court ; but it may be assessed by a jury if the court thinks proper, or if either party moves for such an assessment. Pub. Sts. c. 171, §§ 9, 10. 316 MASSACHUSETTS PEACTICE. The rule of the Superior Court requires that " in actions on bonds, and on all other contracts, when damages are to be assessed by the court or by the clerk, the plaintiff shall file an account or statement in writing of the particulars of his demand, unless when the same are sufficiently apparent from the declaration, or from the bond, note, or other instrument declared on, or from a bill of particulars filed." Rule XXVI. Sup. Ct. In the Municipal Court of the City of Boston, when damages are to be assessed, the plaintiff is required to " file a statement of his claim, unless the same appears on the record or papers filed in the case." Rule XI. The court may appoint an auditor or assessor with instruc- tions to hear the parties and report upon the amount of dam- ages. This is to assist the court and enable it the better to determine for what sum execution shall issue. Fisk t. Gray, 100 Mass. 191. In whatever manner it may be pursued, the inquiry as to the amount for which execution shall be awarded is an assess- ment of damages according to equitable principles. The plain- tiff is required to show how much of the penal sum is due and payable, and payments may be proved by the defendant, al- though not set up in the answer to the declaration. At this stage of the case no pleadings are required on either side, nor can any defect or admission in the previous pleadings deprive either party of the right to a complete adjustment of all the claims secured by the bond. Austin v. Moore, 7 Met. 116 ; Hatch v. Attleborough, 97 Mass. 533 ; Leonard v. Whitney, 109 Mass. 265 ; Merrill v. Mclntire, 13 Gray, 157. It is the duty of the prevailing party 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 no execution will issue until this has been done.i Rule LX. Sup. Ct. ; Rule XLIV. Sup. Jud. Ct. ; 1 Judgment may be rendered for the amount of a lost note upon the filing of a sufficient bond of indemnity. Tucker v. Tucker, 119 Mass. 79 ; FINAL JUDGMENT AND EXECUTION. 317 Rule XXVIII. Mun. Ct. ; Rule XX. Dist. and Police Cts. See Pease v. Morris, 138 Mass. 72, 73, and Chap. VI., ante. When the debt sued for is payable in gold, a judgment should be rendered for the amount due payable in gold coin, and not for the value of the gold in currency at the time when the debt was due. Warren v. Franklin Ins. Co., 104 Mass. 518 ; Currier v. Davis, 111 Mass. 480. In Actions against two or more Defendants. In actions founded upon a contract express or implied, where there are two or more defendants, the plaintiff is entitled to judgment against those who 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." Judgment will be entered against those defendants who are defaulted or found liable for debt or dam- ages, with costs to the time of the default, and against those who defend for all costs accruing after the default ; and sep- arate executions will be issued on such judgment. Pub. Sts. c. 171, §§ 5, 6. " When actions shall be brought against parties severally liable upon written contracts, and some of the defendants shall be defaulted and others appear, the clerk may enter up judgment and issue execution against the parties defaulted, as if they had been the sole defendants ; and the case shall go forward against the parties appearing, as in other contested cases." Rule XXVII. Sup. Ct. When it is found that some of the defendants are not liable, it is not necessary to amend the declaration in order to pro- ceed to judgment against the others. Wiggin v. Lewis, 12 Cush. 486. But if it appears by the verdict that a count on a joint contract of all the defendants is joined with a count Cohh V. Tirrell, 141 Mass. 459; Schmidt v. People's N. Bk., 153 Mass. 550. 318 MASSACHUSETTS PKACTICE. on a several contract of one of them, judgment cannot be entered until an amendment is allowed striking out one of the counts. Leonard v. Bobbins, 13 Allen, 217. In an action against two on a joint promissory note, the bank- ruptcy of one defendant having been suggested, the plaintiff may discontinue as to that defendant, prove the note as a claim against the estate in bankruptcy, and then proceed to judgment against the other defendant. Goodnow v. Hill, 125 Mass. 587 ; Hathaway v. Crocker, 7 Met. 262. Interest. When judgment is made up upon an award of county com- missioners, a committee, or referees, or on the report of an auditor or master in chancery, or on a verdict of a jury, or the finding of a judge, interest is computed upon the amount of the award, report, &c., from the time when it is made to the time of making up judgment. And every judgment for the payment of money bears interest from its date. Pub. Sts. c. 171, § 8 ; Taylor v. BoUnson, 2 Allen, 562. A distinction is made between cases in which interest is recovered by way of damages for detention, and those cases in which interest is due under the terms of the contract. " As a general rule, in all cases in which a debtor is in default for not paying money in pursuance of his contract, he is liable for interest thereon from the day of his default, and when a demand is necessary to put the debtor in fault, interest is to be given only from the demand. Where interest is not stipu- lated for as part of the contract, it is given by way of damages for the detention of the money." Bank of Brighton v. Smith, 12 Allen, 248, 252. When a judgment has been obtained in another State for the penalty of a bond, the plaintiff in an action brought in this State upon the foreign judgment can recover only the amount for which execution has been awarded in the original suit with interest at six per cent. Battey v. Holbrook, 11 Gray, FINAL JUDGMENT AND EXECUTION. 319 212 ; although a different rate of interest is embodied in the judgment. Clark v. Child, 136 Mass. 344. A judgment against a surety on a bond should include interest from the time of his default, although the amount of the judgment be thereby made to exceed the penalty of the obligation. The execution, however, cannot in any event be made to exceed the judgment. Bank of Brighton v. Smith, 12 Allen, 243 ; Leighton v. Brown, 98 Mass. 516. In case of Insolvency. An attachment on mesne process made more than four months before the first publication of notice in insolvency proceedings creates a lien that is not affected by such pro- ceedings or by the statutes relating to insolvency, and the court in which the action is pending may render a special judgment, to be enforced against the attached property only. Pub. Sts. c. 157, § 46 ; Davenport v. Tilton, 10 Met. 820 ; Bates V. Tappan, 99 Mass. 376 ; Bay v. Wight, 119 Mass. 426, and cases cited ; Bosworth v. Pomeroy, 112 Mass. 293 ; Stockwell V. Silloway, 113 Mass. 382 ; Oay v. Baymond, 140 Mass. 69. Most of the cases cited above were decided under the bank- rupt laws of the United States, but the same principle is established under our statutes relating to insolvency. In Gay v. Baymond, libi supra, the court says : " Insolvency proceedings commenced more than four months after an attachment do not dissolve it; but they may result in a discharge of the defendant from the debt, which will pre- vent the plaintiff from recovering judgment against the defendant, and so obtaining an execution upon which the property may be taken. To prevent this result, the special judgment against the property attached was devised, so that, when a defendant pleaded a discharge in insolvency and showed a defence to the suit so that no judgment conld be had against him, the plaintiff was enabled to enforce his lien 320 MASSACHUSETTS PRACTICE. under the form of a judgment against the defendant enforce- able only against the property attached. ... It is a judgment for the amount of the debt, to be executed only in preserving and enforcing the lien on the property." Under the last bankrupt law, U. S. St. 1867, c. 176, the special judgment could not properly be entered until the question of the debtor's discharge had been determined, if there was no unreasonable delay on his part in endeavoring to obtain a discharge. Bay v. Wight, 119 Mass. 426. But under the insolvency laws of this State, the special judgment may be entered while the question of discharge is pending on a suggestion of insolvency, and on motion of either party. Gay V. Bai/mond, 140 Mass. 69. Formerly when, upon a suggestion of insolvency, the plain- tiff took a special judgment to be executed only against tlie attached property, the judgment was treated as a final dis- position of the case, and no further process could be issued, or other judgment entered against the defendant. Gay v. Baymond, ubi supra. But in the same year in which the last cited case was decided, the subject was acted upon by the legislature and the power of the court enlarged as follows : — . " When any property of a debtor has, more than four months prior to the commencement of proceedings in bank- ruptcy, or, in case of voluntary proceedings in insolvency, more than four months prior to the time of the first publica- tion of the notice of the issuing of the warrant, or in case of involuntary proceedings, more than four months prior to the time of the first publication of the notice of the filing of the petition, been attached, and when it shall be made to appear, by default or otherwise, that the plaintiff is entitled to judg- ment, except for such bankruptcy or insolvency of the debtor, the court may at any time upon motion enter a special judg- ment for the plaintiff, for the amount of his debt or damages and costs, to be enforced in the first instance only against the FINAL JUDGMENT AND EXECUTION. 321 property so attached ; and if such property shall be insuffi- cient to satisfy the judgment in full, the court may thereafter, if the debtor's discharge shall be refused, or if he shall un- reasonably delay to prosecute said proceedings to a discharge, order an alias or other successive execution to be issued upon such judgment for the amount thereof remaining unsatisfied, and the creditor may in case of such refusal or delay have a scire facias or action as provided in section seventeen of chap- ter one hundred and seventy-one of the Public Statutes." St. 1885, c. 59. .If an attachment made as above provided has been dis- solved by giving bond, the court may at any time upon motion enter a special judgment for the plaintiff, " to enable him to proceed against the sureties on such bond ; " and such special judgment is declared sufficient, within the meaning of Pub. Sts. c. 161, to enable the plaintiff to maintain an action against the sureties. Pub. Sts. c. 171, § 23. A similar judgment may be entered with the same effect when a defendant in a civil action who petitions for a review thereof is adjudged a bankrupt, or against whose estate a warrant in insolvency is issued before or after having given the security required in such cases ; provided, the attacliment in the original action was not made within the four nionths. £ush V. Ilovey, 124 Mass. 217. The foregoing provisions as to special judgment to enable a plaintiff to hold sureties on a bond, are extended to cases of composition in insolvency. St. 1888, c. 405. The purpose and effect of the statute last cited is to deprive the defendant or his assignee of the power to defeat an at- tachment of his own motion, by giving an ordinary bond to dissolve the attachment. Then if the debtor obtained his discharge and this was pleaded, no final judgment could be rendered against him, and no special judgment could be entered to enable the plaintiff to hold the sureties. Fickett v. Durham, 119 Mass. 159. And the law authorizing ' such 21 322 MASSACHUSETTS PRACTICE. special judgment in cases of bankruptcy was adjudged not unconstitutional or inconsistent with the law of the United States. Barnstable Sav. Bank v. Higgins, 124 Mass. 115. In Cases of Set-off. Where a set-off is pleaded and the amount proved to be due on the set-off is equal to the amount due to tlie 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 takes judgment for the balance. Pub. Sts. c. 168, § 19. If it appears that there is a balance due from the plaintiff to the defendant, judgment is entered in that amount for the plaintiff with his costs ; but no such judgment will be entered against the plaintiff when the demand for which the action is brought was assigned before the commencement of the suit, nor for a balance due from any other person than the plain- tiff. Ibid. § 20. It seems that the amount that may be re- covered on the set-off is not limited by the ad damnum in the writ, but by the jurisdiction of the court only. Galligan v. Fannan, 9 Allen, 192, 193. As to judgments against non-residents, see McCormick v. Fiske, 138 Mass. 379; Miot v. McCormick, 144 Mass. 10; Needham v. Thayer, 147 Mass. 536. EXECUTION. A judgment in an action at law is enfof ced by writ of exe- cution. The issuing of execution is not an exercise of judicial power, but a ministerial act to be performed by the clerk of the court, or if there is no clerk, by the justice. Fisher v. Deans, 107 Mass. 118, 119 ; Costley v. Commonwealth, 118 Mass. 1, 35 ; White v. Morse, 139 Mass. 162. No execution can issue within twenty-four hours after the entry of judgment, and Sundays are to be excluded in the FINAL JUDGMENT AND EXE0T3TI0N. 323 computation. Penniman v. Cole, 8 Met. 496 ; Pub. Sts. c. 171, §15. The object of the provision for delay is said to be " to give a judgment debtor opportunity to examine into the correct- ness of the judgment, the accuracy of the calculation, where a computation is to be made, and to ascertain if the costs are properly taxed." Penniman v. Cole, ubi supra. Nor can an original execution be issued after the expiration of one year from the time when the plaintiff becomes entitled to take out the same. Pub. Sts. c. 171, § 16. The death of one of the plaintiffs, after judgment, does not necessarily call for any change of parties, and the execution may issue in the name of all the judgment creditors, or the death may be suggested on the record and the execution issued in favor of the survivors. Cushman v. Carpenter, 8 Cush. 388. The forms of execution are established by law and the usage and practice of the courts.^ Alterations in the forms may be made or allowed, from time to time, by the courts, when necessary to adapt them to changes in the law, or for other sufficient reasons, but such alterations are subject to the final control of the Supreme Judicial Court. Pub. Sts. c. 171, §§ 20, 21 ; Cooke v. Gihhs, 3 Mass. 192, 196. The following is the ordinary form of execution issuing from the Superior Court in cases where the debt or damage exceeds twenty dollars : — ^ At common law there were several forms of execution: 3, capias ad satisfaciendum, a fieri facias, a levari facias, an elegit, an extendi facias, &c. The creditor might take out such one of these as he chose, the writ being so framed as to direct only one mode of service by the oflScer. Upon the return of the original execution unsatisfied, the creditor might have a new execution of another form, or an alias or pluries of the former execution, as he should elect. In Massachusetts the form in use includes all the different English writs of execution which we have adopted. Dodge v. Doane, 3 Cush. 460, 462. 324 MASSACHUSETTS PRACTICE. Commonwealth of Massachusetts. Suffolk, ss. To the Sheriffs of our several counties or their . Deputies. Greeting. Whereas, A. B., of Boston, within our County ot Suffolk, by the consideration of our Justices of our Superior Court, holden at Boston, for and within our County of Suffolk, aforesaid, on the twentieth day of March, a. d. 1893, recovered judgment against C. D. of said Boston, for the sum of Two Hundred dollars, and ten cents, damage, and thirteen dollars and twenty cents, cost of suit, [*] as to us appears of record, whereof execution remains to be done ; we command you, therefore, that of the goods, chat- tels, or lands of the said judgment debtor, within your precinct, you cause to be paid and satisfied unto the said judgment creditor, at the value thereof in money, the aforesaid sums, being two hun- dred and thirteen dollars and thirty cents in the whole, with inter- est thereon from said day of the rendition of said judgment, and with twenty-five cents more for this writ, and thereof also to satisfy yourself for your own fees ; and for want of goods, chat- tels, or lands of the said judgment debtor to be by him shown unto you, or found within your precinct, to the acceptance of the said judgment creditor, to satisfy the sums aforesaid, with interest as aforesaid, we command you to take the body of the said judgment debtor, and him commit unto our jail in Boston, in our County of Suffolk, or any jail in your precinct, aforesaid, and detain in your custody within our said jail, until he pay the full sums above mentioned, with your fees, or that he be dis- charged by the said judgment creditor, or otherwise, by order of law. Hereof fail not, and make return of this writ, with your doings therein, into the clerk's office of our said Superior Court, at Boston, within our County of Suffolk, aforesaid, in sixty days after the date hereof. Witness, A. M., Esquire, at Boston, the twenty-fourth day of March, in the year of our Lord one thousand eight hundred and ninety-three. J. A. W., Clerk. Executions against executors or administrators for debts due from the deceased can be made to run only against the goods FINAL JUDGMENT AND EXECUTION. 325 and estate of the deceased in their hands, and not against their bodies, goods, or estate. But when an executor or adminis- trator who has appealed and taken upon himself the pros- ecution or defence becomes liable to an- execution for costs only, it may run against his body, goods, and estate, as for his own debt. Pub. Sts. c. 166, §§5, 7 ; Gibhs v. Taylor, 143 Mass. 187. When the judgment is for debt or damages and costs, an execution issues for the debt or damages 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. Pub. Sts. c. 166, § 8. Green- wood V. McG-ilvray, 120 Mass. 516. And this holds good notwithstanding the apparent inconsistency of Pub. Sts. c. 172, § 55 ; Looh v. Luce, 136 Mass. 249. If the suit was commenced by trustee process, and the trustee has been charged, the execution follows the above form as far as the [*], and then proceeds as follows : — And whereas, by the consideration of the same court, judgment was likewise awarded for the same sums against the goods, effects, and credits of the said defendant in the hands and possession of E. F. of said Boston, trustee of the said defendant, as to us ap- pears of record, whereof execution remains to be done : we com- mand you therefore, that, of the goods, chattels, or lands, of the said defendant, in his own hands and possession, and of the goods, effects, and credits of the said defendant in the hands and possession of said trustee, jointly and severally, you cause to be paid and satisfied unto the said plaintiff, at the value thereof in money, the aforesaid sums, being two hundred and thirteen dollars and thirty cents in the whole, with interest thereon from said day of the rendition of said judgment, and with twenty-five cents more for this writ ; and thereof also to satisfy yourself for your own fees ; and for want of goods, chattels, or lands of the said defendant, in his own hands and possession, to be by him shown unto you, or found in your precinct, to the acceptance of the said plaintiff; and for want of goods, effects, and credits 326 MASSACHUSETTS PRACTICE. of the said defendant in the hands and possession of the said trustee, to be by him discovered and exposed to you, to satisfy the several sums aforesaid, with interest as aforesaid, with your own fees, we command you that you take the body of the said defendant and him commit unto our jail in Boston, in our County of Suffolk, or any jail in your precinct, aforesaid, and detain in your custody within our said jail, until he pay the full sums afore- mentioned, with your fees, or that he be discharged by the said plaintiff the creditor, or otherwise by order of law. Hereof fail not, &c. The form of execution issued by trial justices, district, police, and municipal courts, is substantially the same as the above, but usually contains a direction to " any constable of any city or town in said county," as well as to the sheriff and his deputies. The precept of the executions issued by the Municipal Court of the City of Boston runs : — We COMMAND you, therefore, tliat of the money of the said de- fendant, or of his goods or chattels, lands, or tenements, within your precinct, at the value thereof in money, you cause to be levied, paid, and satisfied unto the said plaintiff, the aforesaid sums, &c. When the amount due on the execution as debt or damages is less than twenty dollars, the precept for arrest is omitted. St. 1888, c. 419, § 1. And when a debtor has been discharged from arrest on an execution, and an alias execution is issued, or when an execution issues upon a judgment subsequently recovered in an action on the first judgment, in each case the command to take the body should be omitted. But should the execution issue in the usual form, the debtor will nevertheless be exempt from arrest. Pub. Sts. c. 162, § 40; Davis's Case, 111 Mass. 288. Executions in favor of the Commonwealth, in civil actions, are in form like those in favor of citizens. And executions issued by a trial justice, or district, police, or municipal court, for a sum as damages exceeding twenty dollars, are required to PINAL JUDGMENT AND EXECUTION. 327 be so framed as to direct a levy upon the lands and tenements of the debtor. Pub. Sts. c. 171, § 20. When such amount is twenty dollars or less, the precept for such levy is omitted. AH . executions are required to be made returnable in sixty days from tteir date. Ibid. § 22. A trustee cannot be pro- ceeded against by suit before the expiration of the sixty days. Adams v. Oummiskey, 4 Cush. .420 ; Mies v. Field, 2 Met. 327. And scire facias cannot be sued against bail by reason of an avoidance upon an execution before the expiration of the sixty days, nor after that time unless a certificate authorizing arrest has been annexed to the execution, and the officer has made return of non est inventus. Rhodes v. Brooks, 16 Gray, 170. But when upon application made for a debtor's arrest on execution, the officer makes return on the notice that after diligent search the debtor has not been found, scire facias will lie at once, without waiting for the return day of the execution. Pub. Sts. c. 163, § 7; Wehrle v. Gurney, li& Mass. 331. The following is the form of execution issued in cases of summary process for recovery of land. It is essentially the same form as that of the habere facias, or writ of posses- sion, issued by the Superior Court in favor of the demandant in a writ of entry : — Commonwealth of Massachusetts. Suffolk, ss. To the Sheriff of our County of Suffolk, or his Deputy, or any Constable of the City of Boston, within our said County. Greeting. Whereas, A. B. of said Boston, plaintiff, before our Justices of the Municipal Court of the City of Boston, holden at said Bos- ton, within and for said County of Suffolk, for civil business, upon the sixteenth day of June, a. d. 1893, by the consideration of our said Court recovered judgment for his title and possession of and in a certain tract or parcel of land [describing it] against 32S MASSACHUSETTS PRACTICE. C. D., of said Boston, defendant, who had unjustly withheld, put out, or removed the said plaintiff from his possession thereof ; and also at the said court recovered judgment for four dollars and twenty-five cents for costs, as to us hath heen made to appear of record : we command you, therefore, that without delay you cause the said plaintiff to have possession of and in the said premises. We also command you, that of the goods or chattels of the said defendant within your precinct, at the value thereof in money, you cause the said plaintiff to be paid and satisfied the aforesaid sum of four dollars and twenty-five cents, which to the said plaintiff iS adjudged for his costs, together with interest thereon from the said date, with twenty-five cents more for this writ, and thereof also to satisfy yourself for your own fees. And for want of such goods or chattels of the said defendant, to be by him shown unto you or found within your precinct, to the acceptance of the said plaintiff, to satisfy the aforesaid sums with interest thereon from the said date : we command you to take the body of the said defendant, and him commit into our gaol, in Boston, in our County of Suffolk, aforesaid, and detain in your custody within our said gaol, until he pay the full sums above mentioned with your fees ; or that he be discharged by the said plaiutiff, or otherwise accord- ing to ,law. Hereof fail not, and make return of this writ, with your doings therein, within sixty days next coming. Witness, W. E. P., Esquire, at Boston aforesaid, the twenty- second day of June, in the year of our Lord one thousand eight hundred and ninety-three. J. F. B., Clerk. Executions issued from district, police, and, municipal courts may be served in every county to which they are directed. Pub. Sts. c. 154, § 47 ; c. 172, § 48; St. 1893, c. 396, § 17. Alias Uxeeutions. Whenever an execution is returned unsatisfied, either wholly or in part, as the case may be, without having been in the hands of an officer for service or demand, it is customary for the attorney of the judgment creditor to make an indorse- ment on the execution, stating that the execution is returned FINAL JUDGMENT AND EXECUTION. 329 without having been in an officer's hands, and is in no part satisfied, together with a request for an alias execution. If the execution has been satisfied in part, the return sliould state what sums have been paid thereon, and an alias should be requested for the balance remaining due, with a statement of the amount of such balance. Alias or successive executions may be issued at the request of the judgment creditor or his attorney until the judgment has been satisfied, provided each execution is sued out within five years after the return day of that which preceded it. Pub. Sts. c. 171, § 16. If a judgment remains unsatisfied after the expiration of 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 thereon. 1 Pub. Sts. c. 171, § 17. And the mere fact that an execution has been issued and not returned will not prevent the maintenance of the action. Wilson v. Hatfield, 121 Mass. 551 ; Linton v. Hurley, 114 Mass. 76. If an execution is returned satisfied wholly or in part by the sale of property not liable to such execution, and if dam- ages are recovered against the judgment creditor or officer, on account of the seizure and sale of the property, the creditor may have a scire facias on his judgment, and thereupon a new execution will issue for the sum then remaining justly and equitably due to him. Pub. Sts. c. 171, § 18. This remedy applies only to judgments rendered in this Common- wealth ; and where the mistake occurred in a levy under a judgment obtained in another State.,, it was held in an action brought here to recover the balance due on the judgment, * Every judgment and decree of a court of record of the United States, or of this or any other State, is presumed to be paid and satisfied at the expiration of twenty years after the judgment or decree was rendered. Pub. Sts. c. 197., § 23. Actions on judgments rendered by trial justices must be brought within six years. Ibid. § 1. Smith v. Morrison, 22 Pick. 430; Mowry v. Ckeesman, 6 Gray, 515. 330 MASSACHUSETTS PRACTICE. that 110 more could be recovered than the sum for which the execution was returned unsatisfied. Arnold v. Boraback, 8 Allen, 429. If, after the return of an execution, a levy proves to be invalid, the judgment creditor may have a writ of scire facias to the debtor requiring him to show cause why another exe- cution should not be issued on the same judgment, and the writ may be sued out although there is a subsequent judgment for a part thereof not satisfied by levy. Pub. Sts. c. 172, §§ 53, 64. If no cause is shown to the contrary, the. levy of the former execution may be set aside and another execution issued for the amount then due on the original judgment and not in- cluded in a subsequent judgment, but without interest or further costs. Ibid. § 53. If it appears that the estate levied on did not belong to the judgment debtor, or was not liable to be taken in execution, or cannot be held under tlie levy by reason of informality, the remedy given above is exclusive of an action on the judgment. Dennis v. Arnold, 12 Met. 449 ; Perry v. Perry, 2 Gray, 826 ; Dewing v. Durant, 10 Gray, 29; Haskell v. Littlefield, 155 Mass. 320. See also Pub. Sts. c. 171, § 19, concerning service of exe- cution against a corporation. Escecution against Absent Defendants. Whenever, after due notice given in compliance with the order of the court, judgment in a personal action is rendered upon the default of a defendant who is out of the Common- wealth, or whose residence is unknown, the plaintiff is not entitled to an execution within one year thereafter, unless he first deposits with the clerk, for the use of the defendant, a 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. FINAL JUDGMENT AND EXECUTION. 331 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 clerk passes upon the sufficiency of the sureties, subject to appeal from his decision to any justice of the court in which the judgment is rendered. Pub. Sts. c. 164, §§ 6-9. The form of bond in such cases is as follows : — r Know all men by these presents, that we, C. G., of, &c., as principal, and M. N. and K. S., of, &c., as sureties, are holden and stand firmly bound unto B. A., of, &c., in the sum of five hundred dollars, to be paid unto the said B. A., his executors, administrators, or assigns ; to which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, firmly by these presents. Sealed with our seals. Dated the twenty-first day of April, a. d. 1893. The condition of this obligation is such, that whereas, at a sitting of the Superior Court begun and held at Bqston, within and for the County of Suffolk, on the first Tuesday of April, a. d. 1893, to wit, on the twentieth day of April a. d. 1893, the said C. Gr. re- covered judgment against the said B. A. for the sum of two hun- dred dollars damages, and ten dollars and thirty-seven cents costs pf suit. Now if the said C. G. shall repay the amount so recov- ered, if the judgment is reversed, or so much of the amount as shall be recovered back upon a review to be brought by the said B. A., at any time within one year after said judgment, then this obligation shall be void ; otherwise, shall be in full force and virtue. If execution is taken out without filing a bond, the remedy of the defendant is not by writ of error ; but he may bring, his writ of review within the year, or he may sue out a writ of audita querela, to vacate all proceedings under the execution. Johnson v. Harvey, 4 Mass. 483 ; Dingman v. Myers, 13 Gray, 1. If the judgment creditor does not file the required bond within one year after the rendering of the judgment, he can- not obtain an execution after the year has expired. Pease v. Morris, 138 Mass. 72. 332 MASSACHUSETTS PRACTICE. Service of Executions — Arrest. When an execution is in the alternative, so that it may lawfully be served in any of two or more ways, the creditor or his attorney may require the officer to serve it in either way, and the officer is required to follow such directions if possible. Pub. Sts. c. 171, §§ 28, 29. No affidavit is necessary to authorize an arrest for costs only ; nor upon an execution issued upou 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 sufficient property to satisfy the execution, Pub. Sts. c. 162, § 5 ; see HildretJi v. Brigham, 12 Allen, 71 ; nor to arrest a female judgment debtor who has been cited and has failed to appear or is in contempt. Pub. Sts. c. 162, §§ 8, 10, 13. With these exceptions, and except in actions of tort, no person can legally be arrested on an execution in a civil action, unless the judgment creditor or some person in his behalf, after execution is issued amounting to twenty dollars exclusive of all costs which make part of such 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 affidavit, and proves to the satis- faction of some court of record, or district, police, or municipal court, or except in the county of Suffolk, some trial justice, 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- 1 A spendthrift under guardianship cannot lawfully be arrested under this charge, on an execution issued in an action of contract against him. Blake's Case, 106 Mass. 501. And the same is true of an infant. Gassier'' s Case, 139 Mass. 458. FINAL JUDGMENT AND EXECUTION. 333 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 Common- wealth ; 1 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 execution ; 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 was recovered was for money collected by the debtor for the cred- itor, and that said attorney unreasonably neglects to pay the same. Pub. Sts. c. 162, § 17 ; St. 1888, c. 419, § 1. The affidavit and the magistrate's certificate that he is satis- fied there is reasonable cause to "believe the charges therein contained, or some one of them, are true, must be annexed to the execution. If the judgment debtor lives or has his usual place of business in any county in this State, the application for a certificate authorizing his arrest must be made in that county ; otherwise, it may be made in any county. Pub. Sts. c. 162, § 17. The affidavit and certificate annexed to the execution are the only sources of evidence that the preliminary steps have been properly taken, and that the arrest, when made, is duly authorized. It is therefore necessary that they should show ^ The statute is not applicable to gaming in another State by the debtor who was not at the time a citizen of this State. Bradley v. Burton, 151 Mass. 419. 334 MASSACHUSETTS PRACTICE. affirmatively and directly that the requirements of the statutes have been complied with. Smith v. Bean, 130 Mass. 298. Formerly it was open to a creditor to bring a suit upon a debt of less than twenty dollars and obtain a judgment which, including costs, would amount to more than that sum, and in a suit upon that judgment obtain a second for an amount large enough to authorize an arrest of the body of the debtor. Such a result is now impossible, but if the debtor gives his note for the amount of the first judgment, or, in the action in which that judgment was obtained, gave a bond to dissolve an attachment, a new cause of action is thereby voluntarily cre- ated by the debtor, and an arrest may be authorized on a judg- ment obtained in an action on such note or bond, ffooper v. Cox, 117 Mass. 1. If in addition to the first charge, affidavit is made and it is proved " that there is good reason to believe that the debtor intends to leave the State," the court or magistrate may, with- out notice to the debtor, authorize his arrest. Pub. Sts. c. 162, § 25 ; St. 1889, c. 419, § 4. The following forms may easily be adapted to any of the charges specified above : — Commonwealth or Massachusetts. Suffolk, ss. The Municipal Court of the City op Boston. Foe Civil Business. June 15, A.D. 1893. I, A. M. H., in behalf of the judgment creditor named in the annexed execution, do on oath declare, that the judgment on which the said execution has been issued amounted to twenty dol- lars 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 that twenty dol- lars of that amount remains uncollected ; and that I believe and have good reason to believe that the debtor named in said execu- tion has property not exempt from being taken on execution, FINAL JUDGMENT AND EXECUTION. 385 which he does not intend to apply to the payment of the judgment creditor's claim. And I do further on oath declare that there is good reason to believe that the said debtor intends to leave the State. A. M. H. Personally appeared the above named A. M. H., before the said court, and made oath that the above affidavit by him subscribed is true ; and this certifies that, after due hearing, the court is satisfied there is reasonable cause to believe that the cliarges contained in the said affidavit are true, and the said court hereby authorizes the arrest of the said debtor.^ "Witness W. E. P., Esquire, at Boston aforesaid, the fifteenth day of June, in the year of our Lord one thousand eight hundred and ninety-three. G. H., Clerk. But since no certificate is necessary to authorize an arrest on an execution for costs, an arrest may be made on such an execution, and after sunset, without special authority therefor. Stone's Case, 129 Mass. X56. Examination of Debtor. When application is made for a certificate authorizing ar- rest upon the first charge specified above, unless it appears that the debtor intends to leave the State, it is the duty of the magistrate, before granting the certificate, to issue notice to the debtor to appear at a time and place therein fixed, and submit to an examination touching his estate. Such notice may be served by any officer qualified to serve civil process by delivering an attested copy of the notice to the debtor or leaving the same at his last and usual place of abode, allow- ing not less than three days before the time fixed for the ^ Under the form of affidavit given above the court or magistrate may authorize the arrest without first giving notice to the debtor. Pub. Sts. 0. 162, § 25. No arrest can legally be made after sunset, unless specially authorized by the magistrate, upon satisfactory cause shown. Pub. Sts. c. 162, § 26. And where the certificate was in the form given above, authorizing an arrest after sunset, it was held that the debtor might legally be arrested before sunset. Manuel v. Bg,tes, 104 Mass. 354. 336 MASSACHUSETTS PRACTICE. examination, and at the rate of one day additional for every twenty-four miles' travel. Pub. Sts. c. 162, § 18. The debtor is entitled to additional time for travel at the rate of one hour for each mile, before the beginning of the third day from the day fixed for examination. Laine v. Hol- man, 145 Mass. 221. The examination or the time fixed therefor may be postponed or continued from time to time at the discretion of the magistrate. Pub. Sts. c. 162, § 18 ; St. 1889, c. 415. The examination must be had before some court of record, or district, police, or municipal court, or, except in the county of Suffolk, some trial justice. St. 1889, c. 419, § 2 ; Pub. Sts. c. 162, § 18. Justices of the peace have no au- thority to act in such cases except to issue notices returnable before some magistrate authorized to act. Ibid. § 18. The notice must be signed by the magistrate, designating his official' capacity, and must be substantially in the form given in Pub. Sts. c. 162, § 19, as follows : — To. A. B. C. D., the judgment creditor named in a certain execution against you, dated , issued from [here designate the court], having applied for a certificate authorizing your arrest, you are hereby notified to appear before [here designate the name or names of some magistrate or magistrates named in section twenty-seven],^ at [here designate the place of examination or hearing], on the day of at o'clock in the noon, for examination in accordance with the provisions of chap|}er one hun- dred and sixty-two of the Public Statutes. E. F. (Magistrate). If the notice issues from a court of record, having a clerk, it must be under the seal of the court, signed by the clerk or assistant clerk, and bear teste of one of the justices who is i^ot a party. St. 1889, c. 415. If the debtor fails to appear at the examination, or, if appearing, he fails to obey all lawful orders and requirements 1 Amended by St. 1888, c. 419, § 5. FINAL JUDGMENT AND EXECUTION. 337 of the court or magistrate, the arrest may be authorized, either upon the original execution or upon an alias or other succes- sive execution issuing on the same judgment. Pub. Sts. c. 162, § 20 ; St. 1889, o. 415. The affidavit may be made at any time before the certificate is issued, unless the court or magistrate otherwise orders. St. 1891, c. 407. Prior to the enactment of this statute it had become customary to issue the citation before the affidavit was made, but this course was declared illegal in Williams v. Shillaber, 153 Mass. 541, decided before the statute was passed. See also Atwood v. Wheeler, 149 Mass. 96. The examination and hearing are oral, unless one of the parties requests that it may be wholly or in part in writing. Pub. Sts. c. 162, § 20. Upon proof of any one of the six charges before specified, except the first, an arrest may lawfully be authorized upon an ex parte hearing, without notice to the debtor ; and if, in addition to the first charge, the 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, no notice is necessary. Frost's Case, 127 Mass. ^50, 552. The requirement of notice to the debtor affords him an opportunity to be heard, and to avoid arrest by transferring to his creditor any property which he may be found to have not subject to levy. Notice is necessary on either of the charges specified in Pub. Sts. c. 162, § 17 ; St. 1887, c. 442, § 1, and if the certificate is refused upon such an application, the creditor may afterwards make a new application based upon one or more of the other charges named in the statute. Frost's Case, uhi supra. In cases where the notice is necessary, the proceedings are of a judicial nature, and involve an application to a magistrate who has jurisdiction in the premises, a notice from him in the nature of a summons to the debtor, and a trial in which the 22 338 MASSACHUSETTS PRACTICE. debtor is compelled to be a witness and either party may pro- duce any legal and pertinent evidence. The effect upon the rights of the parties of what is done at that trial is a matter to be judicially determined by the magistrate, who will grant or refuse the certificate authorizing the arrest, according to the conclusion which he arrives at. ITewmarket Natl Bunk V. Cram, 131 Mass. 204, 206 ; Pub. Sts. c. 162, § 20 ; St. 1888, c. 419, § 3. " 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 Shall, if possible, produce the excess and allow it to be taken on the execution, or otherwise 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 shall be required to exe- cute and deliver to the judgment creditor, or to some perspn in his behalf, a transfer, assignment, or conveyance of the same, in such form as the magistrate may direct." Pub. Sts. c. 162, § 21. Real estate so transferred may be redeemed within one year, and personal property within sixty days from the date of the assignment. The creditor may refuse to accept any such transfer, and his acceptance will not impair his right to levy upon other property to satisfy the balance remaining due on the execution. Ibid. §§ 22, 23. If, however, the creditor does not ask for the certificate when the default or disobedience occurs, or at some time to which the proceedings are continued, and the matter is suf- fered to drop, the creditor thereby loses all advantage of the proceedings, and cannot avail himself of the debtor's default, in a new application before another magistrate, as a reason for not issuing a new notice and beginning de novo. Carleton V. Akron Sewer Pipe Co., 129 Mass. 40. If the debtor appears as directed and obeys all lawful orders and requirements made by the court or magistrate, no FINAL JUDGMENT AND EXECUTION. 339 certificate can lawfully be granted ; and the judgment creditor is restrained for the period of three years thereafter from making application for the arrest or examination of the debtor upon the same charge and cause of action. Pub. Sts. c. 162, § 24. But this restriction does not prohibit an ex- amination within three years, upon other charges, in the course of proceedings initiated by the debtor for the purpose of taking the poor debtor's oath after an arrest. Frosfs Case, 127 Mass. 560. If the time for the return of the execution expires while the examination is pending, the arrest may be authorized upon an alias or other- successive execution, in like manner and for the same reasons or defaults as upon the original execution. If the time for the return of the execution, or of any alias or other successive execution issuing on the same judgment, expires after a certificate authorizing an arrest has been affixed thereto, and before such arrest has been made therein, a copy of the original certificate, certified by the clerk.of the court issuing the original certificate, and under the seal of the court, must be affixed to any alias or other , successive execution issuing on the same judgment, and such copy is declared to have the same force and effect as the original certificate. St. 1889, c. 415, § 3, amending Pub. Sts. c. 162, § 20. If the debtor is a woman, married or unmarried, and the judgment is for the sum of twenty dollars and upwards, ex- clusive of all costs which make a part ,of the judgment, a similar examination touching her estate may be had in the court of insolvency of the county in which the judgment was obtained or in which the debtor resides, if, on demand of payment made upon her by a duly qualified officer, she fails to pay the amount due or to expose sufficient goods or estate to be taken by the officer to satisfy the same. The proceed- ing is commenced by petition of the creditor, and if the debtor fails to appear in accordance with the citation, a capias 340 MASSACHUSETTS PRACTICE. may be issued to bring her in. And if the result of the ex- amination is a disclosure of property, she may be ordered to make it over to the creditor or be committed for contempt. Pub. Sts. c. 162, §§ 6-15. A judgment in favor of the Commonwealth, whether against a male or a female defendant, may be enforced in the same manner when the attorney-general or the district attorney for the district in which such judgment is recovered makes a written order to that effect upon the execution. In such cases the application may be made either to the court of insolvency or to the court in which the judgment was rendered, which court then has the same jurisdiction in the premises as the court of insolvency, and the right to designate a master in chancery or commissioner of insolvency to take and report the examination of the judgment debtor and the testimony. Ibid. § 16. The following is a form of petition answering the require- ments of the statute : — To the Honorable the Judge of Probate and Insolvency for the County of Respectfully represents A. B. of , in the County of , that on the day of , by the coDsideration of the Justices of the Court holden at within and for the said County of , he, the said A. B., recovered judgment against E. F. of , a married [or unmarried] woman, for the sum of dollars, damage, and dollars, costs of suit ; that thereafter, . to wit, on the day of , execution for said sums amount- ing together to dollars, with cents more for the said writ of execution, issued out of said Court in behalf of said A. B. against said E. F. ; that payment of the said judgment has been duly demanded of the judgment debtor aforesaid by an officer duly qualified to execute the same, and the said judgment debtor has failed to pay the same, or to expose sufficient goods or estate to be taken by the said oflScer to satisfy the same, as appears by said execution and the return duly made thereon by said oflScer, copies whereof are hereto annexed. And your petitioner believes that said judgment debtor has property not exempted from attach- FINAL JUDGEMENT AND EXECUTION. 341 ment, which she refuses to apply in payment of said execution, or to expose so that the same may be taken thereon, and prays that a citation may issue, requiring said judgment debtor to be and appear before your Honor and submit to an examination touching her estate. A. B. Commonwealth of Massachusetts. [Date.] ss. Personally appeared the above-named A. B., and made oath that the above statements by him subscribed are true, so far as they depend upon his own knowledge, and that so far as they depend upon information and belief, he believes them to be true. X. Y., Justice of the Peace. One whose property has been levied on, and the execution thereby satisfied in part, may afterwards be committed to prison on the same execution to satisfy the balance. But if a judgment debtor is committed before any of his property is levied on, the exe'cution is considered as functus officio, and cannot afterwards be levied on his property. Dodge v. Boane, 3 Gush. 460. By the common law the commitment of a debtor in execu- tion was a discharge of the judgment. Gohurn v. Palmer, 10 Cush. 273. But if a debtor arrested or committed on execu- tion is discharged upon giving recognizance upon taking the oath for the relief of poor debtors, the execution is functus officio, and the judgment remains in full force against his estate, and the execution being returned an alias may issue against the debtor's property as if he had not been commit- ted. Pub. Sts. c. 162, § 40 ; Cheney v. Whitely, 9 Cush. 289 ; Twining v. Foot, 5 Cush. 512, 514; Tracy v. Prelle, 117 Mass. 4. Except in the cases enumerated by our statutes the rule of the common law still prevails, and when a debtor was taken and committed on execution and was afterwards discharged from arrest, with the consent of the creditor, it was held that 342 MASSACHUSETTS PRACTICE. the judgment must be deemed satisfied. Cheniy v. Whifely, 9 Gush. 289 ; Mwell v. Waitt, 121 Mass. 554. The judgment creditor may procure an arrest of his debtor without affecting a pending action on a bond given to dissolve an aitta Except in cases coming within the intent of these sections, the allowance of the set-off of judgments, not being a matter of right, is discretionary with the judge to whom the motion is made, and his decision cannot be revised upon a bill of ex- ceptions or otherwise. CMpman v. Fowle, 130 Mass. 352. Executions between the same parties may be set off one against another, if either party requires it. Such set-off can- not be claimed or 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 law- fully and in good fs^th assigned to another person before 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. Pub. Sts. c. 171, §§ 25, 27 ; Jones V. Carpenter, 9 Met. 509 ; Porter v. Leach, 13 Met. 482 ; Ocean Ins. Go. V. Rider, 22 Pick. 210. FINAL JUDOMENT AND EXECUTION. 349 In a case not included in the above exceptions, it is the duty of the officer who holds the first execution, when so directed, to apply the second execution, so far as it will extend, to the satisfaction of the first, and the balance may be collected in the usual manner. Pub. Sts. c. 171, § 26. 350 MASSACHUSETTS PEAOTICB. CHAPTER IX. APPEALS, EXCEPTIONS, AND REPORTS. APPEALS. From District and Police Courts. A PARTY aggrieved by the judgment of a district or police court, may, withiii twenty-four hours after the entry of the judgment, appeal therefrom to the Superior Court then next to be held in the county, in which case no execution will issue on the judgment appealed from, and the case will be entered, tried, and determined, in the court appealed to, in like manner as if it had been originally commenced there. St. 1893, c. 396, § 24. No appeal from such a judgment in any action, except actions under Pub. Sts. c. 175, will be allowed unless the appellant within twenty-four hours after the entry of judg- ment files a bond with a surety or sureties to the adverse party, to be approved by the adverse party or by the justice or the clerk, in a reasonable sum to be fixed by the justice or the clerk, or approved by the adverse party, with condition to enter and prosecute his appeal with efifect, "and to satisfy, within thirty days of the entry thereof, any judgment for costs which may be entered against him in the Superior Court upon said appeal, provided that the justice or clerk may for cause shown extend the time for filing such bond. The attorney of record of the appellant may execute such bond in his behalf.^ St. 1893, c. 396, § 25. 1 But the attorney will not be accepted as surety. See Adams v. Rob- inson, 1 Pick. 461 ; Rule XI. Sup. Ct. ; Rule XXXV. Mun. Ct., Boston ; Rule IV. Dist. & Pol. Cts. APPEALS, EXCEPTIONS, AND EEPOETS. 351 It seems that the court " then next to be held " is the first sitting that begins after the judgment is actually rendered, although the appeal is not claimed until after the sitting has begun ; as, for instance, when the judgment was entered on Saturday and the appeal was claimed on the Monday follow- ing, it was held that the appeal was properly entered at a term beginning on the same Monday. Mclniffe v. Wheelock, 1 Gray, 600 ; St. 1885, c. 384, § 5. In the computation of time Sunday is to be excluded. See Gardner v. Dudley, 12 .Gray, 430 ; Mclniffe v. Wheelock, 1 Gray, 600 ; Welch v. Damon, 11 Gray, 383 ; Greeley v. Page, 166 Mass. 47. If not exercised within the prescribed time the right of appeal is waived, and if the appeal is subsequently allowed, the Superior Court does not acquire jurisdiction of the case, but will on motion dismiss the appeal as improperly allowed. Gardner v. Dudley, ubi supra. Attorney-General v. Barbour, 121 Mass. 568, 573; Santom v. Ballard, 133 Mass. 464. The fact that an appeail was taken cannot be proved except by the record, and the want of a record cannot be supplied by the statements of a party. Sayles v. Briggs, 4 Met. 421 ; Moore v. Lyman, 18 Gray, 394. If a judgment is rendered against a party in a district court, and he has, without fault on his part, lost his right of appeal, the Superior Court has authority, under Pub. Sts. c. 187, § 25, to grant a writ of review. Keener. White, 136 Mass. 28. See Review, and St. 1893, c. 396, § 33. An action having been tried in the inferior court and a find- ing made for the plaintiff, the action was continued for judg- ment, to await the disposition of another action. After the other action had been disposed of, the plaintiff filed a motion " to have judgment entered in the above entitled action," oh which was indorsed and signed by the defendant's attorney, " It is agreed that this motion may be filed and allowed." It was held that this was not such a judgment by the consent of 352 MASSACHUSETTS PRACTICE. the defendant that he was not aggrieved by it and could not appeal. Emery v. Seavey, 144 Mass. 403, Following is a form of an ordinary appeal bond : — Know all men by these presents, that I, A. B., of Canton in the County of Norfolk and Commonwealth of Massachusetts, as principal, and C. D., of Stoughton in the County of Norfolk and Commonwealth aforesaid, as surety, are holden and stand firmly bound and obliged unto E. F., of said Canton, in the sum of One HDNDRED DOLLARS, to the payment of which to the- said E. F. well and truly to be made we hereby jointly and severally bind ourselves and our respective executors and administrators firmly by these presents, sealed with our seals and dated this fifth day of April, in the year of our Lord eighteen hundred and ninety-three. The con- dition of this obligation is such that whereas the said E. F., by the consideration of the justices of the District Court of Southern Norfolk, at a court held in Stoughton, in the County of Norfolk, on the fourth day of April, in the year of our Lord eighteen hun- dred and ninety-three, recovered judgment against the said A. B. in a personal action, from which judgment the said A. B. appealed to the Superior Court to be holden at Dedham within and for said County of Norfolk on the first Monday of May in the year of our Lord eighteen hundred and ninety-three ; now therefore, if the said A. B. shall enter and prosecute his said appeal with effect, and shall satisfy, within thirty days of the entry thereof, any judg- ment which may be entered against him in the Superior Court upon said appeal for costs, then this obligation shall be void, otherwise it shall be and remain in full force and effect. An appeal will be dismissed, on motion, if the bond or recog- nizance (see p. 357, post) is shown to be materially deficient, or is repugnant to the terms of the statute, or imposes a burden greater than is contemplated by law ; but the right to interpose such an objection may be waived. Newcoml v. Worster, 7 Allen, 198 ; Norris v. Munroe, 128 Mass. 386. Thus where a bond was without date, and did not contain an approval by the adverse party or by the justice, and recited in its condition an appeal from a judgment rendered by a district court in favor of the plaintiff in an action, but did not state against whom it was given, when it was rendered, or the amount thereof, either APPEALS, EXCEPTIONS, AND REPORTS. 353 in debt or costs, and the record of the district court showed that the appellant recognized with sufficient sureties, but did not make mention of any bond ; it was held that the bond did not comply with the i-equirements of the statutes, and that the appeal was rightly dismissed. Putnam v. Boyer, 140 Mass. 235. Although the adverse party may consent to dispense with a surety on the bond, a bond without a surety is not a compliance with the statute, and the Superior Court acquires no jurisdiction of an appeal when such a bond is filed. Henderson v. Benson, 141 Mass. 218. Where the record recited that the appellant appealed, and filed a bond with sufficient sureties " not approved or disap- proved by said court, as no motion was made by either party requesting approval or disapproval," it was held that there was a sufficient compliance w,ith the requirements of the statute. Rawson v. Doffner, 143 Mass. 76. Where the parties agreed that an action might be discon- tinued, and judgment was entered accordingly, and, after adjournment for the day but within the time allowed for an appeal, the plaintiff presented to the court a paper repudiat- ing the agreement on the ground of fraud, and claimed an appeal to the Superior Court, and the court allowed the paper to be filed, and allowed the appeal ; it was held that the Superior Court had jurisdiction of the appeal. Powell v. Turner, 139 Mass. 97. The insertion in a recognizance of a condition which is not warranted by law, as that the appellant will pay not only suId- sequently accruing costs but intervening damages, renders the recognizance void. Newcomh v. Worster, 9 Allen, 198. The recognizance or bond should name a specific sum as penalty, and should in all respects conform strictly to the statute requirements, Warner v. Hovjard, 121 Mass. 82 ; but it will be sufficient if the substantial meaning of the statute is expressed, and no greater burden imposed than is required by law. Shaw v. Melntier, 5 Allen, 423 ; Martin v. Campbell, 23 354 MASSACHUSETTS PRACTICE. 120 Mass. 126. See also Pray v. Wasdell, 146 Mass. 324, as citQdi, post, p 362. Where, by mistake, in a criminal case, the recognizance was for the appellant's appearance at a term subsequent to the term next to be held in the county, but, nevertheless, the appeal was properly entered at the next term, the error in the recognizance was deemed immaterial. Oommonwealth v. Campion, 105 Mass. 184. Where the bond filed misdescribed the action in several particulars, but it appeared that it would override the misde- scriptions so as to prevent the escape of the surety in an action upon it, it was held that the adverse party could not take advantage of the misdescriptions after the first term in the Superior Court. Wheeler tfe Wilson Manufg Co. v. Burling- ham, 137 Mass. 581. Where the action was in the district court, and the defend- ant appealed, and gave bond with sureties to prosecute his appeal, and the action was entered in the Superior Court, which affirmed the decision of the district court, and excep- tions were taken, and overruled by the Supreme Judicial Court, and final judgment for the plaintiff was entered in the Superior Court, it was held that it was not open for the principal or sureties on the bond to question the validity of the judgment on the ground that the appeal should have been completed by a recognizance instead of by a bond. The court said : " By putting the decision on the ground that the bond is valid at common law, if not as a statutory bond, we do not mean to intimate that a recognizance should have been taken." Granger v. Parker, 142 Mass. 186. The record of a district court recited the continuance of an action " till the fifth day of November," when judgment was rendered for the plaintiff, from which the defendant " appeals . . . and gives bond to prosecute his said appeal." The bond was dated November 8. It was held that the record as it stood must be taken to be true, and that the fact that the APPEALS, EXCEPTIONS, AND REPORTS. 355 bond was dated November 8 could not be admitted to impeach it. The court observed that if the record did not conform to the fact, application to amend it should have been made to the district court, when it might have appeared that the court " for cause shown " had extended the time for filing the bond. Miller v. Shea, 150 Mass. 283. Where a bond on appeal from a district court did not recite the name of the surety, and the bond purported to be made by " Mary Dupuis," and the bond was signed by a surety, and by "Mary J. Dupuy," and sealed by each, it was held that the bond might be held to be a sufficient compliance with the statute requirements, and that the appeal was not thei'eby invalidated. Guez v. Dupuis, 152 Mass. 454. In lieu of filing a bond, the appellant, or any person in his behalf, may, with the like effect, deposit with the clerk of the court rendering the judgment, or with the justice of such court having no clerk, a reasonable sum to be fixed by the clerk or justice as security for the prosecution of the appeal and the payment of the costs. A certificate of such deposit will be issued to the depositor by the clerk or justice receiving the same (St. 1893, c. 396, § 26), who will transmit such sum, with the papers, to the clerk of the Superior Court to which the appeal is taken, who will thereupon deliver or forward his certificate therefor to such clerk or justice. Ibid. § 27. The clerk of the Superior Court will hold such sum until the final disposition of the case, when he will pay the same, or any part thereof, to the party for whose security it was originally deposited, for his costs, or to the depositor thereof, as the court may order. The court or a justice thereof may also give directions as to the manner of keeping such deposit. Ibid. § 28. When an appeal is claimed by the defendant in an action before a district or police court in which such defendant has given a bond to dissolve the attachment made in such case as provided by law, except in proceedings under Pub. Sts. c. 175, 356 MASSACHUSETTS PRACTICE. and when an appeal is claimed by the plaintiff in a replevin suit, no bond or deposit shall be required for the allowance of such appeal. Ibid. § 29. A bond to dissolve an attachment which is not approved as required by Pub. Sts. c. 161, § 22, does not relieve the princi- pal therein, upon his appeal from the judgment in the action, from the necessity of filing a bond ; and if he does not file such a bond, within the time ordered by the court, a judgment against him is not vacated, and the plaintiff may maintain an action on the bond to dissolve the attachment. Fogel v. Dus- sault, 141 Mass. 154. In an action appealed, the clerk of the court, or justice when the court has no clerk, will cause to be entered in a docket the names of all the parties to the same, the nature of the action or proceeding, with all the doings of the court thereon and the final disposition of the same, with the amount of costs taxed for court, service, and witnesses, and no other record thereof will be required. St. 1893, c. 396, § 31. 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 bonds, and also a brief certificate of the proceedings, to the clerk of the Superior Court, and the same must be there entered by the appellant, and if the appellant fails there to enter and prosecute his appeal, the Superior Court may on complaint of the adverse party affirm the former judgment or render such other judgment as law and justice may require. Ibid. § 30. Where there is an appeal by both parties, the fact' is stated in the record, but both appeals need not be separately entered and prosecuted. Davidson v. Boston & Maine R.B., 3 Cush. 91. On the trial of the appeal by either party, the whole case is open and to be tried anew ; and the party whose appeal has not been entered has the same benefit of a new trial that he would have had, had he entered and prosecuted his own appeal. See Folsom v. Cornell, 150 Mass. 115. APPEALS, EXCEPTIONS, AND EEPOETS. 357 A case so appealed may be tried in the court appealed to, upon the issue joined before the district or police court, or the court may order the defendant to plead in the usual man- ner, and the case will then be tried upon such issues as may be joined therein. St. 1893, c. 396, § 32. From Trial Justices. The statutory provisions in respect to appeals from the dis- trict and police courts apply generally to appeals taken from the judgments of trial justices. See Pub. Sts. c. 155, §§ 28- 35.1 Bul;^ on an appeal from a trial justice, except in actions under Pub. Sts. c. 175, instead of giving a bond, the appel- lant is required, within twenty-four hours after judgment, to recognize to the adverse party with sufficient surety or sureties, to be approved by the adverse party or by the. jus- tice, 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, within thirty days of the entry thereof, any judgment which may be entered against him in the Superior Court upon such appeal, for costs. The justice may, for cause shown, extend the time for recogniz- ing.2 In determining the sufficiency of the sureties upon the 1 The St. 1893, c, 396 (see ante, p. 850 et seq.), is in large part a codifi- cation o£ the provisions of the Public Statutes cc. 1.54 and 155, relating to police, district, and municipal courts and trial justices. By § 69 of the act first cited, the provisions of the chapters- of the Public Statutes mentioned above, except §§ 1, 2, and 64 of c. 154, and §§ 2 and 6 of c 155, do not apply to district and police courts. These chapters, however, are still applicable to municipal courts and trial justices. '^ In taking a recognizance the justice addresses himself to the parties, repeating the substance thereof as follows : — You J. S! and H. D. severally acknowledge yourselves indebted to J. L. in the respective sums following, to wit: you the said J. S., as principal, in the sum of one hundred dollars, and you the said H. D., as surety, in the sum of one hundred dollars, to be levied upon your goods or chattels, lands or tenements, aiid in want thereof, upon your bodies, if default be made in the performance of the condition following. The condition of this recognizance is such, that whereas, &c. [following 358 MASSACHUSETTS PKACTICK. recognizance, the justice may examine upon oath the persons offered as sureties and all other witnesses produced by either party. Pub. Sts. c. 155, §• 29. Similar provision is made to that which obtains in the the condition in the form given below] then this recognizance to be void, otherwise to be in force. Are you content? The act of recognizing is performed by assenting to the words of the magistrate. A brief minute of the transaction is entered on the record, from which a full memoraiidum can be prepared when it is wanted, but the memorandum is not the recognizance, although frequently so called, and should not be attested as a copy. Martin v. Campbell, 120 Mass. 126, 128. Following is a form of the memorandum referred to : — Commonwealth op Massachusetts. memorandum. Norfolk, ss. That on the sixth day of March, in the year of our Lord one thousand eight hundred and ninety-three, J. S. and H. D., both of Wrentham, in the County of Norfolk, personally appeared before me, S. W., a trial justice ill and for the County of Norfolk, and acknowledged themselves to be severally indebted unto J. L. of Dedham in said county, in the respec- tive sums following, to wit: the said J. S. as principal, in the sum of one hundred dollars, and the said H. D. as surety, in the sum of one hundred dollars, to be levied on their goods or chattels, land or tenements, and in want thereof upon their bodies, to the use of the said J. L., if default be made in the performance of the condition hereunder written. The condition of the above written recognizance is such, that whereas the said J. L., by the consideration of me, the said justice, at a court held by me, at said Wrentham, on the fifth day of March current, recovered judgment against the said J. S. for the sum of eighty-seven dollars and fifteen cents debt or damage; and costs of suit, taxed at seven dollars and twenty-eight cents, in an action of contract brought by said J. L. against said J. S., in which the said J. L. set his damages at one hundred dollars ; from which judgment the said .T. S. appealed to the Superior Court next to be holden at Dedhara within and for the County of Norfolk on the first Monday of May next : Now if the said J. S. shall enter and prosecute his said appeal with effect, and shall satisfy, within thirty days of the entry thereof, any judgment which may be entered against him in the Superior Court upon said appeal for costs, then the above written recognizance to be void' and of no effect, otherwise to abide in full force, power, and virtue. S. W., TrialJustice. APPEALS, EXCEPTIONS, AND KEPOETS. 359 district and police courts for the deposit of money by the appellant as security to prosecute his appeal, in lieu of recog- nizing. Pub. Sts. c. 155, §§ 30-32, When a defendant appeals who has already given a bond to dissolve an attachment made in the suit, as provided by law, no recognizance or deposit can be required of him, except in summary process for the recovery of land under Pub. Sts. c. 175. Pub. Sts. c. 155, § 33. See Fogel v. DussauU, 141 Mass. 164, as cited, ante, p. 356. The appellant must produce at the court appealed to a copy of the record, and of all the papers filed in the case, except that when depositions or other written evidence or documents are so filed, the originals are to be produced instead of copies. If the appellant fails to produce such copies or papers, or to enter and prosecute his appeal, the court may, on the com- plaint of the adverse party, affirm the former judgment, or render such other judgment as law and justice may require. Pub. Sts. c. 155, § 34. See Zeyden v. Sweeney, 118 Mass. 418 ; Martin v. Campbell, 120 Mass. 126. A trial justice has no authority to extend the time for per- fecting an appeal until such time as he shall notify the appel- lant to appear before him ; and if, subsequently, upon being notified, the appellant appears before the justice and recognizes with surety, no notice having been given to the appellee, the appeal will be dismissed on motion. Parker v. Snow, 143 Mass. 423. As to defects of form, in bonds, and recognizances, upon appeal, see pp. 352 et seq., ante. From the Municipal Court of the City of Boston. By the provisions of c. 154 of the Public Statutes, § 52, as amended by c. 95 of the St. of 1882, in the Municipal Court of the City of Boston, the appellant, instead of entering into a recognizance, is required to file a bond, with surety or sureties, to the adverse party within the same time, upon the same 360 MASSACHUSETTS PBAOTICE. conditions, and with the same powers in the judge and clerk, as are provided in the same chapter in respect to recogni- zances in the police and district courts. See §§ 39, 40, and also St. 1893, c. 396, §§ 26-28. By the rules of the court, the penal sum in such a bond, except in proceedings under Pub. Sts. c. 175, is flOO unless the court otherwise orders.^ Rule XXXV. Mun. Ct. In Summary Process for the Recovery of Land. In summary process for the recovery of land under Pub. Sts. c. 175, when a judgment is rendered for the plaintiff for ' The following form of bond is used in the Municipal Court of the City of Boston, which by Rule XXXV. fixes the penal sum at one hun- dred dollars : — Know all men by these presents, That we, J. S. of Boston, in the County of Suffolk, and Commonwealth of Massachusetts, as principal, and H. D. of Chelsea, in said county, as surety, are holden and stand firmly bound and obliged unto 3. L. of said Boston, in the full and just sum of One Hundred Dollars, to be paid unto the said J. L., his exec- utoi'S, administrators, or assigns ; to which payment well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, dated at Boston, the sixteenth day of March, in the year of our Lord one thousand eight hundred and ninety-three. The condition of this obligation is such, that whereas the said J. L., by the consideration of the justices of the Municipal Court of the City of Boston, holden at said Boston, within the County of Suffolk, for civil business, on the fifteenth day of March, in the year of our Lord one thousand eight hundred and ninety-three, recovered judgment against the said J. S. for the sura of ninety-six dollars and twenty-five cents damages, and costs of suit taxed at fourteen dollars and seventeen cents, in a per- sonal action brought by said J. L. against said J. S., in which the said J. L. set his damages at two hundred dollars ; from which judgment the said J. S. appealed to the Superior Court to be holden at said Boston, within and for the County of Suffolk, for the transaction of civil business, on the first Monday of April next. Now if the said J. S. shall enter and prosecute his said appeal in said Superior Court with efiect, and satisfy any judgment which may be entered against him in said Superior Court upon said appeal for costs within thirty days of the entry of such judgment ; then this obligation to be void, otherwise to abide in full force, power, and virtue. APPEALS, EXCEPTIONS, AND EEPOETS. 361 the recovery of the demanded premises, and the defendant appeals from such judgment, or when the defendant removes the case to the Superior Court as provided in Pub. Sts. c. 155, § 24, the defendant, before such appeal is allowed, must file a bond to the adverse party, with sufficient surety or sureties to be approved by the adverse party^ or by the justice or court, conditipned to enter the action and to pay to the plaintiff, if final judgment is in his favor, all rent then due, all inter- vening rent, and all loss or damage which he may sustain by reason of the withholding 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. Pub. Sts. c. 175, § 6, as amended by St. 1888, c. 325, § 1. When the action is to recover premises after the foreclosure of a mortgage, the condition must be for the entry of the action and the paiyment to the plaintiff, if the final judgment is in his favor, of all 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 thei plaintiff. Pub. Sts. c. 175> § 7, as amended by St. 1888, c. 325, § 2. Since the defendant, upon judgment for possession, ordi- narily becomes liable to pay rent at the rate fixed by the con- tract between the parties until the recovery of possession by the plaintiff, although the buildings on the premises are meanwhile destroyed by fire, and also for waste actual or per- missive, and for all losses, including the destruction of the building, if not caused by inevitable accident (see Davis v. Alden, 2 Gray, 309) ; it would seem that the penal sum in the bond for appeal in Summary Process, may fairly be fixed to cover the value of the property, or at least of such part of it. as, possibly, may be destroyed by fire or other casualty, or injured by waste. In the Municipal Court of the City of Boston, the amount of the bond, and in all cases of appeal the sufficiency of the surety or sureties, may be determined 362 MASSACHUSETTS PRACTICE. by the clerk with a right of appeal from his decision by either party to any justice of the court. Rule XXXVI. Mun. Ct. A bond given on an appeal under Pub. Sts. c. 175, § 6, con- ditioned that the tenant " shall enter and prosecute his' ap- peal" in the Superior Court "with effect, and satisfy any judgment which may be entered against him in said Superior Court, and all rent due or to become due, damages and costs, ivpon said appeal and for costs, within thirty days of the entry of such judgment," if not within the statute, is valid at common law. And, in an action upon such a bond, it is too late, on appeal, to impeach the validity of a judgment obtained without objection, on the ground that the bond differs from that prescribed by the statute. Pray v. Wasdell, 146 Mass. 324. See Granger v. Parker, 142 Mass. 186. Entry of Appeals. The appeal must be entered in the court appealed to at the time and in the manner prescribed for the entry of actions originally brought in that court. Pub. Sts. c. 155, § 28 ; St. 1885, c. 384, § 5; St. 1893, c. 369, § 30. And no appeal can be entered on the docket of the Superior Court unless the original papers or copies are produced and filed at the time of entry, except for cause shown to the court. Rule VIII. Sup. C-t. It is incumbent upon the appellant, whether he be plaintiff or defendant!, to pay for the copies in appeals from trial justices, and also the entry fee in all cases. Upon the entry of the appeal, the name of the appellant's attorney must be entered upon the clerk's docket. Rule IX. Sup. Ct. If by reason of mistake or accident the appeal, or a com- •plaint founded on an omission to enter an appeal {^ide infra), is not duly entered, the court, upon petition filed within a year after the entry should have been made, may allow the entry upon reasonable terms, andi when entered accordingly, the case will be proceeded with as if it had been duly entered, ex- APPEALS, EXCEPTIONS, AND REPORTS. 363 cept that no attachments made or security given in the original action and discharged by failure to enter the appeal will be revived by such late entry. Pub. Sts. c. 152, § 16. See St. 1883, c. 223, §§ 7-11. The statutes provide that if the appellant fails to produce the copies or papers, or to enter and prosecute his appeal, the court may, on the complaint of the adverse party, affirm the former judgment or render such other judgment as law or jus- tice may require. Pub. Sts. c. 155, § 34 ; St. 1893, c. 396, § 30. It is said that a strict construction of the statutes would require that, after the first sitting following the entry of the judgment appealed from, a petition for leave to enter the complaint should be filed, and, distinct from such petition, the complaint itself ; but this is mere matter of form not affecting the rights of the parties, and in practice the two are often combined. The appellant being in default in failing to enter his appeal is not entitled to notice, but the court may in its discretion order notice to be given. Noyes v. Sherburne, 117 Mass. 279. Even when leave to enter an appeal has been obtalined the appellant may lose his right to a hearing if he is guilty of laches in entering his appeal. See BoMnsori, v. Durfee, 7 Allen, 242. Upon appeals, the parties may be required to plead anew in the Superior Court, Pub. Sts. c. 155, § 35 ; St. 1893, c. 396, § 32 ; and, formerly, the defendant was obliged, by rule, to file an answer in the appellate court within thirty days, in all cases. Now, the rule requires that an answer shall be filed in cases in which no answer was filed in the court below, within thirty days after the entry of the appeal, unless the court shall other- wise order. Rule XX. Sup. Ct.^ 1 It is to be observed that an answer is. required to be filed in all cases in the district and police courts, and in the Municipal Court of the City of Boston. See St. 1893, c. 396, § 23 ; Rule V. Dist. & Pol. Cts.; Rule X. Mun. Ct., Boston. By an application of the former rule of the Superior Court referred to in the text, it was held that the defendant might file an answer setting up 364 MASSACHUSETTS PRACTICE. Effect of Appeal. The taking and allowance of an appeal where the right does not legally exist, or after the time has expired within which the right might legally have been exercised, are inoperative and have no effect upon the force and validity of the judgment. Camplell v. Howard, 5 Mass. 376 ; Bowler v. Palmer, 2 Gray, 553. But an appeal rightly taken vacates the judgment appealed from, and although it is not entered or is not prosecuted after entry, the judgment of the lower court, before it can be of any avail to the party in whose favor it was rendered, must be afl&rmed in the appellate court in the manner hereafter de- scribed. Paifie V. Gowdin, 17 Pick. 142 ; Gassett v. Gottle, 10 Gray, 375 ; Leyden v. Sweeney, 118 Mass. 418. The appeal vacates the whole judgment so far as it touches the appealing party, as well that part which is in his favor as that which is against him, Morse v. Dayton, 125 Mass. 47, 49 ; but when, in an action of contract there are two counts, and the appellant prevailed upon one and the adverse party upon the other, the appeal does not open the judgment as to the count upon which the appellant prevailed ; for each party is an actor, and may have judgment and legal costs. Whiting'v. Goehran, 9 Mass. 532 ; Downing v. Goyne, 121 Mass. 347 ; May V. Gates, 137 Mass. 389. So, upon a judgment in replevin in favor of the plaintiff for a part of the goods, and against him for the residue, his appeal from the judgment against him does not reopen the judgment in his favor. Vinal v. Spofford, 139 Mass. 126. See also Smith v. Dickinson, 140 Mass. 171 ; Shep- ard V. Lawrence, 141 Mass. 479. that the action was prematurely brought, this being a defence which may be pleaded in bar, and not mere matter in abatement. Fels v. Raymond, 134 Mass. 376. Now, when the action is tried in the Superior Court upon the issues joined below, it is apprehended that the defence stated cannot be set up unless it was pleaded below, or unless the party obtains leave to set it up by amendment. APPEALS, EXCEPTIONS, AND KEPORTS. 365 From the Superior Court. An appeal from the inferior tribunals transfers all ques- tions both of law and of fact to the Superior Court. The determination of questions of fact in that court is final ; but an appeal may be had to the Supreme Judicial Court by any party aggrieved by a judgment of the Superior Court founded upon matter of law apparent on the record, except a judgment upon an answer or plea in abatement, or motion to dismiss for defect of form of process. Pub. Sts. c. 152, § 10.^ As the Supreme Judicial Court has no authority to revise the findings of the Superior Court in matters of fact, it is always necessary when an appeal is resorted to, especially in cases tried by the court without a jury, that the record should show clearly and positively that the judgment was on matters of law alone, and not based on facts proved and the inferences of the presiding justice drawn from such facts. Knowles v. Bachelder, 106 Mass. 343 ; Dorr v. Richardson, 114 Mass. 346 ; Keegan v. Cox, 116 Mass. 289 ; West v. Piatt, 120 Mass. 421 ; Bill V. Stewart, 156 Mass. 508. Since no appeal lies from the Superior Court unless the record discloses an error of law, an appeal from an order of that court overruling a motion containing allegations of fact will be dismissed when there is nothing in the record to show that the facts relied on were established in that court, or that any evidence was offered in support of them. Fay v. Upton, 153 Mass. 6. If the papers in an appealed case are copies of the plead- ings, the report of an auditor, and the judgment of the court, the report of the auditor is not properly before the appellate court, unless it appears in some way that it was made a ^ There can be no appeal in an action at common law from a single justice of the Supreme Judicial Court to the full bench, Unless the case is reserved, the aggrieved party must proceed by exceptions. Cowley v. Train, 124 Mass. 226. 366 MASSACHUSETTS PRACTICE. part of the record in the court below. Davis v. Gay, 141 Mass. 531. In an appeal from the judgment of the Superior Court on a demurrer,^ the objection that a signature to a certain instru- ment was not under seal, such objection not being specified in the demurrer, is not open. Goodyear Dental Vulcanite Co. V. Bacon, 148 Mass. 542. An appeal may be from a judgment dismissing the action. Bowler v. Palmer, 2 Gray, 653 ; or upon an award, Sheels v. Ghickering, 7 Met. 316 ; or upon an agreed statement of facts, Furlong v. Leary, 8 Cush. 409.^ The submission of a case by the parties on an agreed state- ment of facts is a waiver of all objections to the pleadings or form of the action, unless such objections are expressly reserved ; and the question ordinarily is, whether the plaintiff can recover upon the facts stated, in any form of action at law or under any form of declaration. Ellsworth v. Brewer, 11 Pick. 316; Kimball y. Preston, 2 Gray, 567; Gushing v. Kenfield, 5 Allen, 307 ; West Boxbury v. Minqt, 114 Mass. 546. 1 " The usual and better practice is to bring to this court questions of law arising upon demurrers in the Superior Court by appeal, and not by exceptions. But by the Pub. Sts. o. 153, § 8, ' in all cases, civil and criminal, ... a party aggrieved by an opinion, ruling, direction or judgment of the court in matters of law may allege exceptions thereto,' upon which the matter may be further heard. An appeal from a ruling or judgment upon a demurrer in an action at law in the Supreme Judicial Court will not lie, and the remedy for error in such a case is by exception only. Cowley v. Train, 124 Mass. 226." Per Knowlton, J., in McCallum V. LamUe, 145 Mass. 234, 236. * An order or judgment of the Superior Court refusing to grant a peti- tion for the removal of an action to the Circuit Court of the United States is not a final judgment disposing of the whole case in the Superior Court, and the remedy for one aggrieved by such an order is by excep- tion. But an order allowing such a petition, and removing the cause, does dispose of the whole case so far as the Superior Court is concerned, and from such an order, made upon allegations of fact as they appear of record as a final judgment in the case, an appeal lies to the Supreme Judicial Court. Ellis v. Atlantic If Pacific R. R., 134 Mass. 338, and cases cited. APPEALS, EXCEPTIONS, AND REPORTS. 367 See McBae v. Locke, 114 Mass. 96 ; Folger v. Columbian Ins- Co., 99 Mass. 267 ; Fay v. Duggan, 135 Mass. 242 ; McCue v. Whitwell, 156 Mass. 205. Where an " agreed statement of evidence " is submitted to the Superior Court the facts stated in which are to be treated as evidence from which inferences of fact may be drawn, the only matter of law apparent on the record is the question whether the judgment is warranted by the evidence. Ingalls V. Eohls, 156 Mass. 348. It seems that, if it is desired to present to the full court the question of law whether an agreed statement of facts will warrant a particular inference of fact, this should be done by an exception taken at the hearing below. See Band v. Hanson, 154 Mass. 87, 91, and cases cited ; and see Exceptions, fost. The statement of a case by the parties will be discharged if it states evidence merely and not facts, or if it fails to set forth all the facts necessary to determine the rights of the parties in the subject-matter of the controversy. The case will then stand for further proceedings in the Superior Court. Powers V. Provident Institution for Savings, 122 Mass. 443 ; Morse v. Mason, 103 Mass. 560. The agreement must fix the amount of damages or provide for their assessment by the court, for the judgment in the Superior Court is not final, and is therefore subject to appeal, if the question of damages remains open. McAneany v. Jewett, 10 Allen, 151 ; Riley v. Farnsworth, 116 Mass. 223. Parties in an action submitted to the determination of the court may agree that the judgment therein shall be final. Pub. Sts. c. 152, § 14. EXCEPTIONS. On motion for a new trial, and in all cases in the Supreme Judicial Court or the Superior Court, except as hereafter stated, whether the proceedings are according to the course 368 MASSACHUSETTS PRACTICE. of the common law or otherwise, a party aggrieved by an opinion, ruling, direction, or judgment of the court in matters of law not resting in the discretion of the presiding judge, may allege exceptions thereto.^ Pub. Sts. c. 153, §§ 8, 11, 12. In trials had before three justices of the Superior Court without a jury, under the provisions of St. 1892, c. 227, there is no exception or appeal in matters of law, but a case may be reported by a majority of the sitting justices to the Supreme Judicial Court. St. 1892, c. 227, § 2. In the conduct of trials, and in interlocutory proceedings generally, there are many matters that rest in the discretion of the presiding judge, whose decision therein cannot be revised. Among such matters are decisions as to the allow- ance of amendments, the continuance of actions, the order of the admission of testimony, the extent to which cross-exami- nation shall be allowed on collateral matters, the recommittal of an auditor's report, and the like. See Chap. VI., ante. Decisions of a justice of the Supreme Judicial Court or the Superior Court upon pleas or answers in abatement for any cause whatever, or on motions to dismiss for defect of form in process, are final on the questions raised, and cannot be revised by the full court on appeal, bill of exceptions, or report of the judge. Pub. Sts. c. 153, § 8; c. 162, § 10; Hamlin v. Jacobs, 99 Mass. 500, and cases cited ; Guild v. Bonnemort, 156 Mass. 522. See Pub. Sts. c. 167, § 13, Part II. post. This rule applies to a judgment on a demurrer to a plea in abatement, although, as a rule, judgments on de- murrers are siibject to appeal. Wildes v. Marshall, 117 Mass. 311. And when an objection to a defect in process which could properly be raised only by plea in abatement or motion 1 No one but a party to a suit has a right to allege exceptions. An amicus curice is heard by the leave and for the assistance of the court, but he has no power to carry the case from one court to another, or from a single justice to the full court, by exception, appeal, or writ of error. Martin v. Tapley, 119 Mass. 116. APPEALS, EXCEPTIONS, AND REPORTS. 369 to dismiss is made without objection by demurrer, the decision is nerertheless final. Smith v. Dexter, 121 Mass. 597. Exceptions must be taken, but need not to be alleged in writing, before the jury retires.^ They are required to be reduced to writing, filed with the clerk, and notice thereof given to the adverse party before the adjournment without day of the sitting in which the exceptions are taken, and within three days after the verdict in, or other disposition of, the case, or after the opinion, ruling, direction, or judgment excepted to is given, if in a case not on trial, unless further time be allowed by the court for good cause shown. Pub. Sts. c. 153, § 8 ; Rule XLIX. Sup. Ct. . The court may require a party who has filed exceptions and a motion for a new trial embracing the same questions of law, to elect upon which he will proceed, and may properly refuse to hear the motion unless the party consents to waive his exceptions. Sylvester v. Mayo, 1 Cush. 308. But the ques- tion whether the fact that the party, under such circum- stances, proceeds to argue his motion, is a waiver of the exceptions, is largely one of discretion with the presiding judge. And where the argument Was made at the suggestion of the judge, who overruled the motion and allowed the bill of exceptions, it was held that, by arguing his motion, the party did not waive his exceptions. Anthony v. Travis, 148 Mass. 53. The notice of the filing of exceptions required to be given to the adverse party is not dispensed with by an extension of the time for filing the exceptions, if the party entitled to the notice raises the objection before the allowance of the excep- tions and does not waive the omission. Purcell v. Boston, Hali- fax & Prince Edward Island Steamship Line, 151 Mass. 158. In actions tried without a jury, it is the duty of the clerk to notify the parties when a decision is made ; and exceptions may be filed within three days after such notice is received. 1 As to the time and manner of saving exceptions, see p. 279 ante. 24 370 MASSACHUSETTS PRACTICE. But the court may allow further time within which to file the exceptions. Pub. Sts. c. 153, § 9. Application for an extension of time must be made before the time allowed by law has expired ; and when no exceptions have been filed nor application made for an extension of time, until after the final adjournment of the sitting, the court has no authority to allow exceptions filed and presented subse- quently, unless by the consent of the adverse party. Commo-nr wealth V. Greenlaw, 119 Mass. 208. The requirements as to filing and giving notice are for the benefit of the adverse party, and may be waived by him ; but in the absence of such waiver there must be a strict compli- ance with the terras of the statute. Barstow v. Marsh, 4- Gray, 165 ; Conway v. Callahan, 121 Mass. 165 ; Gooney v. Burt, 123 Mass. 679 ; Hale v. Bioe, 124 Mass. 292. Formerly it was necessary for the excepting party to pre- sent the exceptions to the presiding justice within the three days and before the end of the term ; but by Pub. Sts. c. 153, § 8, it was made the duty of the clerk so to present them im- mediately on filing. As the excepting party has no control over the performance of tKis duty, it is apprehended that the want of a strict compliance with the direction of the statute in this particular will not, in the absence of any other objec- tion, deprive the excepting party of the right to have his exceptions allowed. See Browne v. Sale, 127 Mass. 158, 161. If upon examination the exceptions are found to be con- formable to the truth, it is the duty of the justice to make and sign a certificate allowing them, but the adverse party is entitled to an opportunity to be heard concerning the allow- ance, and it seems that any objection based on a want of due notice or proper filing should be urged at this stage of the proceedings. For if it appears that the statute has not been complied with in these respects, and there has been no waiver, the judge has no right to allow the bill ; and in case he allows it against the objection of the adverse party, it will be dis- APPEALS, EXCEPTIONS, AND KEPORTS. 371 missed in the Supreme Judicial Court, if a motion to that end is seasonably made. Conway v. Callahan, 121 Mass. 165 ; Cooney v. Burt, 123 Mass. 579 ; Hale v. Bice, 124 Mass. 292. The presiding judge may, however, with the consent of the adverse party, allow exceptions which he is satisfied are true, although they were not filed within the time specified. Walker V. Moors, 122 Mass. 501. The time of filing must be ascertained from the docket and files of the court, and the statements of the certificate as to whether proper notice was or was not given are conclusive. If, however, the decision upon these points involves any ques- tion of law, such question may be presented by a certificate allowing the exceptions, subject to the opinion of the Supreme Judicial Court upon that question of law; or the decision upon such question of law, if adverse to the excepting party, may, perhaps, itself be revised on exceptions. Spofford v. Loveland, 130 Mass. 6. If the certificate is silent upon the subject, it will be pre- sumed that notice was duly given to the adverse party and that he attended at the hearing upon the allowance of the exceptions. These facts need not appear of record. Browne v. Hale, 127 Mass. 158. But the filing and any extension of time must be proved by the record. Doherty v. Lincoln, 114 Mass. 360. The notice should be in writing, and service thereof may be made personally upon the adverse party or his attorney, or by depositing the notice in the post-office directed to the party or attorney, postage prepaid. Such service may be proved by the affidavit of the party giving the notice, or of his attorney, with a copy of the notice annexed. Rule XXXI. Sup. Ct. ; Blair v. Laflin, 127 Mass. 518. When exceptions are alleged or an appeal is taken in the course of a trial, the court may, when it is deemed just to do so, give leave to the excepting party to enter the verdict or judgment, or to alter or modify the same, or to increase or 372 MASSA.CHUSETTS PRACTICE. reduce the damages, in such manner as the Supreme Judicial Court sitting in banc shall determine. In such cases the bill of exceptions, report, or (on appeal) the record, should state the leave given, and the full court will make orders accordingly. Pub. Sts. c. 153, § 14 ; Dittmar v. Norman, 118 Mass. 319. In practice, the parties by themselves not infrequently settle the exceptions, and the judge being apprised of their agreement allows the exceptions upon examination and with- out a hearing, unless it appears to him that some alteration is necessary in order to present his rulings ■ in their true light. When both parties have -alleged exceptions, one bill will ordinarily be sufficient for both, or it may be deemed more convenient to present the exceptions in separate bills. When exceptions are taken to orders passed by two judges at different stages of the same case, there should be two separate bills. Safford v. Knight, 111 Mass. 281, 287. Ex- ceptions allowed in a case which is afterwards reserved or reported should not be stated in a separate bill, but should be incorporated into the report. Aldrich v. Boston & Worcester B. B. Co., 100 Mass. 31 ; Dorr v. Tremont National Bank, 128 Mass. 349, 356 ; Taylor v. Taunton, 113 Mass. 290. If but one party excepts and the other party submits to the judge at the hearing on the allowance of the exceptions a draft of a bill of exceptions, the latter is deemed to be merely by way of suggesting amendments of the exceptions presented by the aggrieved party, and is not itself a bill of exceptions which it is the duty of the judge to allow, or the truth of which can be established by petition to the Supreme Judicial Court. Browne v. Sale, 127 Mass. 158. The exceptions are required to be restored to the files of the court within five days after they are presented to the judge, with a certificate under his hand either allowing or dis- allowing the bill. But if the judge thinks that further time APPEALS, EXCEPTIONS, AND KBPOETS. 373 is necessary for the examination or hearing upon the bill of exceptions, more time may be taken, not exceeding ten days, unless for reasons rendering more delay necessary, which he is required to certify on restoring the papers. Pub. Sts. c. 153, § 10. Failure on the part of the judge to perform this duty will not deprive the excepting party of his right to prosecute exceptions which have been in fact allowed and restored to the files. Browne v. Hale, 127 Mass. 158. A case may be continued generally or nisi for the allowance of exceptions, and the questions raised by them cannot be considered "matter of record" until the bill is allowed. Boyle v. Burnett, 9 Gray, 251. If a party, after taking exceptions, accepts an order granting a new trial, he will be considered as having waived his excep- tions, although by the order only a certain specified question is left open. Seccomb v. Provincial Ins. Co., 4 Allen, 152. When the death or resignation of the judge before whom the exceptions were alleged intervenes before the allowance and return of the bill, a new trial may be granted, or the excepting party may resort to what is termed a " cumbrous and inconvenient remedy," i. e., a petition to establish the truth of his exceptions in the manner hereafter described. Borrowscale v. Bosworth, 98 Mass. 34; Wamesit Co. v. Lowell & Andover B. B. Co., 130 Mass. 455. The death of a party after exceptions have been duly taken or the case reserved by the court does not prevent the case from proceeding to a final determination of the questions of law involved, and if necessary, final judgment will be ordered nunc pro tunc. Kelley v. Biley, 106 Mass. 339 ; Tapley v. Martin, 116 Mass. 275 ; Martin v. Tapley, 119 Mass. 116, 119. As to the Form of the Bill, A bill of exceptions should be so framed as to state the nature, of the case, the questions of law that have been raised, and so much only of the facts or the evidence as may be 374 MASSACHUSETTS PRACTICE. necessary to present those questions to the court. It is not sufficient to state merely the rulings requested and those actu- ally given, without stating facts or evidence to show that the rulings requested were • applicable ; nor should the charge be set forth at length without stating the particular rulings objected to. GanfieLdv. Canfield,112 Mass. 233 ; Burt v. Mer- chants' Ins. Co., 115 Mass. 1 ; Churchill v. Palmer, 115 Mass. 310 ; Curry v. Porter, 125 Mass. 94 ; Hunting v. Downer, 151 Mass. 275. It is incumbent upon the excepting party to make it appear in the bill of exceptions, that the objections relied on were duly raised in the Superior Court, and that the action of the court was both erroneous and prejudicial to him. Fuller v. Buby, 10 Gray, 285 ; Eastman v. Crosby, 8 Allen, 206. Thus it is lield that a party has no ground of exception to rul- ings by which he is not injured, Whiteside v. Brawley, 152 Mass. 133 ; nor to a refusal to give an instruction upon a question not in issue, Lindsey v. Leighton, 150 Mass. 285; nor to a refusal to give an instruction in terms, if the same has already been given in substance. Weld v. Brooks, 152 Mass. 297 ; Merrigan v. Boston & Albany B. B., 154 Mass. 189 ; Hudson v. Marlborough, 154 Mass. 218. See Troeder v. Hyams, 163 Mass. 536. Objections not specifically called to the attention of the court at the trial will not be consid- ered at the argument upon the exceptions. Holmes v. Turner's Falls Co., 150 Mass. 535 ; Horrigan v. Clarksburg, 150 Mass. 218; Ford v. United States Mutual Accident Belief Co., 148 Mass. 153.1 Thus, the objection that a defence which has been ' " Questions upon which no ruling was asked or exception taken at the trial cannot be considered upon 'a defendant's bill of exceptions, un- less it appears, upon the conceded facts, that there is an objection to the plaintiff's recovery which cannot be removed by further proof, or unless it appears that, from a mistake, or misapprehension, or misapplication of legal principles, the case haa resulted in a mistrial." Lyon v. Proxity, 154 Mass. 488 (citing Slater v. Rawson, 1 Met. 450; Bond v. Bond, 7 Allen, 1; Draper v. Saxlon, 118 Mass. 427; Goodnow v, HiU, 125 Mass. 587). APPEALS, EXCEPTIONS, AND RBPOETS. 375 admitted without exception or objection in the court below is not open to the defendant under the pleadings cannot be taken for the first time on the hearing of exceptions, even if the pleadings are by the bill made part of the case. Jones v. Sisson, 6 Gray, 288. Questions upon the pleadings must be raised in the court below, so that there may be an oppor- tunity to amend, and cannot be urged for the first. time in the Supreme Court upon a bill of exceptions. Wall v. Provident Institution for Savings, 3 Allen, 96 ; Burnett v. Smith, 4 Gray, 50 ; Batchelder v. Batchelder, 2 Allen, 105. No exception can be supported to the exclusion of testi- mony the bearing of which upon the issue the bill does not disclose, Deming v. Darling, 148 Mass. 504 ; or if it nierely discloses that such testimony was excluded upon one ground only, and does not show that it was material or important, the excepting party, at the argument, will not be permitted to show that such testimony was material upon other grounds. Hathaway v. Tinkham, 148 Mass., and cases cited. If the exception, is to the admission of a particular ques- tion, the bill should set forth what the answer to' the question was, Cecconi v. Rodden, 147 Mass. 164 ; Farnum v. Pitcher, 151 Mass. 470 ; Francis v. ^osa, 151 Mass. 532; and if to the exclusion of the question, it must appear what the an- swer of the witness would have been. Warren v. Spencer Water Co., 143 Mass. 155, 164; Crowley v. Appleton, 148 Mass. 98 ; Gilfillan v. Mawhinney, 149 Mass. 264. So a bill of exceptions which states that a certain conversation was admitted in evidence, but does not show what the conversa- tion was, does not state any ground of exception. O'Brien v. Murphy, 158 Mass. 417. If evidence proffered is objected to and excluded, and an exception is taken to its exclusion, whereupon the objection is withdrawn and the judge therefore admits the evidence, the party proffering it then declining to introduce it loses his exception. Boberts v. Boston, 149 Mass. 346. 376 MASSACHUSETTS PKACTICE. If a bill of exceptions, which recites that certain instruc- tions were requested but not given, fails to show either that no instructions were given on the points embraced in the request,' or that correct instructions on such points were not given, but introduces its statement of the charge by reciting that " the judge instructed the jury, among other things, as follows;" it will be presumed that instructions, not stated, were given upon the points to which the requests relate, and that such instructions were correct. Linton v. Allen, 154 Mass. 432. A finding at a trial in accordance with the contention of the excepting party will be taken to be correct as against him at the argument on the exceptions. Downs v. Bowdoin Square Baptist Society, 149 Mass. 135. A party is not prejudiced by the exclusion of evidence tending to establish a point afterwards ruled in his favor. South Scituate v. Scituate, 155 Mass. 428. It has been held that if an objection to the admission of testimony was merely general, an exception to such admis- sion will not be sustained upon a technical ground not dis- closed at trial, and which apparently was not in' the mind of the presiding judge or of the adverse counsel, and which might have been cured, had attention been called to it. New Hampshire Fi/re Insurance Co, v. Healey, 151 Mass. 537 ; Bolan V. Alley, 153 Mass. 380. By the application of the rule laid down in these cases, it would seem to be the safe course for the party objecting to the admission of testi- mony in the trial court, to state fully the ground of objec- tion in case he intends to except to a ruling against his objection. An objection to a ruling, that an action cannot be main- tained; under the declaration, is removed by the allowance of an amendment to the declaration. Birnhawm v. Grownin- shield, 13T Mass. 177. The objection that trojer is not the proper remedy to re- APPEALS, EXCEPTIONS, AND EEPOETS. 377 cover money intrusted by the plaintiff to the defendant for the payment of the plaintiff's debts and appropriated by the defendant to his own use, is waived by a default, and is not the subject of exception at a subsequent hearing on the assessment of damages. lasigi v. Shea, 148 Mass. 538. When the case is tried by a judge without a jury, it is very important that the bill of exceptions should show clearly what was passed upon as fact and what was ruled as law. Manning V. Lowell, 130 Mass. 21, since the court will not consider rul- ings reque'sted and refused by the presiding justice, if these are rendered immaterial by his findings of fact. Mcintosh v. Hastings, 156 Mass. 344. It is said to be well settled that even where the evidence upon which» they are based appears in the bill of exceptions, findings of fact made by the court below upon a trial without a jury, are not open to revision. The Supreme Judicial Court may however determine upon excep- tions or other suitable proceedings, whether the findings of fact below were warranted, under the rules of law applicable to the case, by the evidence before the trial court. Schendel V. Stevenson, 153 Mass. 351, and cases cited ; and see Band V. Eamon, 154 Mass. 87, 91. No exception lies when a judge who tries a case without a jury refuses to state all the considerations which entered into his assessment of damages, no request having been made for rulings on that subject. Chatham Furnace Co. v. Moffatt, 147 Mass. 403, Petition to establish the Truth of Exceptions. If the justice disallows or fails to sign and return the bill of exceptions, or alters any statement contained in it, either party who is aggrieved may file in the Supreme Judicial Court his petition setting forth the grievance and praying for leave to establish the truth of the exceptions presented by him; and if the truth of the exceptions is established, they will be heard, and the same proceedings will be had, as if they had 378 MASSACHUSETTS PRACTICE. been duly signed and brought up to the court with the peti- tion. Pub. Sts. c. 153, § 13 ;i St. 1882, c. 239. The Rules of the Supreme Judicial Court (Rule XXX., pro- vide 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, verified 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 h^s attorney of record. And no party shall be allowed to establish the truth of any such allegations in this court, if he shall have failed to comply with the requisitions herein prescribed." The affidavit must be to the truth of the allegations in the petition, and not merely to the truth of the exceptions. De- fects of this kind cannot be cured by oral testimony nor by a new affidavit made after the expiration of the twenty days. Tufts V. Newton, 117 Mass. 68 ; ^ Commonwealth v. Marshall, 15 Gray, 202. An affidavit that the statements of the peti- tion are true " to the best of the knowledge, information, and belief" of the affiant, is insufficient, and a petition accompa- nied by such an affidavit may be dismissed. Hadley v. Wat- son, 143 Mass. 27. This remedy is applicable to cases in which the justice has failed to sign and return the exceptions on account of physical 1 The action of a judge of the Superior Court in disallowing exceptions may be revised, in matters of law apparent on the record, by appeal or writ of error ; in matters not appearing of record, the remedy is by bill of exceptions. See Tufts v. Newton, 119 Mass. 476. 2 In this case the affidavit by the attorney of the excepting party stated that "the foregoing exceptions by him subscribed are true." The attor- ney asked that, if the affidavit was not sufficient, he might have leave to amend the record by adding a statement that he made oath that the al- legations of the petition were true, which, he said, was the oath that was in fact made ; but the court refused the request. APPEALS, EXCEPTIONS, AND REPORTS. 379 or mental disability, or death. Under such circumstances 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 such exceptions ; and the court may entertain the application and hear the exceptions when established, as in cases otherwise provided for by the statutes and rules of court. St. 1882, c. 239. What is required to be set forth in the petition as the grievance " consists of a statement of the exceptions that were presented in writing to the judge after being filed according to the statute, and an allegation that they were disallowed or not signed and returned, though stated truly." Bottum v. Fogle, 105 Mass, 42, 43. See Whitford v. KnowUon, 6 Allen, 557. The right to^prove exceptions that have not been .allowed is carefully guarded, because it is to be presumed that the judge who presides at the trial not only understands his rulings and the exceptions that are taken to them, but will impartially state them. In view of the possibility of error the right of the excepting party to prove his exceptions is reserved and provided for, but, in order to avail himself of it, he must comply strictly with the provisions of the statute and the rule of court as a condition precedent to the right to make the proof; and this is the more important since the judge whose statements are in some cases to be contradicted is not a party to the proceedings on the petition and is not supposed to be present at the hearing. Phillips v. Hoyle, 4 Gray, 668 ; Priest V. Groton, 103 Mass. 530 ; Tufts v. Newton, 117 Mass. 68 ; Brown v. Gilman, 115 Mass. 56 ; Fletcher y. Sibley, 124 Mass. 220. On a petition to prove exceptions the Supreme Court will only consider whether the truth of the bill of exceptions actually and seasonably filed by the aggrieved party is estab- lished ; but in doing this, however, slight errors may be cor- 380 MASSACHUSETTS PRACTICE. rected, and details may be added which are necessary in order properly to present the exceptions relied on. Morse v. Wood- worth, 155 Mass. 233.1 Unless there has been a strict observance of the preliminary steps, the petition will be dismissed ; and after the petition is entered, it may be dismissed for want of prosecution.^ Hol- hrooh V. Haney, 124 Mass. 356. The practice is to refer the petition to a commissioner to hear the parties and report to the court the facts bearing upon the question whether the truth of the exceptions is established. It is the petitioner's duty to apply to the commissioner to have a day appointed for a hearing, and where the petitioner neg- lected to do this for sixteen months, no reason appearing for the neglect, the petition was dismissed on motion. Freeman V. Griggs, 116 Mass. 302. When the commissioner is in doubt whether upon the facts proved before him the petitioner is entitled to the benefit of his exceptions, the proper course is for him to report the facts found by him, and thus submit the questions of law arising thereon. CWfow v. /Sears, 112 Mass. 299. Thus, in most cases, every question of law that either party desires to argue will be presented to the full court ; but if, at the hearing before the commissioner, there is a conflict of testimony or a contro- versy as to inferences of fact to be drawn from the evidence, ^ A defendant filed a bill of exceptions which the judge of the Superior Court disallowed as not being conformable to the truth, and his certificate stated in detail the amendments which he deemed necessary to make the bill so conformable. The defendant filed his petition to establish the truth of exceptions, and a commissioner was appointed who reported in the defendant's favor. The defendant assented to the amendments sug- gested in the judge's certificatej but the commissioner failed to incorpo- rate them in the bill. At the hearing before the full court, the defendant consented to have them so incorporated. It was held that it was the duty of the commissioner to consider the statements of the certificate, and the bill being amended in conformity thereto was established without a recommittal. Commonwealth v. Joslin, 168 Mass. 482. ^ In Lyons v. Cambridge, 131 Mass. 571, the court refused to dismiss a petition which was irregular only by reason of surplusage and irrelevancy. APPEALS, EXCEPTIONS, AND REPORTS. 381 it is the right of either party to have the judgment of the full court thereon, and, if necessary, the report will be recom- mitted in order that the commissioner may report the evi- dence upon which his findings were based. Ela v. CocJcshott, 119 Mass. 416. The certificate which the presiding judge is required to make in writing when disallowing any part, or all, of a bill of exceptions is prima facie evidence that the exceptions pre- sented are not conformable to the truth, but this presumption may be controlled by other evidence. Bottum v. Fogle, 105 Mass. 42. The remedy, is limited to exceptions taken at the trial, reduced to writing, and seasonably filed and presented to the presiding justice. The right of the excepting party to argue an exception duly alleged will not be defeated by mere verbal errors or unimportant differences in the form of statement ; literal accuracy is not insisted upon, but the substantial truth of the exceptions alleged and tendered must be proved. Joannes v. Underwood, 6 Allen, 241 ; Lee v. Gibbs, 10 Allen, 248 ; Bottum v. Fogle, 105 Mass. 42 ; Marhey v. Mutual Benefit Ins. Co., 118 Mass. 178 ; Morse v. Woodworth, 155 Mass. 233. If the bill as tendered to the presiding judge contains several distinct and independent exceptions clearly and separately stated, one or more of them may be established and argued, although the others are not proved as alleged, or are waived by the excepting party. Commonwealth v. Marshall, 15 Gray, 202. When, however, true and false statements are blended or intermingled in the exceptions as tendered, the presiding judge is under np obligation to sift out the truth from the falsehood, and may properly disallow the whole bill as not conformable to the truth. Sawyer v. Yale Iron Works, 116 Mass. 424. If the exceptions alleged do not state with substantial accu- racy the rulings excepted to and all the material evidence to which they applied, so as to present the same questions, in the 382 MASSACHUSETTS PEACTICE. same aspect as in the court below, the petitioner will not be heard on the exceptions, either in the form in which they were alleged or in the form in which it is shown that they should have been alleged, — not upon the exceptions alleged because they are not proved, nor upon those proved because they were not alleged. Cullen v. Sears, 112 Mass. 299 ; Crow v. Stowe, 113 Mass. 153 ; Glidden v. Child, 122 Mass. 433 ; Gage v. Campbell, 131 Mass. 566 ; Ferguson v. Dean, 132 Mass. 183 ; Ma V. Cockshott, 119 Mass. 416. If a party files a petition for leave to establish the truth of exceptions differing from those allowed, but proceeds to argue the exceptions allowed, he will be taken to have waived his petition. Moore v. Quirk, 105 Mass. 49. The question wliether the exceptions or any of them have been established is a question of law within the exclusive jurisdiction of the full court. In practice, it is commonly found most convenient to argue this question in connection with the argument upon the exceptions as proved before the commissioner, but the questions may, with the sanction of the court, be considered separately. Cullen v. Sears, 112 Mass. 299 ; Markey v. Mutual Benefit Ins. Co., 118 Mass. 178. A party, after failing for any reason to establish the truth of exceptions disallowed, may argue the exceptions that were allowed. Phillips v. Hoyle, 4 Gray, 568. REPORTS. Questions of law, whether arising upon a trial or other pro- ceeding, or upon a motion for a new trial on account of an opinion, direction, order, or refusal of a single justice of the Supreme Judicial Court in matter of law, may be reserved by the justice for the consideration of the full court, in which case the justice is required to report so much of the case as is neces- sary for understanding the question. Pub. Sts. c. 150, § 8. The power thus given to a single justice to reserve ques- tions of law is said to be " a power resting in the exercise of APPEALS, EXCEPTIONS, AND KEPOETS. 383 a sound discretion, which the whole court will in no degree revise or control. Nor ought it to be used unless the ques- tions 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 a nature to render such a mode of determining the questions of law involved in it expedient or necessary for the final disposition of the cause. In all other cases the right to allege and file exceptions to any ruling, order, or direction of the court, affords ample opportunity to all parties to obtain the adjudication of the court of last resort on every question which may be material to the determination of their rights." Bigelow, C. J., in Phillips v. Soule, 6 Allen, 150. A single justice, either of the Supreme Judicial or the Su- perior Court, may, at any time after verdict or decision by the court and before final judgment, report the case for determination by the Supreme Judicial Court. Pub. Sts. c. 153, § 6. The power to reserve cases on report is limited to questions of law, and when the case is tried without a jury, the decision of the presiding justice is final upon all questions of fact. Jamaica Pond Aqueduct Corp' ny. Chandler, 9 Allen, 159. When a trial is had without a jury before three justices of the Superior Court, no exception or appeal is allowed, but a majority of the sitting justices may report the case to the Supreme Judicial Court. St. 1891, c, 227. The authority to report any ruling in matter of law dis- tinctly objected to at the trial is not subject to any such limit in point of time as the filing and presenting of exceptions, and may be exercised whether the party aggrieved has or has not formally alleged and duly presented exceptions to the ruling objected to. The report may be filed at any time dur- ing the sitting at which the verdict is rendered, and where a continuance nisi is entered, it seems that the report may be filed on the first day of the next sitting. Beed v. Home Savings Bank, 130 Mass. 443. 384 MASSACHUSEITS PRACTICE. The record must show either a verdict or an equivalent finding of the judge before any question of law can be re- ported. Terry v. Brightman, 129 Mass. 535. And since this form of remedy extends only to questions of law affecting the rights of the parties to the subject-matter of the controversy, all questions of fact or discretion must be finally determined in the court below, so that the decision of the Supreme Judi- cial Court on the questions raised may, in one alternative at least, be followed by a judgment that will be a final deter- mination of the whole case ; otherwise, the report will be dis- missed. McCormich v. Carroll, 103 Mass. 151 ; Htibner v. HoffmarhylQQ Mass. 346 ; Murphy v. Boston, Clinton, & Fitch- burg B. B., 110 Mass. 465 ; Nolle v. Boston, 111 Mass. 485. A case tried upon an issue raised by an answer in abate- ment cannot be reported, because the decision of the Superior Court is fm&l, Stachpole v. Hunt, 9 Allen, 539; nor cases tried before a sheriff's jury, for here the remedy is by appeal or bill of exceptions. Taylor v. Taunton, 113 Mass. 290. A report should be so framed by the presiding judge, or by counsel with his approval, as to state the nature of the case, the questions of law intended to be reserved, and so much only of the facts or the evidence as may be necessary to pre- sent those questions to the court. Churchill v. Palmer, 115 Mass. 310 ; Wright v. Quirh, 105 Mass. 44. When a judge reports a case which has been submitted to him by the parties to find the facts, his finding of a material fact upon conflicting evidence is not open to revision in the Supreme Judicial Court, although he reports all the evidence. Sheffield v. Otis, 107 Mass. 282. ENTRY OP QUESTIONS OP LAW. The copies and papers relating to questions of law arising either in the Supreme Judicial or the Superior court upon appeal, bill of exceptions, report, or otherwise, are required to be prepared by the clerk, and must thereupon be transmitted to APPEALS, EXCEPTIONS, AND REPORTS. 385 and entered in the law docket of the Supreme Judicial Court for the proper county as soon as may be after such question of law is reserved and duly made matter of record in the court where the action is pending. The case itself is not transferred by these proceedings, but merely the question or questions to be determined. Pub. Sts. c. 153, § 15 ; Common- wealth V. Scott, 123 Mass. 418. The effect of the statute is that questions of law must be transmitted and entered within a reasonable time after they become matter of record in the court in which they are re- served. Priest V. Groton, 103 Mass. 530. What is to be deemed a reasonable time must depend in some degree upon the circumstances. It was held that exceptions allowed on the last day of a term of the Superior Court and entered twenty-seven days afterwards, and more than a month before the next law term at which in the usual course they would be argued, were seasonably entered. Priest v. Groton, 103 Mass. 530. Subsequently it was decided that where six months had elapsed after the allowance of the exceptions, and four or five months after the final adjournment of the term at which they were allowed, the excepting party was not entitled, as matter of right, to enter them. Bentley v. Ward, 116 Mass. 383. In the case last cited, the court, after stating the decision in Priest y. Groton, ubi supra, qualifies it by saying that " as to exceptions allowed nearer the beginning of a regular term, or usual session for the argument of questions of law from the county in which they arise, more prompt action might be required of the excepting party," and the following rule was laid down by Gray, C. J. : " We are of opinioii that in any case in which no special circumstances are shown, exceptions not entered in this court within a month after the final adjournment of the term at which they were allowed cannot be deemed to be entered ' as soon as may be,' as required by the statute." See Browne v. Hale, 127 Mass. 158. 25 386 MASSACHUSETTS PRACTICE. Exceptions cannot be entered upon the docket of the full court until the record shows that the case has been fully dis- posed of. Hence it follows that the trial and determination of questions of fact go on, notwithstanding the taking and allowance of exceptions ; and before an appeal can be entered in the Supreme Judicial Court, it must appear by the record that all issues of fact have been determined, damages assessed, and a judgment rendered disposing of the whole case in the Superior Court. If the judgment appealed from was inter- locutory, or anything remains to complete the entry of judg- ment below, the appeal or exceptions will be, dismissed on the ground that they were prematurely entered. Bennett v. Clemenoe, 3 Allen, 431 ; Maker v. Dougherty, 11 Gray, 16 ; Commonwealth v. Gloucester, 110 Mass. 491, 496 ; Biley v. Farnsworth, IIQ Mass. 228 ; Eogan, v. Ward, 117 Mass. 67; West V. Piatt, 124 Mass. 353 ; Harding v. Pratt, 119 Mass. 188; Boyce v. Wheeler, 133 Mass. 554; Elliot v. Elliot, 133 Mass. 555. Questions of law arising in the Supreme Judicial or the Superior court, when sitting for the counties of Berkshire, Franklin, Hampshire, Hampden, Worcester, Plymouth, Bristol, Dukes County, Nantucket, or Essex, each of which has one law sitting every year, should be entered at the law sitting of the Supreme Judicial Court next to be held for the county in which the question arises. Pub. Sts. c. 150, § 31. Questions of law arising in the counties of Barnstable, Middlesex, Norfolk, and Suffolk, and also those arising in other counties where special provisions are not made there- for, are required to be entered at the law sitting for the Com- monwealth, which is held at Boston on the first "Wednesday of January in each year, and may be adjourned from time to time to places and times most conducive to the despatch of busi- ness and the interests of the public. Ibid. § 30. See p. 25, ante. Questions arising in counties other than Barnstable, Middle- sex, Norfolk, or Suffolk, may by consent of all the parties APPEALS, EXCEPTIONS, AND REPORTS. 387 to the case, be entered and heard at the law term for the Commonwealth. Pub. Sts. c. 153, § 16. And it is provided by St. 1892, c. 127, that the full court shall have jurisdic- tion of all questions of law and of all cases and matters at law or in equity, civil or criminal, arising in any other county than that in or for which it is sitting, and which might properly come before and be heard or determined by the full court sitting for such otlier county ; and upon the application of one or more of the parties a majority of the justices of the full court may, in their discretion, order any such ques- tions of law, or case, or matter, to be entered and heard bj'' the full court sitting in any county, or at Boston for the Commonwealth.^ If, in any action or proceeding, tried by either court in one of the counties other than those named in the last paragraph, a question of law is saved or arises for the determination of the full court, and the presiding judge deems the exception or appeal frivolous, or intended for delay merely, or that the interests of the parties or the public require a more speedy determination of the questions raised than can be reached in the terms established for the county in which the trial is had, it is his duty so to certify, and to order the questions of law to be entered and heard at a sitting held in Boston ; and all the other proceedings are the same as if the questions had arisen in one of the counties for which that sitting is regularly held. Pub. Sts. c. 153, § 16. If upon the hearing of an appeal or exceptions by the full court, it appears that the same are frivolous, immaterial, or intended for delay, the court may, with or without a motion therefor, award against the appellant or excepting party double costs from the time when the appeal or exceptions were taken, and interest from the same time at the rate of 1 Questions of law reserved for the full court, on petition for certiorari or mandamus, may be heard and determined at any time in any county as justice shall seem to the court to require. Pub. Sts. c. 186, §§ 8, 13. 388 MASSACHUSETTS PEACTICE. twelve per cent, per annum on any sum which has been found due for debt or damage, 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 sxich additional costs and interest. St. 1883, c. 223, § 15. Pub. Sts. c. 150, § 14 ; Williams v. Greene, 2 Cush. 465 ; Carter v. Smith, 9 Cush. 321 ; Holbrook v. Eaney, 124 Mass. 356 ; Boswell v. Cutter, IIT Mass. 69. The question whether the exceptions are such as to war- rant the imposition of the statute penalty is determined by the court from the bill of exceptions, without evidence or argu- ment by either party. Blackington v. Johnson, 126 Mass. 21. If a question of law is duly entered, any security which has been taken in the case, whether by bond, attachnlent, or other- wise, stands as if no judgment had been rendered or exception taken until final judgment is entered in the case, unless exe- cution is awarded because the exceptions are deemed frivolous and intended for delay. Pub. Sts. c. 152, § 12. An issue of law joined in the Superior Court cannot be waived by consent of the parties after the appeal has been entered in the Supreme Judicial Court ; but the latter court may, for good cause shown, allow the parties to withdraw or amend their pleadings, and if the result is an issue of fact, the case must be remanded to the Superior Court for trial. No execution will be issued on the judgment appealed from, unless the appeal is waived, until the case is so remanded. Ibid. § 10. The copies which the clei:k is required to prepare and trans- mit are the following, viz. : one copy of every paper on file in the case, except papers used merely as evidence, and one copy of all papers made part of the case or referred to in the bill of exceptions or report, or so much thereof as neces- sary fully to present the question of law. These are for the use of the chief justice, and like copies must be furnished for the clerk of the Supreme Judicial Court. There must also be one copy of the bill of exceptions or report, or papers upon APPEALS, EXCEPTIONS, AND EEPOETS. 389 which the question of law arises on appeal, for each associate justice, and a like copy for each party and the reporter of decisions. Ibid. § 15. All copies for the court must be " written in a fair, legible hand, or printed, on paper of the usual quarto size, with a convenient margin." Rule XXXIX. Sup. Jud. Ct. If any original papers used in the trial of the cause are needed in the Supreme Judicial Court, they must be trans- mitted to the clerk of that court to be kept by him on file until the rescript in the case is sent down. Pub. Sts. c. 152, §15. The clerk prepares and transmits the papers ; but the stat- utes contemplate that the question shall be entered by the appealing or excepting party, or by the plaintiff in a case reserved or reported ; and the clerk of the Supreme Judicial Court is not bound to enter any case without payment of the entry fee.^ " In practice, the mere name of the case is often transmitted by the clerk of the other court to the clerk of this, and entered upon the law docket, without insisting upon previous payment of the fees for copies or entry, and the pa- pers themselves are not actually copied and transmitted for some time afterwards. This course of proceeding is found convenient by the clerks and the counsel, in the pressure of other business, and is open to no just objection, if the cases are seasonably entered, and the copies are completed and furnished to this court in time for the argument." Per Gray, J., in Priest v. Groton, 103 Mass. 530, 583. After exceptions have been allowed and entered, they can- not be altered by the judge who allowed them without the ^ The copies will be prepared when a request to that effect has been made at the clerk's office, and when ready, they will be delivered upon payment of the fees and expenses incurred in their preparation and trans- mission. Such expenses must be borne, in the first instance, by the party appealing, or by the plaintiff, in a case reserved or reported, and they will be taxed in the bill of costs of the prevailing party, if he has paid them. Pub. Sts. c. 152, -§ 15. 390 MASSACHUSETTS PKACTICE. permission of the full bench of the Supreme Judicial Court. But whenever it appears, on motion of either party, made to the full court before argument upon the bill of exceptions as allowed, that there is reason to believe there has been a mistake or omission in drawing up the bill of exceptions, especially when the judge makes a certificate to that effect, the argument upon the exceptions will ordinarily be post- poned, in order that there may be a hearing of both parties before the judge below on the proposed alteration ; and an amendment of the exceptions will be allowed, in accordance with the resulfof that hearing as certified by him. Ferry v. Breed, 117 Mass. 155 ; McCarren v. McNulty, 7 Gray, 139. But the rule thus stated does not contemplate the filing by the excepting party, by way of amending the original bill, of a substantially new bill, after the time prescribed by the stat- ute has expired. Arvilla v. Spaulding, 121 Mass. 505. In Canfield v. Canfield, 112 Mass. 233, a motion for post- ponement made by the excepting party was denied, because it appeared that he had insisted upon the allowance of the exceptions as originally drawn, although the defects sought to be cured by amendment were pointed out to him at the hearing on the allowance of the exceptions. And in another case, the court declined, without the consent of both parties, to receive an amendment from the judge who tried the case, because no amendment was suggested until after the case had been submitted on arguments. Johnson v. Gouillard, 4 Allen, 446. A bill of exceptions allowed by a judge of the Superior Court cannot be amended in the Supreme Judicial Court, even by agreement of parties, without the consent of the judge who allowed the bill. Ashley v. Boot, 4 Allen, 504. Proceedings on Non-Entry. Since an appeal rightly taken vacates the judgment appealed from, it was formerly held that the judgment below must be APPEALS, EXCEPTIONS, AND KEPORTS. 391 affirmed in the court appealed to before the lower court could take further action. So after the allowance of exceptions, all further proceedings in the case were stayed to await the de- termination of the questions of law by the Supreme Judicial Court ; and no judgment could be entered in the case upon the plaintiff's motion until some proceedings were had in that court resulting in the affirmation of the judgment of the Su- perior Court, or the overruling of the exceptions. Gassett V. Cottle, 10 Gray, 375. But, now, it is provided that if a party, who has taken an appeal or an exception which has been allowed, neglects to enter the question in the Supreme Judicial Court, the court in which the appeal was taken or the exceptions allowed, may upon the application of the ad- verse party upon due notice to all parties interested order the judgment, opinion, ruling, or order affirmed. Pub. Sts. c. 150, § 15, as amended by St. 1888, c. 94. Or, the adverse party may file a complaint in the Supreme Judicial Court, and obtain an affirmation of the judgment ruling, or order, with costs and interest. Pub. Sts. c. 150, § 16; Gom'mon- wealth V. Boston & Maine Railroad Co., 3 Gush. 25, 57 ; Bentley V. Ward, 116 Mass. 333.^ 1 The following is a form of complaint for affirmation of judgment upon failure to enter an appeal, or exceptions : — To the Honorable the Justices of the Supreme Judicial Court sitting at Boston, in the County of Suffolk, within and for the Commonwealth of Massachusetts. Respectfully complains A. B., of said Boston, that C. D. of Chelsea, in said county, brought an action of contract against your complainant by writ dated December 1st, 1890, returnable to the Superior Court next thereafter to be holden in said county, to wit, on the first Monday of January last past ; that said action was duly entered in said Superior Court, and thereafter, to wit, [state proceedings]; that the plaintiff in said action appealed from said judgment to the Supreme Judicial Court [or, at the trial of said action, the plaintiff took exceptions to certain rulings and refusals to rule of the presiding justice, in matters of law, which exceptions were by the said justice allowed on the day of , and an attested copy thereof is hereto annexed] all of which was duly 392 MASSACHUSETTS PRACTICE. When the complaint is filed, the proceeding is entitled A. B., Complainant, v. G. D. ; and since the excepting party is in default by reason of his failure to enter the question, it would seem that he is not entitled to notice of the complaint, unless the court in its discretion orders notice to be given. See Myes V. Sherburne, 117 Mass. 279, 280. 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 such omission 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 entry to be made, and will then proceed as if it had been entered at the proper time. But no security by bond, attach- ment, or otherwise, which has been discharged by the omission of either party to enter the question or complaint, will be revived and continued in force by such an entry. Pub. Sts. c. 150, § 17. The petition in such a case must be in writing, and notice of the filing thereof must be given to the adverse party. A viva voce motion and notice to the former attorney in the cause are insufficient to authorize a late entry. Bergen V. Jones, 4 Met. 371. If the judgment has already been affirmed on the complaint of the adverse party, the remedy of the excepting party is by petition for review. Bowditch' Ins. Co. v. Winslow, 3 Gray, 415 ; Bentley v. Ward, 116 Mass. 333, 334. made matter of record in said Superior Court. And your complainant further says that weeks have elapsed since said appeal [or, the allow- ance of said exceptions], and the record thereof as aforesaid, and the plaintiff in said action has failed and neglected to enter in this court the questions of law reserved upon said appeal, [or, exceptions]. Wherefore your complainant prays that the judgment aforesaid of the Superior Court may be affirmed, and for his costs, and interest on said judgment, [or, the said exceptions may be overruled]. A. B. By his Attorney, G. B. R. Boston, Nov. 20, 1891. APPEALS, EXCEPTIONS, AND EEPOETS. 393 When the case has in fact ,been entered in the Supreme Judicial Court, but the copies are not ready in court when the case is called, the exceptions will ordinarily be dismissed on motion, in the absence of any explanation of the neglect; and, since it is a common practice of the clerks to enter cases by name without waiting for the excepting party to take any action, a motion to dismiss is found most convenient in cases where the papers are not ready and no contest is intended. HEARING AND DETERMINATION OF QUESTIONS OP LAW. Questions of law on exceptions, on appeal or report from the Superior Court, on cases stated by the parties or reserved by a single justice, questions of law arising on special ver- dicts, and all issues in law, are requii-ed to be heard and deter- mined by the full court, consisting of at least four justices. Pub. Sts. c. 150, §§ 2, 7, 8. Thus, a case presenting an issue in law merely is within the exclusive jurisdiction of the full bench, and cannot be tried or reserved in the first instance by a single justice. Tufts v. Newton, 119 Mass. 476; Mass. National Banh v. Bullock, 120 Mass. 86. An exception to the rule thus stated arises from the application of the statute pro- viding that demurrers may be heard in the first instance by a single judge of the court in which the case arises, and that his decision as to the misjoinder of counts shall be final. But if the demurrer is that the facts do not in point of law support or answer the action, and no amendment is prayed for, the question may be reserved by the judge of the Supreme Judi- cial Court on report, or carried to the full court by exceptions, not by appeal. See Pub. Sts. c. 167, § 67. Part II. post; Cowley V. Train, 124 Mass. 226.^ The court may hear any question ex parte when it is reached, in the order of the docket, and only one party is 1 Demurrers are customarily carried up from the Superior Court by appeal, although this may be done by bill of exceptions. See McCallum V. Lambie, 145 Mass. 234, 236. 394 MASSACHUSKTTS PRACTICE. 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 can be treated as again in order for argument until all the questions ready for argument have been argued, postponed, or otherwise dis- posed of. Pub. Sts. c. 150, § 11. Arguments are "limited to one hour 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." Rule XLII. Sup. Jud. Ct., as amended June 22, 1893. The party against whom the verdictj was rendered or judgment entered below is called upon to go forward in the argument of the questions of law. In every case which is for argument before the . full court, each party must prepare a printed or written brief on paper of the usual quarto size, 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. Each brief must begin with a concise statement of the case, sufficient to show in a general way the questions involved; and when practicable an oral statement may be made of the case by the opening counsel instead of reading the papers, as heretofore usually practised. And in cases where it may be necessary for the court to go into examina- tion of evidence, each party must specify in his brief the lead- ing facts which he deems established, with a reference to the pages of the papers where the evidence of such facts may be found. In civil causes to be heard in Suffolk County eight copies of each brief must be filed with the clerk for the use of the court, the reporter, and the opposite party, one day before such causes are put on the short list for argument. In other counties the briefs in all causes must be filed with the APPEALS, EXCEPTIONS, AND KEPOETS. 395 clerk on or before the opening of the court on the first day of the sitting 'thereof. No oral argument will be heard in be- half of a party for whom briefs have not been so filed, unless by special permission of the court. Rule XL. Sup. Jud. Ct., as amended June 22, 1893. Briefs are usually printed ; and a sum not exceeding ten dollars may be allowed in taxing costs, for expenses actually incurred in printing copies of briefs. Cases must be argued when reached, in their order on the docket, if either party is ready, unless the court for good cause shown orders a postponement; but no party can 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. Pub. Sts. c. 150,. § 9. Cases cognizable by the full court at the sitting held at Boston for the Commonwealth are entered upon the law docket and taken up for argument in the order in which they are received, without any arrangement by counties. After deciding a question of- law, it is the duty of the full court, as soon as may be, to make such order, direction, judg- ment, or decree, as is fit and proper for the further disposition of the case. It is within the power of the full court to cause the record of the case to be brought into the Supreme Judicial Court by certiorari, or other appropriate process, and after entering judgment to remit the record to the court from which it has been removed, to carry such judgment into effect ; or it may order a new trial or further proceedings to be had at the bar of the Supreme Judicial Court, or execution to be issued in the last-named court. But the court usually an- nounces its decision by a rescript transmitted to, and entered in, the court in which the case is pending, directing the clerk to make the appropriate entry, and containing a brief state- ment of the grounds and reasons of the decision. See Pub. Sts. c. 150, §§ 12, 13. Immediately upon the filing of a rescript in a case in either court, it is the duty of the clerk of such 396 MASSACHUSETTS PRACTICE. court to give notice thereof to an attorney of record of each party, and to transmit a copy of the rescript to the reporter of decisions. Pub. Sts. c. 153, § 17. After the rescript has been sent down and entered in the Superior Court, a motion for a new trial not founded on error in the decision upon the exceptions cannot be made in the Supreme Judicial Court, but must be made in the Superior Court. Commonwealth v. Scott, 123 Mass. 418. For although a question of law cannot be entered in the Supreme Judicial Court until the case has been so far disposed of as to appear by the record to be ripe for a final judgment on which execu- tion may issue, yet the question of law is all that is trans- ferred, the case and the record remaining in the lower court or in the Supreme Judicial Court for the county ; and unless the full court orders the record to be brought up, the effective final judgment must be entered and execution issued in the place where the record is. The decision of the Supreme Judicial Court as stated in its rescript, on the question of law reserved, is conclusive upon the Superior Court. But if it appears to the satisfaction of the Superior Court that by mis- take of parties or counsel, or misunderstanding of that court, a question of fact which is essential to the determination of the rights of the parties has not been tried, it is within the power and discretion of that court to suspend the entry of final judg- ment, and to set aside a verdict or discharge a statement of facts, in order to afford an opportunity of presenting that question to the court or jury, although the rescript directs judgment to be entered. Piatt v. The Justices, &c., 124 Mass. 353 ; Terry v. Brightman, 133 Mass. 536. But, ordinarily, the order directed by the rescript is entered of record in the Superior Court, and such disposition of the case should be made by that court as law and justice require, conformably to the rescript or order. Pub. Sts. c. 152, § 13. Where the rescript orders judgment for one of the parties, the clerk properly makes the entry accordingly, but this APPEALS, EXCEPTIONS, AND KEPOETS. 397 entry is not a judgment. The effective final judgment must be entered by tlie court in which the case is pending, either under a special order or by the general order usual at the close of the sitting, Terry v. Brightman, 133 Mass. 536. If exceptions are sustained, the grounds of the decision may be such as to induce the court to allow the verdict or finding in the case to stand, or the new trial may be restricted to that part of the case which alone has been affected by the error. Way v. Butterworth, 106 Mass. 75 ; Wayland v. Ware, 109 Mass. 248. But such a disposition of the case must be indicated specially, for when the rescript is absolute, sustain- ing the exceptions, and nothing in the reasons given for the decision appears to modify it, all findings of fact are set aside and the case stands as if no trial had ever been had. Bohin- son V. Trofitter, 106 Mass. 61 ; JDows v. Sviett, 127 Mass. 364. 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 of the Superior Court to enter judgment as of the last sitting in that court. Pub. Sts. c. 153, § 18. If judgment has been rendered in a case in which excep- tions are allowed, the judgment may be vSicated by the full court without a writ of error, and as if it had been entered by mistake at the same sitting at which it is so vacated, and there- upon such further proceedings will be had in the case as law and justice require. Pub. Sts. c. 150, § 15. The full court may, on appeal, afiirm the former judgment, or may reverse it, either wholly or in part, and order that the case stand for trial or for further proceedings in the Superior Court. By our practice, if the court is equally divided in opinion as to the questions of law raised by appeal or by a bill of excep- tions, the decision of the lower court or of the single justice is affirmed. If a question is reserved on report, and the judges are equally divided on a point which involves the plaintiff's 398 MASSACHUSETTS PRACTICE. right to recover, judgment is commonly rendered for the defendant. Durant v. Essex Co., 8 Allen, 103 ; Shannon v. Shannon, 10 Allen, 249. When it appears by the bill of exceptions or report, or, in case of appeal, by the record, that leave was given by the judge to enter the verdict or judgment, or to alter or modify the same, or to increase or reduce the damages, in such manner as the Supreme Judicial Court sitting iu banc should deter- mine, it is the duty of the full court in disposing of the questions of law raised to make such order, direction, judg- ment, or decree as is fit and proper for the further disposition of the case. Pub. Sts. c. 153, § 14 ; Dittmar v. Norman, 118 Mass. 319. Opinions. In most cases the decision is accompanied or closely followed by an opinion of the court, written by one of the justices, stating at length the grounds and reasons for the decision and discussing the questions of law involved in it. The records and rescripts made upon the decision of questions of law are required to contain " a brief statement of the grounds and reasons of the decision," and, if no further opinion is written out within sixty days, the reporter is required to publish the case with the opinion contained in such record or rescript. Pub. Sts. c. 150, § 13. The opinion does not form a part of the record of the case, unless embodied in the judgment, Snell v. Dwight, 121 Mass. 348, 349 ; nor does any statement contained in it, however valuable as expressing the view of the writer of the opinion, carry with it the authority of a decision of the court, unless the principle or rule stated is necessarily involved in the decision of the case in which the opinion is filed. Massachusetts Reports. The decisions of the Supreme Judicial Court are printed in the volumes called " Massachusetts Reports." This is the APPEALS, EXCEPTIONS, AND EEPOETS. 399 name originally selected ; but in 1824 the volumes began to be called by the name. of the reporter, as "Pickering's Reports," " Metcalf's Reports," &o. This custom continued until the enactment of St. 1867, c. 239 (Pub. Sts. c. 159, § 60), which provided that " the volumes of the reports of the decisions of the Supreme Judicial Court, next succeeding the series edited by Charles Allen, shall be styled ' Massachusetts Reports,' without the name of the reporter thereof added thereto, and the numbering of the several volumes shall be determined by reckoning all the previous volumes of reports as ' Massachusetts Reports.' " The plan was first adopted in Volume 115 of printing the decisions whenever a sufficient number had accumulated to make a book of convenient size, without any arrangement by terms or counties. Prior to this it had sometimes happened that an opinion promptly prepared was not published for two or three years because other cases argued at the same term were .reserved for consideration. The reporter is required to " keep in some safe and conven- ient place, in the city of Boston, to be provided by the county of Suffolk, the written opinions of the court in all law cases argued in the several counties, until their publication in the reports, and also his dockets and copies of papers in such cases ; and shall afford due facilities for their examination." Pub. Sts. c. 159, § 61.1 One set of briefs and copies in each case before the full court, together with the rescript, is deposited in the Social Law Library, in Boston. ^ By a contract between the Commonwealth and Little, Brown, & Co.. of Boston, as prescribed by St. 1889, c. 471, the Massachusetts Reports are published by Little, Brown, & Co., and are sold to the public of this Commonwealth at the uniform price of one dollar and fifty cents per volume. PART II. NOTES AND DECISIONS ON CHAPTER ONE HUNDRED AND SIXTY-SEVEN OF THE PUBLIC STATUTES, AND THE ACTS AMENDATORY THEREOF. NOTES AND DECISIONS ON CHAPTER ONE HUNDRED AND SIXTY-SEVEN OF THE PUB- LIC STATUTES, AND THE ACTS AMENDATORY THEREOF.i PLEADINGS : POEMS AT LAW. . Section 1.^ There shall be only three divisions of personal actions : — 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, trover, and all actions for penalties. Third. Actions of replevin. (St. 1852, c. 312, § 1 ; Gen. Sts. c. 129, § 1.) 1 " The practice, pleadings, arid forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the Circuit and District Courts " of the United States, are required to "conform as near as may be to the practice, pleadings, and 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." Rev. Sts. of the U. S. § 914. 2 All the sections of Chapter 167 are made applicable to actions brought in the district, police, and municipal courts, excepting §§ 3, 43, 47, 48, 62, 63, 64, 67, 68, 69, 70, 71, 78, and 74. See §§ 89, 90, and 92, post, and St. 1893, c, 396, § 23. By § Q\,post, §§ 62, 63, 64, and 74, are made applicable to actions brought in the Municipal Court of the City of Boston. All the sections of Chapter 167 are applicable to actions brought before trial justices, excepting 3, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 40, 41, 43, 47, 48, 49, 62, 63, 64, 67, 68, 69, 70, 71, 73, 74, and 81. See § 92, post. For a list of the sections applicable to real and mixed actions, see § 88, post. 404 MASSACHUSETTS PRACTICE. [§§ 1, 2. At common law, the action of assumpsit lies when a party claims damages for the breach of a simple contract, either ex- press or implied. The action of covenant lies where a party claims damages for breach of a covenant, i. e., of a promise under seal. The action of debt lies for thei recovery of a liquidated or certain sum of money alleged to be due. When damages are sought to be recovered for a trespass alleged to have been committed, the proper remedy is by the action of trespass. A trespass is defined as " an injury, com- mitted with violence." Stephen, PI. 15. Such injury may be either to the person or property, and the violence may be either actual or implied by law. When the injury complained of does not result immediately from the wrongful act, but from a consequence of that act, the remedy is trespass on the case. The action of trover lies to recover damages for the wrongful act of the defendant in converting or appropri- ating to his own use the property of the plaintiff. " Under our present system of pleading, an action of tort is sufficiently comprehensive to embrace all the cases in which a remedy was formerly afforded either by an action of trespass or an action of the case. An action of tort may, therefore, now be supported by proof of facts which would have been sufficient to maintain either of those actions." Merrick, J., in ITolli/ V. Boston Gas Light Co., 8 Gray, 123. FORMS OP DECLARATIONS : StTRPLUSAGB. Sect. 2. The form of declaring in personal actions shall be according to the following particulars : — ■ First, The action shall be named in conformity with the divisions specified in the preceding section. Second, No averment need be made which the law does not require to be proved. (St. 1852, c. 312, § 2 ; Gen. Sts. c. 129, §2.) Surplusage, or the setting forth of unnecessary matter, was not ground for demurrer at common law, but might be § 2.] NOTES AND DECISIONS. 405 stricken out on motion.^ See Jones v. Bow, 137 Mass. 119. If it was so intimately connected with the essential allegations of the plea as to be included under the opposite party's traverse, the party alleging the superfluous matter was, and still is, put on proof of his unnecessary allegations. But the facility with which amendments are granted under the statutes renders the rule of little practical importance at present. In an action on St. 1786, c. 81, § 7, to recover double damages for an injury occasioned by a defect in a highway, it was held to be unnecessary for the plaintiff to allege in his declaration that he was entitled to double damages. Olarh v. Worthing- ton, 12 Pick. 571.' In an action under Pub. Sts. c. 179, § 9, for trespasses on land committed " without license, wilfully," averments in the declaration that the defendant had no good reason to believe the land was his own and that he was not lawfully authorized to do the acts, are unnecessary. Snelling v. Garfield, 114 Mass. 443. In a declaration in trespass for injuring the plaintiff's cattle, not for taking or converting them, the value of the cattle is immaterial, and need not be alleged. Bean v. Green, 4 Gush. 270. And in a declaration in tort for breaking and entering a close no averment of time is necessary. Kna;pp v. Slocomb, 9 Gray, 73. In an action upon a note payable on demand at a certain place, it seems to be necessary to allege a demand at the place. But when the note is payable at a time and place certain, an allegation of a demand is not necessary. For a discussion of the principle, see opinion of Wilde, J., in Oarley v. Vance, 17 Mass. 390 ; and see cases under § 2, cl. 3, post. In an action for the price of intoxicating liquors, the decla- 1 Statements charging the opposing party with crime, and incorporated into a declaration in an action to which they are not pertinent, are not privileged, and the attorney signing the declaration may be held liable therefor in an action by the party injured. McLaughlin v. Cowley, 127 Mass. 316. 406 MASSACHUSETTS PRACTICE. [§ 2. ration need not allege that the sale was authorized by law. Maker v. Dougherty, 8 Gray, 437. A declaration on an insurance policy need not set forth the conditions subsequent contained in the policy. Forbes v. American Mutual Life Ins. Co., 15 Gray, 249; but see § 2, cl. 10, post, requiring the conditions of a conditional obligation to be set forth. An averment in a declaration that the debt sued on is not barred by the statute of limitations is not necessary. BlacTc- ler V. Boott, 114 Mass. 24. When a contract is required by the statute of frauds to be in writing, a declaration upon it need not, for that reason, allege that it is jn writing. In such a case the statute should be pleaded by the defendant if relied on. But if a contract required by the statute to be in writing is alleged in the declaration to be oral, a demurrer will lie. Elliott v. Jenness, 111 Mass. 29; Price v. Weaver, 13 Gray, 272; Mullaly v. Rolden, 123 Mass. 583. For a case in which it was held to be unnecessary for the plaintiffs, who sued as assignees in insolvency for the alleged conversion of goods illegally sold to the defendant by the in- solvent, to set forth in full the facts on which they relied to support the action, see Tapley v. Forbes, 2 Allen, 20. It is not necessary to allege that a defendant is a married woman, or that the services rendered her were in respect of her separate property. A declaration is suflScient which would be sufficient if she were not under coverture. See Pub. Sts. c. 147, § 10 ; Van Buren v. Swan, 4 Allen, 380. This case is, however, of little Importance since the enactment of St. 1874, c. 184, § 3 (Pub. Sts. c. 147, § 7), which gives married women almost unrestricted capacity of suing and being sued.^ See cases under cl. 3, ;post. 1 At the common law a married woman could not sue in her own capacity, except when her husband was banished or bad abjured the realm. 2 Kent's Com. 151. In Massachusetts it was held that a wife § 2.] NOTES AND DECISIONS. 407 Substantive Facts only to h& set forth.. Third. The substantive facts necessary to constitute the cause of action may be stated with substantial certainty, and without unnecessary verbiage. divorced a mensa et thoro might sue and be sued as a feme sole for property acquired or debts contracted by her after the divorce. Dean v. Richmond, 5 Pick. 461. In all suits on choses in action held by the wife before mar- riage, the husband and wife were obliged to join. Clapp v. Slougliton, 10 Pick. 463. If the wife was injured in her person or property, she could bring no action for redress without her husband's concurrence, and such an action, when brought, was required to be in his name as well as hers. 1 Blackstone, Com. 443. By St. 1787, c. 32, it was provided that when a married man absented himself from the State, abandoning his wife, and not making sufficient provision for her support, the Supreme Judicial Court might authorize the wife, during the absence of her husband from the Commonwealth, amongst other things, to commence, prosecute, and defend any suit in law or equity to final judgment and execution, in the same manner as if she were sole. The Revised Statutes (c. 77, § 12) extended this power of the court to cases where the husband had been sentenced to confinement in the State prison, and § 18 authorized any married woman who might thereafter come into the State without her husband, he having never lived with her in this State, to act as a feme sole. By St. 1855, c. 304, § 4, any woman thereafter to be married might, while married, sue and be sued in all matters having relation to her prop- erty in the same manner as if she were sole. This statute also provided that any married woman might cany on any trade or business on her sole and separate account, and might sue and be sued as if sole, in regard to such trade or business. St. 1857, c. 249, § 3, extended the application of the last-named provision to every married woman. St. 1869, c. 304, pro- vided that fi married woman might make contracts for necessaries to be furnished to herself and family, and sue and be sued thereon, in the same manner as if she were sole. St. 1871, c. 312, provided that " any mar- ried woman may sue and be sued in actions of tori, in the same manner as if she were sole, and her husband shall not be liable to pay the judg- ment against her for damages or costs in any such suit, but the same may be collected out of her property, real or personal ; and all sums recovered by her in any such suit shall be her sole and separate property." Austin V. Cox, 118 Mass. 58; McCarty v. De Best, 120 Mass. 89. Since the pas- sage of St. 1874, c. 184 (Pub. Sts. c. 14'7, § 7), a married woman has had the capacity to sue and be sued in the same manner as if she were sole, except that suits between husband and wife are not authorized. 408 MASSACHUSETTS PRACTICE. [§ 2. The declaration need not set forth in detail the elemfints or grounds of the damages sought to be recovered. Under the general allegation of damage, the plaintiff may recover all the damages which are the natural and necessary consequences of the cause of action set forth in the declaration. Prentiss v. Barnes, 6 Allen, 410. But the doctrine of this case is not to be construed as altering the rule of the common law, which requires a plaintiff to set forth in his declaration all special damages, that is, such as do not necessarily flow from the acts complained of. Baldwin v. Western Railroad Co., 4 Gray, 333 ; Warner v. Bacon, 8 Gray, 397. " Mere collateral dam- age must be stated in the declaration, in order to entitle the plaintiff to give it in evidence, lest, otherwise, the defendant might be taken by surprise." Per Holroyd, J., in Battley v. Faulkner, 3 B. & Aid. 294. Formerly it was necessary in all cases to allege a demand when damages for the loss of the use of money were sought to be recovered, and when the claim was not for interest as a debt. Ordway v. Colcord, 14 Allen, 59. But see St. 1890, c. 398, as to declaring for in- terest in connection with the common counts. In an action on a promissory note not negotiable, the dec- laration alleged that " the defendant made a promissory note, a copy whereof is hereto annexed, payable to E. W. R., and the plaintiff is the owner of said note, and the defendant owes him the amount of said note." It was held that the declara- tion was insufficient to entitle the plaintiff to judgment on default, because it did not allege that the note had been assigned to the plaintiff, and that, upon notice thereof, the defendants had made an express promise to him to pay them. Hollis V. Richardson, 13 Gray, 392. So, a declaration alleging that " the defendant made three several promissory notes payable to his own order, which the defendant indorsed in blank," copies being annexed; and that "the defendant owes the plaintiff the amount of said notes," with interest, was adjudged bad on demurrer for not stating any title or § 2,] ' NOTES AND DECISIONS. 409 possession in the plaintiff. Sistermans v. Field, 9' Gray, 331.1 In an action against one who signed a promissory note as surety some time after its delivery by the maker, and had no share in the consideration for which the note was given, it was held to be necessary, as in all cases of simple contracts, that " the declaration should disclose a consideration, either of bene- fit to the defendant or of detriment to the plaintiff ; as other- wise it would appear on the face of the declaration to be nudum pactum." Stone v. White, 8 Gray, 589, citing 1 Ghitty, PI. (6th Am. ed.) 321 ; 1 Saund. 211, n. 2 ; Jones v. Ashhurn- ham, 4 East, 455. If the signature of a surety is made on the face of the note before delivery, he is liable as a joint maker (see Hunt V. Adams, 5 Mass. 358, and subsequent decisions), and in sucli a case no special averment of consideration is necessary, the note importing a consideration.^ A declaration on a written agreement in this form : " Bor- rowed and received of A. B. two hundred and sixty dollars, which I promise to pay on demand, with interest ; " was held to contain a sufiicient setting forth of the consideration, on the ground that the writing imported a consideration on its face. Cochran v. Duty, 8 Allen, 324. Declarations on Contracts generally. " It is a familiar and well-settled rule of pleading, that in declaring on a contract the plaintiff is bound to describe it 1 The court says: "The declaration would as well show a cause of action in another as in the plaintiff. He does not aver any transfer, or indorsement to, or title or possession in, himself. ... If this case was to come on for trial, the plaintiff would be obliged to produce the note, and, when produced, it would be prima facie evidence. But before he comes to that he must amend his declaration." ■' Whether a promissory note without the words "value received" imports a consideration, qucere. In Hemmenway v. Hickes, 4 Pick. 497, it is said to be " questionable." But see Townsend v. Derby, 3 Met. 363; Burnham v. Allen, 1 Gray, 496; Dean v. Carruth, 108 Mass. 242. 410 MASSACHUSETTS PRACTICE. [§ 2. truly and according to its legal effect; and that any variance, however trivial, will be fatal. ... It is not, however, always necessary or proper to set out the entire contract, for this, wlien it consists of several distinct parts, might lead to unne- cessary prolixity. It is sufficient to state such parts only as are material to the action. But if the parts omitted go to qualify the parts set out in the declaration, and are essential to the plaintiff's title, the omission will be fatal. Whatever forms a constituent part of the plaintiff's title must be truly described. A contract, therefore, in the alternative must be so stated in the declaration. And so a conditional contract must not be set forth as an absolute one, although it should appear by evidence that the condition had been performed, unless the condition be merely a defeasance of the contract, in which case it is considered as matter of defence and may be omitted in the declaration." ^ Stanwood v. Scovel, 4 Pick. 422, 423. In an action against one as trustee, who has received by instrument under seal certain property to be applied for the benefit of his assignor's creditors, the declaration need not aver any special promise on the part of the trustee to apply the property to the purposes of the trust. Frost v. Gage, 1 Allen, 262. A declaration in an action on a covenant in a deed against incumbrances, which sets forth the deed and alleges a breach of the covenant in that there existed, at the date of the deed, certain rights of way over the premises, need not describe accurately the location of the ways, the allegation of the covenant and breach being sufficient. Blake v. Everett, 1 Allen, 248. An allegation that the defendant " elected to continue in the occupancy of the premises " described in a written lease, 1 As to how far the above statement needs qualification in its applicar tion to declarations upon written instruments under the existing statutes, see § 2, cl. 9, 10, and notes, posi. § 2.] NOTES AND DECISIONS. 411 for an additional term, "upon the terms and provisions therein mentioned," is a sufficient allegation that the lessee elected to hold for the additional term. Kramer v. Cook, 7 Gray, 550. A declaration was held to be demurrable which set forth a written agreement executed by the defendant only, for the reason that there was no allegation of a consideration for the defendant's promise, or that the conditions prescribed had been complied with by the plaintiff, although it was alleged that "the defendant had disabled himself from performing the contract, and had prevented the plaintiff from performing the same." And in addition to the last allegations it should be stated specifically that the defendant did not perform the contract. Murdock v. Caldwell, 8 Allen, 309 ; Same v. Same, id Allen, 299. In an action brought by the treasurer of the Commonwealth in his own name and not in the name of the Commonwealth as required by law, the declaration containing no averment that the treasurer was authorized by law to begin the action in his own name, the defendants may take advantage of the objection at the trial, although they have not answered in abatement; since the facts stated in the declaration and denied by the defendants are insufficient to maintain the action. Oliver v. Colonial Gold Co., 11 Allen, 283, 285. A declaration which sets forth the recovery by the plaintiff of a judgment against the defendant for a certain sum as damages, and a certain sum as costs, " which judgment is in full force, and not impaired, annulled, or satisfied, whereby an action hath accrued to said plaintiff to have and recover of said defendant the balance due on said judgment and interest thereon," is sufficient, although not alleging any specific sum to be due and unpaid.^ O'Neal v. Kittredge, 3 Allen, 470. * An action brought upon a recognizance, or upon a judgment of a court of record within twenty years after its rendition, may be main- tained without regard to the question whether an execution has been 412 MASSACHUSETTS PRACTICE. [§ 2. An allegation, at the end of a special count in contract, that the defendant owes the plaintiff the sura before men- tioned, is a mere statement of the plaintiff's conclusion of law resulting from the facts already alleged, not an allegation of fact which would be deemed to be admitted by a demurrer. Millard v. Baldmn, 3 Gray, 484. See Jones v. Dow, 137 Mass. 119. A declaration alleging that the plaintiff agreed to send and did send to the defendant certain goods, and that the defend- ant agreed to return or pay for the same, but did neither, and not alleging within what time the return or payment was to be made, is bad on demurrer, as omitting to allege substantive facts. Bead v. Smith, 1 Allen, 619. A declaration on a poor debtor's recognizance, alleging that the plaintiff recovered judgment against the defendant for damages and costs ; that execution issued thereon ; that the plaintiff made the affidavit and procured the certificate required by the statute ; and that " the said execution was put into the hands of A. B. on said 19th day of March, with instructions to serve it, and said A. B. then was and ever since has been a constable for the said city of Boston, duly authorized to serve said execution," is sufficient, and a demurrer alleging that the declaration does not show that the constable had any authority to arrest the defendant, is frivolous. Webber v. Davis, 5 Allen, 393. To maintain an action of debt upon a recognizance, the jurisdiction of the court taking the same must appear afiirm- atively. Wingate v. Commonwealth, 5 Cush. 447.^ But it is a sufficient allegation of the authority of a commissioner of insolvency to take such a recognizance, to allege that he was a " commissioner of insolvency in and for the county of taken out or returned, unless payment is pleaded. O'Neal v, Kittredge, 3 Allen, 470; Webber v. Davis, 5 Allen, 393 ; Linton v. Hurley, 114 Mass. 76 ; Wilson v. Hatfield, 121 Mass. 551. I See the same case for a discussion of the necessary allegations in a declaration on a recognizance taken in a criminal proceeding. § 2.] NOTES AND DECISIONS. 413 Suffolk, duly authorized to act in such cases." The court is bound to know judicially that such an officer has the author- ity referred to. Webber r. Davis, 5 Allen, 393. For a form of declaration against the surety on a poor debtor's recognizance, see Selected Foems, post. Declarations in Actions of Tort. In declaring upon a cause of action arising under a statute, the plaintiff must state specially every fact required by the statute to fix the liability. Wright t. Boston & Maine Bail- road, 129 Mass. 440. Thus, if the declaration in an action for personal injuries against a railway corporation, fails to allege that notice was given the defendant, as required by Pub. Sts. c. 52, § 19, such a notice being a condition precedent to the right to maintain the action, the omission may be taken advantage of by demurrer. Dickie v. Boston & Albany B. B., 131 Mass. 516. So, an action is not maintainable against a railroad under Pub. Sts. c. 112, § 213, for the loss of life of one not in the exercise of due care, if the declaration purports to be framed on the statute and merely avers that the deceased person while a passenger, or, while not a passenger, in the exercise of due care, was killed by the negligence of the defendant, its servants or agents. Allerton v. Boston & Maine B. B., 146 Mass. 241. In an action of tort for obstructing a right of way, damages for the consequent diminution of rent cannot be recovered unless specially alleged in the declaration. Adams v. Barry, 10 Gray, 361 ; Baldwin v. Western Bailroad, 4 Gray, 333. Under a declaration alleging an obstruction to a way ap- purtenant to a close, damages may be awarded if the way is appurtenant to any part of the close. Pettingill v. Porter, 3 Allen, 349. In an action for obstructing a drain, whereby water was caused to flow into the plaintiff's cellar, the plaintiff, under a 414 MASSACHUSETTS PRACTICE. [§ 2. general allegation that his property was destroyed and that he was put to trouble and expense, may recover for all injuries to his estate which were the natural and probable consequence of the defendant's act, such as those arising from unwholesome and disagreeable smells and insects generated by the water in the cellar. Emery v. Lowell, 109 Mass. 197. In an action to recover damages for an injury received by reason of a defective way, the allegation in the declaration, which was in the form prescribed by the statute, that the plain- tiff used due care, is equivalent to an allegation that he was law- fully on the highway, and an answer traversing the allegation of due care traverses the implied allegation that the plaintiff was rightfully in the highway. JoTies v. Andover, 10 Allen, 18. Under a declaration, alleging, among other acts of trespass, that the defendant built a part of his barn upon the plaintiff's close, and thereby put and kept the plaintiff out of the posses- sion and occupation of a part of the close, the court held that it was competent for the plaintiff to prove that the eaves of the defendant's barn projected over the plaintiff's close. Smith V. Smith, 110 Mass. 302. Where a declaration against a railway corporation alleged that the plaintiff's schooner, while waiting to pass the defend- ant's drawbridge, got her stern caught under the draw which was closed, that the master of the schooner requested the superintendent to open the draw, and he wilfully and negli- gently refused to do so ; and that as the tide was rising the schooner was thereby sunk and logt ; but did not aver that the request was made at a time when the owner or master of the vessel had a right to have the draw open ; it was held that no cause of action was shown. Jennings v. FitcKburg B. B., 146 Mass. 621. Declarations for Slander and Libel. The Practice Act did not change the rule of law which requires, in declarations for slander, allegations of extrinsic § 2.] NOTES AND DECISIONS. 415 facts or circumstances which are necessary in order to make the words actionable. Tebbetts v. Goding, 9 Gray, 254. A declaration in an action for slander must set forth, substantially, the words relied on as slanderous ; a mere statement of their effect and purport is insufficient. Zee v. Kane, 6 Gray, 495. Where the slander is prima facie actionable, as, for instance, imputing to one an indictable offence, a declaration stating the defendant's malicious intent and the slander concerning the plaintiff is sufficient ; but where the words do not naturally, and of themselves, convey the meaning that the plaintiff wishes to assign to them, or are ambiguous and equivocal and require explanation by reference to some extrinsic matter to show that they were actionable, it must not only be stated that such matter existed, but also that the words were spoken of and concerning it. This rule is applicable to slander in- jurious to a person in his trade or profession. 1 Chitty's Pleading, 381. Words that import, in themselves, a charge of some punish- able offence, or an imputation of some loathsome, disgraceful, or infectious disease, or are spoken in relation to the plain- tiff's trade or occupation, and tend to injure him in it, are prima facie actionable in themselves, and need no allegations of special damage. But an action of slander by orally im- puting insanity to the plaintiff will not lie, unless special damages are averred in the declaration. Joannes v. Burt, 6 Allen, 286 ; and see the same case for an example of a declaration pronounced demurrable as containing superfluous, impertinent, and scandalous allegations. A declaration in an action for libel, which alleges that the plaintiff was doing business under the style of C. & Co., and the defendant published a false and malicious libel concerning him, in which, as set forth, reference is made to C. & Co., but not to the plaintiff in his individual name, sufficiently alleges that {he libel was intended to refer to the plaintiff. The in- 416 MASSACHUSETTS PRACTICE. [§ 2. ducement or introductory matter, and the colloqumm, includ- ing the reference to the inducement or prefatory statement, when it is necessary to an understanding of the alleged libellous or slanderous matter, are not required to be set forth with technical accuracy, but only in such manner as to make the words relied on intelligible to the court and jury in the sense in which they were spoken or written. Ghenery v. Goodrich, 98 Mass. 224. See Statute Forms, post. Absence of probable cause for the criminal charge is essen- tial to the maintenance of an action for malicious prosecution, and must be distinctly averred in the declaration. Dennehey V. Woodsum, 100 Mass. 195. As to the necessary averments in a declaration in an action of tort for deceit, it was said in Solst v. Stewart, 154 Mass. 445: — " The principal objection to the declaration is, that it does not allege that the representations were fraudulently made. Fraud is undoubtedly the gist of the action. It is not enough to allege a false representation, but in some form it should be alleged that the representation was fraudulently made. Pear- son V. Howe, 1 Allen, 207 ; Hartford Ins. Co. v. Matthews, 102 Mass. 221. The plaintiff relies upon the case of Litch- field V. Hutchinson, 117 Mass. 195,^ in support of his conten- tion that the declaration in the case at bar is sufficient. No question, however, was raised in that case as to the form of the declaration, and, although the declaration did not use the word 'fraudulently,' it alleged that the representations 1 In this case it was held, that if one " states, a's of his own knowledge, material facts susceptible of knowledge, which are false, it is fraud which renders him liable to the party who relies and acts upon the statement as true, and it is no defence that the person making the representations be- lieved them to be true. The falsity and fraud consist in representing that he knows a thing to be true, when he has not such knowledge. A false representation of this character is sufficiently set forth in the decla- ration, to constitute a cause of action, without the further allegation that the defendant well knew the representations to be false." § 2.] NOTES AND DECISIONS. 417 were false, and knowledge of this fact on the part of the defendant." See Nowlan v. Cain, 3 Allen, 261 ; Medhury v. Watson, 6 Met. 249 ; Homer v. Perhins, 124 Mass. 431 ; Tucker v. White, 125 Mass. 844 ; Savage v. Stevens, 126 Mass. 207 ; league v. Irwin, 127 Mass. 217 ; Parker v. Moulton, 114 Mass. 99 ; Gordon v. Parmelee, 2 Allen, 212 ; Brown v. Castles, 11 Cush. 348 ; Veasey v. Baton, 8 Allen, 380. Neither party should set forth in his declaration or answer any matters but those upon which he intends to rely ; and if he does so, he will be required to pay to the opposite party the costs of witnesses occasioned thereby. Kule XV. Sup. Ct. Coimts : Joinder of Causes of Action. 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. 1 This section changes St. 1851, c. 233, § 2, which provided that one count, and one only, should be used in setting forth each cause of action. ^ It would seem that two causes of action arising on the same contract may be embraced in the s?me count. In such a case the two choses in action make up the unit of consideration moving from the one party, and upon these the other may sue, setting forth the contraBt and the consid- eration therefor in the same count. A famijiar example is a contract of fire insurance in a mutual company, where the consideration moving from the one side is an agreement to indemnify against loss, and the considera- tion on the other may be made up of three parts : first, a cash premium ; second, a deposit note ; and third, a contingent liability for assessment in case of losses. The converse of the proposition is also true; i. e., if the consideration for the defendant's contract consists of several things, these must aU be set forth in the plaintiff's statement of the contract, for "if any part of an entire consideration, or of a consideration consisting of several things, be omitted, the plaintiff will fail upon the trial, on the ground of vari- ance." 1 Chitty, PI. 295. 27 418 MASSACHUSETTS PRACTICE. [§ 2. A declaration may be good which sets forth the cause of action in more counts than one. Lovett v. Salem & South Danvers R. B. Co., 9 Allen, 557. The objection that a count contains two distinct causes of action must be taken by demurrer, since it is sufficient if, at the trial, facts enough are proved to establish a cause of action which has been informally stated in the pleadings. Washington v. Uames, 6 Allen, 417 ; Downs v. Hawley, 112 Mass. 237. A count setting forth a written contract and alleging that the plaintiff entered upon the performance of it, but the defendant neglected and refused to perform his part and pre- vented the plaintiff from performing the contract, concluding with an allegation like that contained in a count on an account annexed, was adjudged " bad in substance, because it contains two inconsistent causes of action in contract, one being the bl"each of a special contract and the other a quantum meruit for work done." Simmons v. Lawrence Buck Co., 133 Mass. 298. A cause of action for malicious prosecution and for break- ing and entering the plaintiff's close cannot properly be joined in one count. Allen v. Codman, 139 Mass. 136. Joinder of Counts : Election. Fifth. Any number of counts for different causes of action 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 count in contract may be joined with a count in tort, averring that both are for one and the same cause of action. A count in contract may be joined with a count in tort when it is deemed doubtful to which class a particular cause of action belongs, although the action is entitled in the writ an action of contract. The clause "was enacted in order to enable a plaintiff by declaring in the alternative to avoid the danger of a variance between the allegation and proof in a § 2.] NOTES AND DECISIONS. 419 doubtful matter of form." Gray, J., in Hulett v. Pixley, 97 Mass. 29.1 In an action called in the writ " an action of tort and an action of contract, both being for one and the same cause of action " a declaration containing a single count in tort may be amended by adding a count in contract, with an averment that both counts are for one and the same cause of action. Cunningham, v. Hall, 7 Gray, 559. Such an action is one sounding in contract or tort upon which a general verdict may be taken, unless the plaintiffs are, in the discretion of the court, compelled to elect upon which count they will pro- ceed. May V. Western Union Telegraph Co., 112 Mass. 90. And when both counts are said to be for the same cause of action, a judgment on default will not be reversed on writ of error if either count is sufficient. Mullaly v. Holden, 123 Mass. 583. A count in contract against a common carrier for non- delivery of goods may be joined with a count in tort for their misdelivery. Mahon v. Blake, 125 Mass. 477. A declaration contained two counts in tort for deceit, set- ting forth certain false representations of the defendant, and a count in contract alleging payment of money induced by the false representations set forth in the first count, and seeking to recover it as money had and received. The counts were alleged to be for the same cause of action. At the trial, the plaintiffs gave notice that they should not claim to recover by reason of the alleged false representations of the defendant, and it was held that the third count still set forth a good cause of action. Brown v. Pease, 104 Mass. 308. An allegation that counts in tort and contract are " for one and the same consideration " constitutes a sufficient averment that they are for one and the same cause of action. Jenkins V. Bacon, 111 Mass. 873. 1 See this case as to the proper form of an affidavit for arrest in such an action. 420 MASSACHUSETTS PRACTICE. [§ 2. The words " with count in tort " in a writ, no such count appearing in the declaration, are mere surplusage. Ames v. Stevens, 120 Mass. 218. A motion to compel the plaintiff to elect upon which of two counts in his declaration, one in contract and one in tort, he will proceed, is addressed to the discretion of the court, and no exception lies to its decision. " For if the plaintiff should prove such facts as to establish a valid claim, no technical dis- tinction between actions of contract and actions of tort ought to defeat his right to a judgment." Sullivan v. Fitzgerald, 12 Allen, 484; Carlton v. Pierce, 1 Allen, 26; Crafts v. Bel- den, 99 Mass. 539 ; Atwater v. Clancy, 107 Mass. 375. See Harding v. Pratt, 119 Mass. 188. When the counts are so inconsistent with each other that they cannot be submitted to the jury at the same time, the plaintiff should be compelled to elect between them. Clapp V. Campbell, 124 Mass. 50; Mullaly v. Austin,.^! Mass. 30. But the refusal of the court to order counts stricken out, the plaintiff not having elected between them, is not a ground for a new trial. Reeve v. Bennett, 145 Mass. 23. Where a declaration was in two counts, one for false and fraudulent representations in an exchange of horses between the parties, and the other for the conversion of the plaintiff's horse and of money given by the -plaintiff as a part of the bargain, and there was evidence that the plaintiff avoided the exchange before bringing the action, it was held by the majority of the court that the plaintiff, at the trial, was not obliged to elect between the counts ; since the evidence was the same in its application to both, except upon the question of election and damages. Whiteside v. Brawley, 152 Mass. 138. It is immaterial that the cause of action is described in one count as a contract made by the defendant and in another as a contract made by the defendant in his capacity as guardian. The judgment in either case must be against him personally, § 2.] NOTES AND DECISIONS. 421 and the legal liability being the same in whichever form the contract is made, there is no inconsistency in the counts. Bollins V. Marsh, 128 Mass. 116. See New Haven & North- ampton Co. V. Campbell, 128 Mass. 104. In Biehmond v. Whittlesey, 2 Allen, 230, counts for assault and battery and false imprisonment were joined with counts for the conversion of a horse and for slander. A count in tort for deceit was joined with a count in con- tract for the same cause of action, and it was held, that a discharge under the United States Bankrupt Act of 1867 (Rev. Sts. U. S. § 4972 et seq.) was no defence to the count in tort. Morse v. Eutchins, 102 Mass. 439. In an action by an employee against his employer for personal injuries sustained in the employment by reason of the employer's negligence, in which the declaration contains counts at common law and also under the " Employers' Liability Act " (St. 1887, c. 270), such counts respectively presenting different issues and involving different liabilities in damages, it is within the discretion of the court to require the plaintiff to elect whether he will go to the jury on the common-law counts or on those framed on the statute. Brady V. Ludlow Manuf'g Co., 154 Mass. 468. The Common Counts. Sixth. The common counts shall not be used unitedly, but each one of those counts may be used in the form hereinafter prescribed, when the natural import of its terms correctly describes the cause of action.^ " When the terms of a special contract have been so far performed that nothing remains but a mere duty to pay money, then the amount due may be recovered under a * It was formerly the practice to print all the " common counts " in the writ blanks, and when they were used unitedly, the plaintifE could main- tain his action if his evidence at the trial sustained any one of them. For an elaborate discussion of the common counts, see 1 Chitty, PI. p. 333 et seq. 422 MASSACHUSETTS PRACTICK [§ 2. general count. It is only necessary to declare specially when the agreement remains executory." Morse v. Sherman, 106 Mass. 430, 432. Thus where there is a special agreement relative to the performance of work and labor, it is necessary that the declaration should set forth the agreement; yet, where there has been such an agreement, and the terms of it have been complied with, so that nothing remains but a mere duty to pay money, a general count is sufficient for the re- covery of the. sum due. Felton v. Dickinson, 10 Mass. 294. See also, Gharman v. Henshaw, 15 Gray, 293 ; Morse v. Potter, 4 Gray, 292 ; Morse v. Sherman, 106 Mass. 430. " When one person performs labor for another, without any agreement as to price, the law implies a promise by the person at whose request it is performed to pay what it is reasonably worth. This may be sued for upon the common count for work done, or on an account annexed, but such count is sub- stantially the common-law count upon a quantum meruit, and involves all the allegations contained in that count. The common-law count upon a quantum meruit alleges not only that the work was done at the request of the defendant, but also that, in consideration thereof, the defendant promised the plaintiff to pay him therefor so much money as he reasonably deserved to have, which he alleges to be the sum of, &c. Oliver's Free. 150 ; 1 Chit. PI. (16th Am. ed.) 352." It was accoi'dingly held that, in an action on an account annexed for services rendered, it was incumbent upon the plaintiff to prove the value of the services, and it was open to the defend- ant, under a general denial, to introduce evidence of the plaintiff's negligence and want of skill. Caverly v. McOwen, 123 Mass. 574. Where a party has entered into a special contract to per- form work and to funiish materials for another, but there is a failure to perform the work according to the . stipulations of the agreement, so that the price agreed upon cannot be re- covered, yet if there has been an honest intention to go by the § 2.] NOTES AND DECISIONS. 423 contract, and a substantial performance of it, and the work and materials are of any value to the other party, the con- tractor may recover upon a quantum meruit. Eayward v. Leonard, 1 Pick. 181 ; Snow v. Ware, 13 Met. 42 ; Bassett v. Sanborn, 9 Cush. 58 ; Cardell v. Bridge, 9 Allen, 355 ; Fitzger- ald V. Allen, 128 Mass. 232 ; Blood v. Wilson, 141 Mass. 25. The result of the cases is that if the special contract is ter- minated by any means other than the voluntary refusal of the plaintiff to perform the same upon his part, and the defendant has actually received benefit from the labor performed and materials furnished by the plaintiff, the value of such labor and materials may be recovered upon a count upon a quantum meruit, in which case the actual benefit which the defendant receives from the plaintiff is to be paid for independently of the terms of the contract. The contract may, however, be useful as evidence in determining the real amount of the benefit that has accrued. Fitzgerald v. Allen, 128 Mass. 232. A workman agreed to lath and plaster a building for a certain sum. He lathed the building and put on the first coat of plaster, when it was destroyed by fire. It was, held that he might recover under a count for work done and materials furnished. Cleary v. Sohier, 120 Mass. 210. See Zord V. Wheeler, 1 Gray, 282; Raymond v. Eldridge, 111 Mass. 390 ; Ford v. Burchard, 130 Mass. 424. An infant who has contracted to work for a time certain may avoid the contract and sue on a quantum meruit. Gaffney V. Hayden, 110 Mass. 137. Account Annexed. Seventh. A. count on an account annexed, in the form here- inafter 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. " It is well settled in this Commonwealth that under the common counts in indebitatus assumpsit at common law or 424 MASSACHUSETTS PRACTICE. [§ 2. under a count on an account annexed under the new practice act, the plaintiff may recover either moneys due under a spe- cial contract which has been fully performed, or the value to the defendant of work done or materials furnished under it ; and that when under such a count he seeks to recover pay- ment for building a house according to a special contract and proves that he has substantially performed it, except in some comparatively slight deviations, the measure of damages is the contract price, deducting what the house was worth less to the defendant, by reason of such deviations." Gullen v. Sears, 112 Mass. 299, 308; Powell v. Howard, 109 Mass. 192 ; Lovell v. Earle, 128 Mass. 546 ; Glidden v. Child, 122 Mass. 433. " By the practice in this Commonwealth, whatever might have been recovered under the common counts at common law may be the subject of a count on an account annexed. The common counts include work and labor done, and goods sold either for a fixed price or for their reasonable worth or value. It was therefore rightly ruled that the plaintiff " declaring upon an account annexed, " might recover for labor at a rate agreed by the day, and for materials fur- nished, at reasonable prices." Lowe v. Pimental, 115 Mass. 44. The price of grass or timber standing on the vendor's land could not, at common law, be declared for upon either of the common counts, and cannot therefore, under the existing statutes, be declared for in a count on an account annexed ; otherwise, if the grass has been cut or taken from the land. Stearns v. Washburn, 7 Gray, 187 ; Richardson v. GrooTcer, 7 Gray, 190. A declaration on an account annexed, for tlfe sale and de- livery of" a certain number of cords of wood, is not supported by proof of a special agreement that a less quantity than that prescribed by statute shall be delivered and accepted as a cord. Golton v. King, 2 Allen, 317 ; nor is an allegation of a sale of oak lumber supported by proof of sale of a lot of lumber of § 2.] NOTES AND DECISIONS. 425 different kinds of wood, under a contract that it should be delivered and received as oak. Upton v. Witichester, 106 Mass. 330. Under Gen. Sts. c. 86, § 61, a purchaser of intoxicating liquors sold in violation of law, who, in settling mutual ac- counts, credited the seller with the price thereof, was allowed to recover the amount of such credit as one item of an account annexed.^ Walan v. Kerly, 99 Mass. 1. Substitute for Trover. Eighth., In the action of trover, the form hereinafter pre- scribed shall be used. The action of trover at common law proceeded, as its name implies, upon the legal fiction that the defendant found the goods sued for, and converted them to his own use, and that, upon a demand made for them by the rightful owner, he re- fused to give them up. It was necessary, therefore, in order to establish the conversion, that the declaration should allege a demand for the goods on the part of the plaintiff, and a refusal on the part of the defendant to deliver them up. Since " no averment need be made which the law does not require to be proved" (§ 2, cl. 2), it may or may not be necessary to allege a demand and refusal, in declaring for a conversion. The rule is, that when the chattels alleged to have been converted have not been wrongfully taken posses- sion of by the person holding them, but have come into his hands in a lawful manner, he cannot be made responsible for 1 It is said to be the general rule that where an account is stated by debiting and crediting, and the balance is sued for and judgment rendered for such balance, the defendant is bound by the credits so given, and cannot afterwards bring an action for the same demand. Such credit, however, is not conclusive as to the amount or value of the goods or services credited in the account, but it will, after judgment, be taken as a payment pro tanto, and if credited at the just value will bar a cross action for the amount. Minor v. Walter, 17 Mass. 237 j'Briggs v. Richmond, 10 Pick. 391; Abbott v. Stevens, 117 Mass. 340. 426 MASSACHUSETTS PBACTICE. [§ 2. a conversion until they have been demanded of him by the owner or the person entitled to possession and he has refused to deliver them up. In such cases, therefore, it is necessary to prove a demand and refusal. Bobinson v. Austin, 2 Gray, 564. Such refusal does not itself constittite the convery sion, but is evidence of a previous conversion. On the other hand, against a person who has wrongfully possessed himself of the goods of another or has honestly purchased stolen goods, an action for the conversion may be maintained with- out alleging or proving a demand. Grimes v. Briggs, 110 Mass. 446; Folsom v. Clemence, 119 Mass. 473; Metcalfv. McLaughlin, 122 Mass. 84 ; Heckle v. Zurvey, 101 M'ass. 344. An action of tort for the conversion of boots is not sup- ported by the proof of conversion of mere stock for boots in various stages of manufacture, and not finished boots. Fitz- gerald V. Jordan, 11 Allen, 128. Nor is a mere refusal to pay money lent such a conversion as will support a count in tort. Bassett v. Bassett, 112 Mass. 99. The taking, by one act, of several chattels of the same per- son will not sustain more than one action, and after judg- ment for tlie conversion of certain chattels, an action cannot be maintained for the conversion of other chattels which were in fact taken by the same act, although the allegation of such taking was accidentally omitted from the declaration in the former action. Folsom v. Clemence, 119 Mass. 473, and cases cited. A count alleging that the plaintiff mortgaged personal property to the defendant to secure payment of a promissory note, and that the mortgage was duly recorded, and that the defendant unlawfully sold the property, and so deprived the plaintiff of his right to pay the note and redeem the property, " and the defendant has converted the said property to his own use," is a count in tort in the nature of trover. Wells v. Connable, 138 Mass. 513. § 2.] NOTES AND DECISIONS. 427 Declarations on Written Instruments. Ninth. All written instruments, except policies of insur- ance, shall be declared on by setting out a copy or such part as is relied on, or the legal efPect 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 orders, 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.^ "The reason for excepting policies of' insurance in the statute was, probably, that they are often of great length, and contain a multitude of provisions and conditions that may have no bearing on the particular case, and it was thought to be sufficient if the plaintiff stated the substantive facts on which he relied, and alleged that the defendant was thereby bound, by the terms of the policy, to pay him the sum sued for." Per Field, J., in Pierce v. Charter Oak Ins. Co., 138 Mass. 151, 161. At common law it was not necessary in all cases to set forth a written instrument relied on or its legal effect. Thus, in a declaration in debt for rent on a demise, it was sufficient to state a demise for any number of years without averring it to have been in writing. For an elaborate discussion of the subject, see Duppa v. Mayo, 1 Saunders, 276 (6th edition), and note. A declaration may be good, though it does not set forth the instrument declared on, nor a copy of it, nor give any reason why the same is not set forth, provided it sets forth the legal m * Any signature to a written instrument declared on is to be taken as admitted, unless a written denial of the same is filed by the opposing party. See § 21, post. 428 MASSACHUSETTS PRACTICE. [§ 2 effect with proper averments. Suffolk Bank v. Lowell Bank, 8 Allen, 355 ; Eiggins v. McDonnell, 16 Gray, 386. Where a declaration upon a memorandum in writing given for money lent by the plaintiff to the defendant, did not set forth a receipt for certain collateral security for the loan, written upon the back of the same paper; and, at the trial, the memorandum had been admitted as evidence for the plain- tiff, it was held that the declaration was sufficient without setting forth the receipt, and that the memorandum -was rightly admitted in evidence. Burr v. Joy, 151 Mass. 295. A declaration set forth the purchase of land by the plain- tiff of the defendant, and the delivery to the plaintiff of an agreement in writing, a copy of which was annexed, signed by the defendant's agents, and providing that the vendor should " in all respects fulfil the conditions of sale." A demurrer to the declaration was sustained on the ground that the condi- tions of the sale were not set forth, and that there was no allegation that the defendant agreed to do anything. Biley v. Farnsworih, 111 Mass. 152. In declaring on a covenant, the breach of the same may be assigned generally by negativing the words of the covenant, and this rule applies to the breach of the covenant of seisin in declaring upon which there is no necessity of a special assignment of the breach. Bacon v. Lincoln, 4 Gush. 212. The declaration in an action of contract did not in terms allege that the agreement therein set forth was in writing, but a copy of a written instrument was annexed to the declaration, and the defendant in his answer denied " that he ever signed a paper as alleged by the plaintiff, and if he ^id ever sign such a paper, it was without consideration." It was held that these pleadings were " inartificial and loose," but that the defend- ant's answer " cured the defect in the declaration, and makes an issue upon the written agreement set out by the copy annexed, as if it were well set forth by the plaintiff's allega- tions." Vinal V. Richardson,, 13 Allen, 621. § 2.] NOTES AND DECISIONS. 429 It seems that if the contract declared on is incomplete in itself, as being in part executory, the terms thereof remain- ing to be executed should be set forth. In an action for breach of an agreement to sublet rooms in a building in pro- cess of erection, which agreement was incomplete because made subject to a proposed lease to the plaintiff to be exe- cuted when the building was ready for occupancy, the court said that the terms of such lease, if executed before action ■brought, should he set forth, in so far as these were material to complete the agreement sued on, with appropriate allega- tions. Freeland v. Bitz, 154 Mass. 257, 262. A declaration framed on the theory that an agreement which looked to a " permanent unity of the interest" between the parties, but left the plan thereof to be prepared, was a completed contract, was held bad on demurrer. Sibley v. Felton, 156 Mass. 273. Where a declaration alleged that the plaintiffs " had per- formed and stood ready to perform each and all the matters and things which they by said contract were bound to do," it was held not competent to show that the defendant had waived the right to require such performance. Palmer v. SawyeT, 114 Mass. 1. A waiver, by one party to an agree- ment, of the performance of a stipulation in his favor, is not a performance of that stipulation by the other party. It is an excuse for non-performance, and should be so pleaded. Colt V. Miller, 10 Cush. 49. If a declaration on a policy of life insurance refers to the policy and is not demurred to, it is not ground of objection to the admission of the policy in evidence that the declaration, construed with the policy, is ambiguous. And such a declara- tion need not allege facts which defeat part of the plaintiff's claim, under special provisions of the policy. Pierce v. Charter Oah Ins. Go., 138 Mass. 151. Rent due under a written lease cannot be recovered under a count for use and occupation. Warren v. Ferdinand, 9 430 MASSACHUSETTS PRACTICE. [§ 2. Allen, 357 ; and an indenture of lease, under seal, is not admissible in evidence to sustain an action for rent, unless it be declared upon in conformity to the statute. Burnham v. Boherts, 103 Mass. 379. A declaration alleged that " the defendants made a promis- sory note, a copy whereof is hereto annexed, payable to one B., or order, and the same was duly indorsed and transferred to the plaintiff." The original note corresponded with the copy annexed, save that it bore an indorsement by B., a reve- nue stamp, and a memorandum of protest. The' court held that there was no variance, — the declaration being supported by the copy, and setting forth the legal effect of the indorse- . ment of the note to the plaintiff. Clary v. Thomas, 103 Mass. 44. A promise in writing to pay a certain sum to " A. or B." cannot be declared upon as a promissory note, but it may be declared on as a written instrument, or given in evidence under the money counts. Osgood v. Pearsons, 4 Gray, 455. In Lincoln v. Butler, 14 Gray, 129, it wa? held that this memorandum, " Due A. B., on account, 142.32, C. D." might be declared on by setting forth a copy, or put in as evidence under a count for money had and received. An indorser who has paid a note upon the maker's failure to pay it may, in an action brought against him by the maker's assignee in insolvency, declare specially in set-off, stating all the facts, instead of declaring upon the note as for money paid. Parker v. Sanborn, 7 Gray, 191. See Pub. Sts. c. 168, § 16. In an action for malicious prosecution, a copy of the whole or any part of the process or judgment in the prosecution need not be set forth, nor its legal effect stated, in the decla- ration. Bernard v. Gafferty, 11 Gray, 10. Written instruments, when relied on in an answer or subse- quent allegation, are required to be set out, or copies or the originals filed, in the manner prescribed in the ninth clause, above. See post, § 22. [§ 2. NOTES AND DECISIONS. 431 Bonds and other Oonditiopal Contracts. . 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 precedent to tlie right of the party relying thereon shall be averred to have been performed, or his excuse for the non- performance thereof stated. Whenever the right of recovery depends upon a condition precedent, the declaration must aver performance of the con- dition or the equivalent of performance, in order to entitle the plaintiff to recover. Thus, in an action against the indorser or drawer of a bill of exchange, if the declaration does not allege either a demand of payment, within the proper time, on the drawee or acceptor, or due notice to the defendant of refusal of payment by the drawee, the omission is fatal ; such demand and notice being implied conditions, the performance of which is necessary to enable the plaintiff to maintain his action. So, if actual notice to the defendant of any fact is the condition of his liability, such notice must be alleged in the declaration. So far as the above clause applies to conditions subsequent, it changes the rule of the common law ; for, by the common law, it was never necessary to state in a declaration, or in any manner to take notice of, any condition subsequent an- nexed to the right asserted by the plaintiff, the office of such a condition being not to create the right, but to qualify or defeat it. The condition, therefore, if performed by the de- fendant, furnished matter of defence to be set up in the answer. If not performed, all allegations in regard to it were superfluous on either side. Thus, in declaring on a bond, the plaintiff formerly need set forth only the penal part of the instrument, leaving the defendant to allege performance of the condition ; but now, not only must the condition be set out in the declaration, but breaches must be assigned. See Gould's PI. c. 4, §§ 13-17. 432 MASSACHUSETTS PRACTICE. [§§ 2, 3. In declaring upon a policy of insurance, it is not necessary to set forth conditions subsequent. Forbes v. American Mutual Life Ins. Co., 15 Gray, 249. The waiver of a condition in a written contract does not work as a substitution of a new contract ; and it is proper to declare upon the written contract as originally made, alleging the waiver instead of the performance of the condition. Lam- son & Ooodnow Mfg. Go. v. Russell, 112 Mass. 387. Instead of an averment by the plaintiff that he has per- formed all the conditions of the contract declared on, it may be alleged with the same effect that the defendant has waived such performance. Lamson & Goodnow Mfg. Go, v. Bussell, 112 Mass. 387. In actions on bonds, and on all other contracts, when dam- ages are to be assessed by the court or the clerk (see ante, pp. 314-315) the plaintiff must file an account or statement in writing of the particulars of his demand, unless the same are sufficiently apparent from the declaration, or from the bond, note, or other instrument declared on, or from a bill of particulars filed. Rule XII. Sup. Ct. As to pleading a conditional obligation, contract, or grant, by answer or subsequent allegation, see post, § 23. REAL ACTIONS ON MORTGAGE TITLES. Sect. 3. In real actions founded on mortgage titles, the declaration shall allege the seisin to be " in mortgage." (St. 1852, c. 312, § 2 ; Gen. Sts. c. 129, § 3.) " When the mortgagee brings an action to foreclose his mortgage, he must count on his own seisin in mortgage. Gen. Sts. c. 129, § 3 ; c. 140, § 3. (Pub. Sts. c. 167, § 3 ; c. 181, § 3.) This provision is reasonable, because the tenant in such case is entitled to have a conditional judgment en- tered." Per Soule, J., in Simpson v. Bix, 131 Mass. 179, 183. In this case, however, which was an action brought by a mort- gagee in possession against a stranger to the title, it was de- §§ 3,4.] NOTES AND DECISIONS. 433 cided that the rule did not apply. And whether a demandant in a writ of entry to foreclose a mortgage should, in tprms, allege his seisin to be " in mortgage," qucere. See Mann v. Earle, 4 Gray, 299 ; Warner v. Brooks, 14 Gray, 108. SEVERAL LIABILITIES ON WRITTEN CONTRACTS. Sect. 4. Persons severally liable upon contracts in writ- ing, 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, describ- ing the several contracts of the defendants when the same contract was made by each ; or different counts describing the different contracts of the defendants when, as in the case of maker and indorser, the same contract was not made by all. The court shall take such order for the separate trial of the issues as shall be found most convenient, and shall enter several judgments according to the several contracts of the defendants, and issue one or more executions, as the case may require. (St. 1852, c. 312, § 3 ; Gen. Sts. c. 129, § 4.) " The only case in which our statutes have so far modified the common law as to allow several judgments upon diflFerent contracts in one action, is where they all arise out of one written instrument, as upon one bill of exchange or promis- sory note." Leonard v. Bobbins, 13 Allen, 217. For a case of improper joinder of parties, see Wallis v. Carpenter, 13 Allen, 19. Persons severally but not jointly liable upon a contract in writing may be sued jointly under this section, although no one of them is liable to the whole extent of the contract. Grocers' Bank v. Kinsman, 16 Gray, 473. When a bond is several as well as joint, it is suflUcient at common law and under our statutes to allege, in an action against one obligor, that the bond was executed by him, with- out mentioning the other obligors. Tapley v. Goodsell, 122 Mass. 176. Upon a joint and several bond the plaintiff must sue one or all of the obligors, and cannot bring his action against an 28 434 MASSACHUSETTS PRACTICE. [§ 4. intermediate number ; but the objection must be pleaded in abatement. Leonard v. Speidel, 104 Mass. 356. In an action to enforce a joint and several bond running to several persons, the personal representatives of deceased obligees should not be joined as plaintiffs. The survivors are the proper parties to sue. Donnell v. Manson, 109 Mass. 576. See Huntress v. Burbank, 111 Mass. 213. The first clause of § 4 "is a rule of pleading relating to parties severally liable by their own contract, and not to those whose liability, originally joint, must by reason of subsequent events and operation of law be enforced severally ; and does not afifect the survivorship of actions or the remedies against the representatives of parties deceased." New Havem, & Northampton Co. v. Rayden, 119 Mass. 361, 365. And it was held accordingly, in an action upon a joint contract, one of the defendants having died, that the court had no authority to issue a summons to the administrator of the deceased to appear and defend the action. Cochrane v. Gushing, 124 Mass. 219 ; Bicker v. Gerrish, Ibid. 367. But when two defendants who are severally liable are sued together, and one dies, his executor may be summoned in to defend the action. Colt v. learned, 133 Mass. 409. In an action brought by two plaintiffs jointly upon several claims, although the defendant made no objection to the form of the action, the court ordered, judgment for the defendant, for the reason that a judgment for the plaintiffs jointly would not accord with the proof ; and a judgment for either of them severally would not correspond with the declaration, and would be reversible on writ of error. Ellison v. New Bedford Five Cents Savings Bank, 130 Mass. 48. In an action against two, in which the real estate of each was attached, the declaration contained two counts, one against A. as maker, and the other against B. as guarantor, of a promissory note. The defendants answered jointly, and B. gave a bond to dissolve the attachment in the ordina,ry form. §§ 4, 5.] NOTES AND DECISIONS. 435 Judgment was recovered against A., and, at another time, for a smaller amount by agreement, against B. ; separate execu- tions were issued, and the execution against B. was paid. In an action against B. and his sureties upon the bond, for the amount of the execution against A., a demurrer to the decla- ration was sustained, for the reason that, although two de- fendants might be joined as provided by § 4, the purpose of the bond sued upon was that it should stand as security for the liability of B. alone. Walker v. Dresser, 110 Mass. 350. Judgment entered and execution taken against one of two joint and several makers of a note, pending exceptions taken by another, are no bar to a judgment against the one taking the exceptions, after these have been overruled. Hawkes v. Phillips, 7 Gray, 284. It was held that a contract by two with a builder to pay a certain sum for a boat to be built for them, " each his half," might be sued upon in one action, and separate judgments rendered, although the contract was several and not joint. Gostigan v. Lunt, 104 Mass. 217. By the terms of § 4, one count only is necessary when the same contract is' made by each defendant severally ; but when the contracts, though similar, are not the same, but are for distinct though equal sums, they should be stated in separate counts. Goltx. Zearned,118 Mass. 380, overruling some expressions contained in the opinion in Gostigan v. Zitnt, 104 Mass. 217. STATUTES, — HOW REFERRED TO. Sect. 5. A general statute may be referred to in declara- tions or other pleadings by spepifying 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 sufficient certainty the statute intended. (Rev. Sts. c. 100, § 20 ; Gen. Sts. c. 129, § 5.) 436 ■ MASSA.CHUSETTS PRACTICE. [§ 6. TRESPASS QUARE CLAUSUM. Sect. 6. In actions of tort for breaking and entering the plaintiff's close, the place of the alleged trespass shall be designated in the declaration by name, abuttals, or other proper description. (St. 1839, o. 151, § 3 ; Gen. Sts. c. 129, § 6.) " The object of this provision, which was derived from the English ' Rules of Hilary Term,' 1834, was to require the plaintiff by his declaration in all cases to inform the defend- ant of the place in which he is alleged to have committed the trespass, and to prevent the necessity of a new assign- ment, in case the defendant should plead soil and freehold ; not to oblige the plaintiff to allege or prove the boundaries of the premises with the precision of a writ of entry to recover the land." Eall v. Mayo, 97 Mass. 416, 419. A declaration alleging that the defendant " broke and en- tered the plaintiff's dwelling-house in L., being the same dwelling-house occupied by the plaintiff," sufficiently desig- nates the place of the alleged trespass. Sawyer v. Eyan, 13 Met. 144. A declaration describing the close as bounded northerly by land of S. and others, easterly by the old N. B. turnpike, southerly by the road leading to W., and westerly on W. river, was deemed to comply sufficiently with the statute, which does not require that description by known and visible monuments which is necessary in a writ of entry, or where title is in dis- pute. Forbush v. Lombard, 13 Met. 109. See Lincoln v. Rutler, 14 Gray, 129 ; Parsons v. Smith, 5 Allen, 578. If the declaration describes the place by street and number and refers to a recorded deed which contains a more particu- lar description thereof, the defendant who does not demur to the declaration or ask for a statement of particulars, is not entitled, as matter of law, to a ruling that the place is not sufficiently designated. Leatherbee v. Barrett, 152 Mass. 632. §§ 7, 8.] NOTES AND DECISIONS. 437 DECLAEATION IN THE WBIT. Sect. 7. In actions of contract and actions of tort, unless an arrest of the person is made, the writ need not contain a declaration nor any description of the cause of action in which it is intended to declare, other than the name of the form thereof ; but when in such actions in police, district, and mu- nicipal courts, and before trial justices, the declaration is not inserted before the service of the writ, the defendant shall, upon motion, be entitled as of right to a continuance for at least seven days from the return day. (St. 1852, c. 312, § 7 ; Gen. Sts. c. 129, § 7 ; St. 1862, c. 20, §§1, 3.) Prior to the existence of the Practice Act, it was necessary that a declaration should be inserted in a writ before service ; and it was held that the courts had no power to authorize the filing of ,a declaration after entry, by way of amendment, be- cause there was nothing to amend by. Keenan v. Knight, 9 Allen, 257. When a declaration is inserted in the writ before service, no addition can afterwards be made to it, except by leave of court appearing on the record, or by written consent of the defendant. A paper cannot be filed by folding it in the writ before the latter is entered. Jones v. Esley, 1 Allen, 273. PILING OP DECLARATION. Sect. 8. The declaration may be filed in the clerk's office on or before the day on which the writ is returnable, unless an arrest of the person is made. If there is an attachment of property, and the declaration and bill of particulars, when necessary, are not inserted in the writ, a copy thereof shall be furnished to the defendant or his attorney within three days after he has demanded the same in writing of the plain- tiff or his attorney. (St. 1852, c. 312, § 8; St. 1854, c. 440, § 1 ; Gen. St. c. 129, § 8.) If a declaration is inserted in the original writ, a new declaration cannot be filed on the return day without leave, although the declaration in the writ is bad on its face, and was not intended to be relied on. Clark v. Ward, 7 Gray, 409. 438 MASSACHUSETTS PRACTICE. [§§ 8, 9. The question whether a failure to furnish the declaration to the defendant as required in the above section, will work a discontinuance of the action (see § 9, post), has not been adjudicated. It will be noticed that no penalty is expressly provided for" a failure to comply with the defendant's de- mand. See footnote, post, § 9. Sect. 9. (Amended by St. 1885, c. 384, § 6, so as to read as follows :) If no declaration has been inserted in the writ or filed pursuant to the preceding section, the action may at any time, upon motiOn, be dismissed with costs, but the court may at any time before such dismissal, in its discretion, allow the plaintiff to file his declaration upon such terms, if any, as it ■ shall think fit.i A defendant who has answered to the merits cannot object that, since the last continuance, it has come to his knowledge tliat no declaration was inserted in the writ, or filed on or before the return day, but must be deemed to have waived his right to treat the action as discontinued.^ Clark v. Montague, 1 Gray, 446. ^ Following is the section as it stood before amendment: If no declaration . has been inserted in the writ or filed in the clerk's office pursuant to the preceding section, it shall be a discontinuance of the action, and the defendant or trustee 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 declara- tion, and the action shall not be deemed to be discontinued if the declarar tion is so filed. (St. 1852, c. 312, § 9 ; St. 1854, c. 440, § 1; Gen. Sts. c. 129, § 9.) 2 The assumption that it follows as a necessary consequence, from the omission to furnish a declaration in conformity to §§ 8, 9, that the court to which the writ is returnable has no jurisdiction is not correct. On the contrary, it is indispensable that the. court should possess and exercise jurisdiction, both over the parties and over the action. This is shown hy what the court is authorized and directed to do. If the plaintiff fails to comply with the requirements of the law in relation to furnishing a dec- laration, jhdgtoent is to be rendered for the defendant for his costs. And the right to render a judgment is generally evidence of the general juris' diction, as well as of the lawful authority of the court to act in that par- ticular. It is obvious that, in every case where it is contended that there has been a discontinuance by force of an omission which the law declares shall have that effect, the court has jurisdiction of the cause and of the §§ 9, 10.] NOTES AND DECISIONS. 439 Trial justices have no power, under this or the preceding section, to allow a declaration to be filed after the entry of the writ. Keenan v. Knight, 9 Allen, 257. But the provisions of § 9 are applicable to district, police, and municipal courts. St. 1893, c. 396, § 23. BILL OP PARTICULARS. Sect. 10. In actions of contract, when either of the com- mon 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. (St. 1852, c. 312, § 4 ; Gen. Sts. c. 129, § 10.) The bill of particulars forms part of the declaration. Dick- inson V. Lane, 107 Mass. 548. And it is said that a bill of particulars " should give as much information as a special declaration, though without the form." Babcock v. Thomas, 3 Pick. 446. Where one item of an account annexed was as follows : " Sept. 13, 1869. To sixty-one days' work on house, &c., 1122," it was held that this item was sufficient to authorize the admission of evidence to prove the plaintiff's work on the grading about the house, the defendant not having moved for a more definite specification. Hayes v. Wilson, 105 Mass. 21. Where the declaration consisted of a count on an account annexed, without a bill of particulars, it was said : " Such a count was amendable by annexing a bill of particulars, before the existence of the Practice Act. But the power of courts to allow amendments has since been much extended. The dec- parties, and must necessarily exercise it. For in such a case it must always be a question of fact, to be duly determined, whether there has been on the part of the plaintiff any failure, omission, or neglect, in respect to the declaration. Besides, ,a discontinuance of the action can- not take place until after its entry. The action being entered, the juris- diction of the court attaches, and must remain until the cause is disposed of by the rendition of final judgment. Opinion of Melcalf, J. , in Clark V. Montague, ubi supra. 440 MASSACHUSETTS PRACTICE. [§ 10. laration was sufBcient to give the justice jurisdiction, and having jurisdiction, he was authorized to allow the amend- ment." Burgess v. Buglee, 100 Mass. 152 ; Tarlell v. Dick- inson, 3 Cush. 345. After the trial of a case has begun, no exception can be taken to the refusal of the judge to order that one of the counts in the declaration be stricken out for want of a bill of particulars. The defendant's . proper course is either to move the court to order such a bill to be filed, or to demur to the count. Preston v. Neale, 12 Gray, 222. And if the objection to the want of a bill of particulars is not made in the court below, such objection is not open to the defendant upon the hearing of exceptions in the Supreme Judicial Court. Tehhetts v. Pickering, 5 Cush. 83. A count for money had and received, referring to another count in which the particulars of the claim are set forth, is not subject to demurrer for the reason that no bill of particu- lars is filed with it. I>orr v. MeKinney, 9 Allen, 359. It is pr'ovided by Rule XIV. of the Superior Court, that when a bill of particulars is objected to as insufficient, and the court so adjudges it, such bill shall be stricken from the files, and if it was filed by the plaintiff he shall thereupon become nonsuit, or, if filed by the defendant, he shall not be allowed to offer evidence in support thereof unless the court grant leave to amend such bill or to file a new bill upon the terms prescribed by Rule XII. ; i. e., payment of a term fee, or, if the action has been placed on the trial list, of a double term fee. It is provided by § &l,post, 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 ; and whether such specification shall be ordered is a matter resting in the discretion of the court. Gardner v. Gardner, 2 Gray, 484. § 11.] NOTES AND DECISIONS. 441 DEMURRER : IN GENERAL. Sect. 11. To raise an issue in law, the answer shall con- tain a statement that the defendant demurs to the declaration or to some one or more counts therein, as the case may be, and shall assign specially the causes of demurrer. (St. 1852, c. 312, § 17 ; Gen. Sts. c. 129, § 11. The word demurrer, from the Latin demorari, or French demorer, to " wait " or " stay," imports, according to its ety- mology, that the party demurring will not proceed with the pleading, because no sufficient statement of the grounds of action on the one hand, or of the facts relied on to defeat it on the other, has been made by the other side. The law in respect of demurrer was not changed by the Practice Act, and " the right to demur under the statute is coextensive with the right to demur under the system of special pleading." Montague v. Boston & Fairhaven Iron Works, 97 Mass. 502. The party demurring admits (for the purposes of the demurrer only) that the facts alleged by the opposite side, in the declaration or other pleading objected to, are true, but alleges that, as set forth, they do not in point of law support the conclusion which the other side purposes to establish by them. A demurrer may be either to matter of substance or matter of form. The former sets forth that the facts, as stated, are insufficient to support the conclusion, the latter that the facts, whether sufficient or not, are set forth in a form which violates some one of the rules of pleading. In other words, a demurrer may be on the ground that the pleading of the ad- verse party does not present any legal claim or defence, or on the ground that such claim or defence is stated in an inartifi- cial manner. A logical application of the foregoing rules led to the division of demurrers into general and special ; ^ the former of these ^ By St. 1836, c. 273, special pleas in bar and special demurrers were abolished, and it was held, under that statute, that every case must be tried either upon the general issue, or on some plea specially ordered by the 442 MASSACHUSETTS PRACTICE. [§ 11. excepted in general terms to the legal sufficiency of the decla- ration or other pleading, and was proper when the facts set forth were considered insufficient to support the action. But when some defect in form was relied upon to defeat the action, the alleged defect w^as required to be specially pointed out, and, unless this was done, the judges were required to " give judgment according as the very right of the cause and matter in law shall appear unto them, without regarding any imperfection, omission, defect, or want of form." St. 27 Eliz. c. 5. Under our practice it is necessary that every demurrer should be accompanied by a special assignment of the causes of demurrer. § 11, supra. Thus a demurrer to a declaration, on the ground that " no cause of action is therein set forth substantially in compliance with the rules of law," is insuffi- cient, and should go on to specify " the particulars iu which the alleged defect consists." Suffolk Bank v. Lowell Bank, 8 Allen, 355. Formal errors or defects which are not spe- cially assigned as causes of demurrer must be deemed to be waived, although the declaration or answer, as the case may be, is defective for reasons not pointed out. Worthington v. Houghton, 109 Mass. 481 ; Clay v. Brigham^, 8 Gray, 161 ; Whittemore v. Ware, 101 Mass. 352 ; Kellogg v. Kimball, 122 Mass. 163 ; Smith v. Milton, 133 Mass. 369 ; Steffe v. Old Ooloihy B. B., 156 Mass. 262. If the declaration as a whole discloses that it was intended to present a certain case, it court as a substitute for it, and to be treated as the general issue ; and if the plaiiitifE demurred to any plea in defence, judgment must be given for the defendant. " If, however," says the court, " the facts set forth in the specifioation of defence, and which are offered in support of th6 general issue, are supposed by the plaintiff to be insufficient to sustain such plea, or to constitute a good defence, he may present that objection distitiotly to the court, and ask the instruction of the court that the matter offered to be proved, or that the facts as shown by the defendant, assuming them to be proved as contended for by hiih, Would constitute no defence to the action, and would not authorize a verdict for the defendant." Littlefield v. Pratt, 8 Met. 287. But see, now, §§ 11, 12, in the text. § 11.] NOTES AND DECISIONS. 443 will not be held bad upon demurrer for want of technical accuracy of allegation, unless the specific defect is clearly pointed out. Windram v. French, 151 Mass. 547. So where an action of slander was brought by a physician, and the declaration averred as special damage that certain persons, iu consequence of the slander, ceased to employ the plain- tiff as a physician, and omitted to state the names of such persons, but the demurrer in the case did not point out this omission, it was held that the averment of special damage must be taken to be sufficient, under the circumstances. Morasse v. Broehu, 151 Mass. 567. But if the declaration does not set forth any known cause of action, even im- perfectly, a demurrer will be sufficient which alleges that the declaration does not state any legal cause of action. Johnson v. Reed, 136 Mass. 421; and see Steffe v. Old Col- ony B. B., 156 Mass. 262 ; Ghenery v. Holden, 16 Gray, 125. The objection that the facts set forth do not support the alleged conclusion of law may be taken advantage of at trial by a request for a ruling to that effect,^ Montague v. Boston ' The existence of the rule of practice stated above avoids, in most 3ases, the necessity of filing a demurrer to evidence, which is rarely resorted ;o in our practice, as the statutes furnish more simple and convenient nodes of raising any question of law which it is desired to submit to the :oUrt. Golden v. Knowles, 120 Mass. 336, 337. A demurrer to evidence s thus defined : " In some cases wheh the pleadings terminate in an issue n fact joined to the jury, the party (whether plaintiff or defendant) who ;akes the negative side of the issue, may withdraw the examination of the ;ause from the jury to the court by demurring to (or upon) the evidence exhibited by the adverse party in support of the affirmative of the issue. By this proceeding, the issue ill fact is exchanged for an issue in law; md, on the determination of this latter issue either way, judgment foUows IS it would have done on a verdict found for the same party on the issue ^n fact." Gould's Pleading, p. 446. It must be observed, therefore, that i party demurring to evidence puts the main issue of his case for deter- mination on the result of the demurrer, and after the decision on this, the case cannot, at common law, be permitted to go to the jury, the de- murrer being taken as an admission of all the facts which the evidence 444 MASSACHUSETTS PRACTICE. [§ !!• 6 Fairhaven Iron Works, 97 Mass. 502 ; Hervey v. Mosely, 7 Gray, 479 ; but any objection to the mere form of declaring must be taken by demurrer, and when sufficient facts are shown to maintain the action, the defendant will not be al- lowed to avoid their effect by objecting at' the trial that they have been defectively set forth. Clay v. Brigham, 8 Gray, 161 ; Downs v. Hawley, 112 Mass. 237,, 241. Where an answer was a general denial, with an averment that " there are no sufficient allegations in said plaintiff's writ and declaration of any matter or thing to constitute the sub- stance of slander in form and manner," it was held that if this part of the answer amounted to a demurrer it was not in proper form, and could not first be treated as such in the Supreme Judicial Court on the hearing of exceptions. Ghaee V. Sherman, 119 Mass. 387. Demurrers to mere matters of form have become of little practical use, by reason of the facility with which formal de- fects may now be cured by amendment. A question of law which has been considered and determined in the Superior Court on a demurrer may, if properly presented upon the facts set forth in the other pleadings in the case, be heard anew at the trial on the merits in the same court. Colder V. Haynes, 7 Allen, 387. It was formerly held that if it is in- tended to contest, before the Supreme Judicial Court, the de- cision of the court, below overruling a demurrer, an appeal should be taken. Webler v. Davis, 5 Allen, 393 ; Bennett v. Clemence, 3 Allen, 431 ; Cowley v. Train, 124 Mass. 226. But in McCallum v. Zamlie, 145 Mass. 234, 236, by the application of Pub. Sts. c. 153, § 8, it was held that a demurrer coming to the Supreme Judicial Court by bill of exceptions, might be heard, although the better practice was said to be to bring up demurred to tends to prove. Such a demurrer must be in writing, and there must be a joinder by the adverse party, so that the record may raise an issue of law on which the court may give judgment. Golden v. Knowles, 120 Mass. 336. § 11.] NOTES AND DECISIONS. 445 the question by appeal. Rulings on demurrers below are in- terlocutory, and cannot be brought to the Supreme Judicial Court for revision till the case has been tried. Kellogg v. Kim- hall, 122 Mass. 163. So, a defendant having filed an answer and a declaration in set-off, to the latter of which the plaintiff demurred, no appeal lies from a judgment upon the demurrer until after trial on the answer. Maker v. Dougherty, 11 Gray, 16 ; Stetson v. JExchange Bank, 7 Gray, 425. If the court orders a defendant to file an answer within a certain time, he may insert a demurrer in an answer filed within the prescribed time. Zee v. Kane, 6 Gray, 495 ; and under an order giving a defendant leave to answer over, after an issue of fact found against him on his plea in abatement (see § 41, posf), he may demur to the declaration. Young v. Gilles, 113 Mass. 34. When a demurrer is overruled, the defendant may have leave to answer over to the merits by special order of the court (^respondeat ouster being the judgment anciently en- tered), and the case will proceed as if no demurrer had been filed. See § 41, post. In practice it is generally advisable to file an answer to the merits simultaneously with the demurrer, or within the time allowed for answer. When this is done, the answer should expressly state that the defendant does not, by filing it, waive his demurrer. See § 14, post. A ' demurrer to the " declaration and the several counts therein contained " was held to be not merely a demurrer to the whole declaration, but to each separate count as well. May V. Western Union Telegraph Co., 112 Mass. 90 ; Brown v. Castles, 11 Gush. 348. Where a demurrer was to the whole declaration, and the first count was held good, the demurrer was overruled. Sears v. Trowbridge, 15 Gray, 184. Where the defendant demurred to two counts of the declaration, the demurrer was overruled and a general verdict taken for the plaintiff. The demurrer was sustained, on appeal, as to one of the counts, and it was held, in the absence of means of 446 MASSACHUSETTS PRACTICE. [§§ 11, 12. determining upon which count the. verdict had been rendered, or whether it had been rendered upon all, that, unless the verdict could be maintained upon each count, it must be set aside. York v. Johnson, 116 Mass. 482. CAUSES OP DEMURRER. Sect. 12. Demurrers may be for the following, among other causes : — First, That counts in contract and in tort, or either with re- plevin, 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 of some count thereof, as the case may be, does not state a legal cause of action substantially in accordance with the rules contained in this chapter. Third, That the answer does not state a legal defence to the declaration, or to some count thereof, as the case may be, substantially in accordance with sucTh 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 probable ground in law therefor as to make it a fit subject for judicial inquiry and trial, and that it is not intended merely for delay .1 (St. 1852, c. 312, §§ 21, 30 ; Gen. Sts. c. 129, § 12.) In General. A declaration alleging that the defendant agreed to pay for certain goods sent him by the plaintiff, or to return the same, but not stating the time in which the goods were to be returned or paid for, is demurrable, as failing to allege substantive facts. Bead v. Smith, 1 Allen, 519. See Stone v. White, 8 Gray, 589 ; Sistermans v. Field, 9 Gray, 381. A declaration on a common count, without a bill of particu- lars, is demurrable. Preston v. Neale, 12 Gray, 222. 1 A certificate is required to be annexed to a demurrer to a bill in equity, that it is not intended for delay (Pub. Sts. o. 151, § 10) ; but no advantage can be taken of its absence, after the case has been reserved for the full court, upon the bill and demurrer. Nelson v. Ferdinand, 111 Mass. 800. It would seem that the same rule applies to a demurrer in an action at law. § 12.] NOTES AND DECISIONS. 447 The objection that a declaration on a foreign judgment does not disclose the fact that the foreign court had jurisdiction, can be taken by demurrer only. Upham, v. Pamon, 12 Allen, 98. A declaration setting forth a contract,, but not stating any promise of the defendant which was to be performed before the date of the writ, is. demurrable, and is called " a specimen of very loose and inartificial pleading." Hotchkiss v. Judd, 12 Allen, 447. In an action against a town to recover expenses incurred for the support of paupers having a settlement in the town, the omission to allege that the statute notice was given can be taken advantage of by demurrer only. Commonwealth v. Bracut, 8 Gray, 455. An objection that the declaration in an action on Pub. Sts. c. 136, §§ 26, 27, against the heirs of a deceased person for breach of the covenants in a deed of land from such deceased person to the plaintiff, does not allege that the estate of the de- ceased person has been settled, and that the defendants have re- ceived any estate from him, must be taken by demurrer ; and it is too late to take it at the trial. Uddi/ v. Ohaoe, 140 Mass. 471. A declaration which properly sets forth a contract and a breach is not open to demurrer, for the reason that the dam- ages occasioned by such breach are not correctly claimed or estimated. Colburn v. Phillips, 13 Gray, 64. A declaration on a written contract between plaintiff and defendant, which does not contain an averment of performance or readiness to perform on the plaintiff's part, or, in lieu thereof, a statement of facts which would constitute an excuse for non-performance, is demurrable. So, if it simply alleges that, the defendant has disabled himself from performing his share of the contract, without specifically stating that he did not perform it. Murdoch v. Caldwell, 10 Allen, 299. A demurrer is the proper form of taking advantage of the insufficiency of a declaration which does not state a valid cause of action. Thomson v. 0' Sullivan, 6 Allen, 303. 448 MASSACHUSETTS PRACTICE. [§ 12. A declaration is demurrable which sets forth a -written agreement executed by the defendant only, and omits to allege any consideration for the defendant's promise. Murdoch v. Caldwell, 8 Allen, 309. The question whether a cause of action survives after the plaintiff's death may properly be raised by demurrer. Leggate V. Moulton, 115 Mass. 552. An objection that a signature to a bond was not under seal, not being taken by the demurrer, is not open on appeal. Goodyear Dental Vulcanite Go. v. Bacon, 148 Mass. 542. Misjoinder of Counts. At common law, the proper mode of taking advantage of the joinder of separate and distinct causes of action was by demurrer or motion in arrest of judgment. Under the statute this objection can be raised by demurrer only, and cannot be brought up for the first time at the argument of the case before the Supreme Judicial Court, on appeal from the judg- ment of the court below. Eillman v. Whitney, 2 Allen, 268 ; Barlow v. Leavitt, 12 Gush. 483. See Commonwealth v. Dracut, 8 Gray, 455. For an instance of a declaration demurrable on account of the joinder of inconsistent counts, see Mullaly v. Austin, 97 Mass. 30. See § 2, cl. 5, and notes, as to when counts in con- tract and tort may properly be joined. Any number of counts for different causes of action belonging to the same division of actions may be inserted in the same declaration. § 2, cl. 5. The decision of a sjngle justice of the Supreme Judicial Court or the Superior Court as to the misjoinder of counts is final, an amendment being allowed as provided by sta4;ute. § 67, post ; Kellogg v. Kimball, 122 Mass. 163. If a prayer for relief in equity is improperly joined with an action at law, it niay be defeated by a demurrer. Harvey v. De Witt, 13 Gray, 536 ; Stockhridge Iron Co. v. Cone Iron Works, 102 Mass. 80. § 12.] NOTES AND DECISIONS. 449 In Actions of Tort. A declaration in tort against a partnership, setting forth the tortious acts of one of the partners, is demurrable if it fails to allege distinctly that the acts complained of were the acts of all the partners. Oray v. Cropper, 1 Allen, 337. In an action of tort for the conversion of bank bills, an in- sufficient description of the bills can be taken advantage of by demurrer only. Beatty v. Bandall, 5 Allen, 441. An action of slander for orally imputing insanity to the plaintiff is demurrable, on the ground that the facts set forth show no cause of action, unless special damages are averred in the declaration. Joannes v. Burt, 6 Allen, 236. The declaration in this case was also declared demurrable, in that it contained " superfluous, impertinent, and scandalous allegations." The objection that a declaration in slander does not set forth that the defendant charged the plaintiff with a crime, can be taken by demurrer only. Chaee v. Sherman, 119 Mass. 387. And under a demurrer to the declaration in an action for libel, assigning for cause tliat the declaration " does not set forth anything which is by its natural import libellous, or which furnishes legal ground for an action for libel, or is actionable on any ground," the defendant cannot make the objection that the declaration does not contain sufficient aver- ments that the publication declared on related to the plaintiff. Worthington v. Houghton, 109 Mass. 481. A declaration in an action for slander, alleging that the defendant, on a certain day, " publicly, falsely, and maliciously charged the plaintiff with the crime of murder, by words spoken of the plaintiff by said female defendant," is demur- rable, because it does not set forth in substance the words spoken. Zee v. Kane, 6 Gray, 495. 29 450 MASSACHUSETTS PEACTICE. [§12. Demurrers to Answers. If inconsistent defences are set up in an answer, the only way to take advantage of that defect is by demurrer. lyyons v. Ward, 124 Mass. 364. A demurrer to an answer which assigns, as the only cause of demurrer, that the answer does not disclose a legal defence, is a waiver of all mere formal defects. " An objection to defences as improperly joined, or to any informal statement of defences in the answer, is not the species of objection which the demurrer presents. If the answer contains anything which is a defence to the action, all other objections to it are waived." Proctor v. Storie, 1 Allen, 196. An answer to a declaration in slander, denying that the defendant spoke the words, and alleging in justification that they were true, is not demurrable, as stating inconsistent defences. Payson v. Macomler, 3 Allen, 69. And see Jewett v. Locke, 6 Gray, 233, for an instance in which the court decided that the defences contained in the answer were not inconsistent. See also King v. ffoward, 1 Cush. 141, and Gould's Pleading, c. VIII. §§ 1, 4, 29. In an action for slander by the use of words imputing unchastity to a woman, an answer which justifies specially by setting up that the defendant made the accusation to the plaintiff herself, and was led to do so by her general conduct, and especially by her deportment and conversation with cer- tain persons, and that he believed the same to be true, is demurrable. Parkhurst v. Ketchum, 6 Allen, 406. Particulars demurred to — Certificate. " Where the demurrer goes to the entire ground of action, as stated in the declaration, and not to any specific defect or cause of demurrer,, it is sufficient for the defendant to aver that the matters set out in the declaration are insufficient in law to enable the plaintiff to maintain his action." Bigelow, §§ 12, 13.] NOTES AND DECISIONS. 451 C. J., in Chenery v. Holden, 16 Gray, 125, and see cases cited p. 443 ante. If the cause assigned for demurrer is that the declaration or some count thereof does not state a legal cause of action in accordance with the rules prescribed by Pub. Sts. c. 167, it is necessary to go further and point out the specific defect. Suffolk Bank v. Lowell Bank, 8 Allen, 355. But if the par- ticulars in which the alleged defect consists are not set forth, and no further pleading is required of the plaintiff, who submits the case to the judgment of the court, he thereby joins issue on the demurrer and cannot object in the Supreme Judicial Court that the demurrer is informal. Colt v. Learned, 118 Mass. 380. A demurrer to a declaration that sets forth two causes of action, one in contract and the other in tort, blended in one count, will be overruled, unless the defect is pointed 'out and assigned specially as cause of demurrer. Washington v. Eames, 6 Allen, 417. ANSWERS IN ABATEMENT. Sect. 13. A defence, to a real, personal, or mixed action, which might have been made by plea in abatement, may be made by answer containing such allegations or denials as mav be necessary to constitute such defence. (St. 1852, c. 312, § 27; Gen. Sts. 129, § 13.) The objection that a suit has been begun before a right of action accrued, may be taken by plea in abatement, but it may also be relied on in the answer, as a bar to the action. Benthall v. Hildreth, 2 Gray, 288 ; Franklin Savings Institution V. Reed, 125 Mass. 365. Tliis section does not extend the time in which a plea in abatement may be filed ; and it is well settled that mere mat- ters of abatement not affecting the jurisdiction of the court cannot be pleaded after answering to the merits. Pratt v. Sanger, 4 Gray, 84 ; Jaha v. Belleg, 105 Mass. 208 ; Seagrave V. Erickson, 11 Gush. 89 ; Leonard v. Speidel, 104 Mass. 356. 452 MASSACHUSETTS PRACTICE. [§ 13. The same rule applies to motions to dismiss. Simonds r. Parker, 1 Met. 508 ; Zathroja y. Bowen, 121 Mass. 107. But within the time allowed for pleading matters in abate- ment an answer may be filed setting up matter in abatement as well as in bar : or a plea in abatement may be filed at the same time with an answer to the merits, Glaflin v. Thayer, 13 Gray, 459 ; Fisher v. Fraprie, 125 Mass. 472. The fact that both plea and answer are filed at the same time and upon the same paper does not operate as a waiver of the plea in abatement if seasonably filed and pleaded in the proper order. " This mode of pleading is often convenient to both parties ; to the defendant by stating, and to the plaintiff by giving him notice of, all tl^e defences on which the defend- ant intends successively to rely, if the trial and judgment upon the .first shall not dispose of the whole case.". O'Lough- lin V. Bird, 128 Mass. 600, overruling expressions in some earlier cases.^ The decisions of the Supreme Judicial, or the Superior Court, whether in law or in fact, upon pleas or answers in abatement, are final. Pub. Sts. c. 153, § 8. Wildes v. Mar- shall, 117 Mass. 311 ; Rutland County National Bank v. Johnson, 155 Mass. 43 ; Guild v. Bonnemort, 156 Mass. 522. But the question whether an answer in abatement was season- ably filed may be reserved on exceptions or report. Hastings V. Bolton, 1 Allen, 529 ; Jaha v. Belleg, 105 Mass. 208. The denial of the right of appeal " upon an answer or plea in abatement or motion to dismiss for defect of form in process " (Pub. Sts. c. 153, § 8), is not limited to judgments upon pleas or answers in abatement " for defect of form in process" alone, those words qualifying only the words " motion to dismiss." Young v. Providemce & Stordngton 1 Filing an affidavit of merits and an answer was held to be no waiver of a motion, filed at the same time, to dismiss the action for want of a sufficient bond, the motion to dismiss having been made at the earliest possible time. Clark v. Connecticut River R. R. Co., 6 Gray, 363. § 15.] NOTES AND DECISIONS. 453 Steamship Co., 150 Mass. 550. In an action against a corpo- ration, the writ described it as "duly organized and established by law, and having its usual place of business " in this Com- monwealth, and the officer's return recited service upon the agent of the corporation. The defendant appeared specially and moved to dismiss for want of jurisdiction, after which it filed an answer, which was demurred to, alleging that the defendant was a foreign corporation, that it had no place of business within the Commonwealth, that no property was attached on the writ, and that the person upon whom service was made was not its agent, nor authorized to accept service for it, and concluded that the defendant " ought not to be held to answer to the plaintiff's writ." It was held that this answer was an answer in abatement within the meaning of the statute, and that no appeal would lie from the judgment of the Supe- rior Court upon it. Ibid. Answering over after Flea in Abatement. Sect. 14. When an answer in abatement is overruled on demurrer, or when an amendment is allowed and made by the plaintiff in consequence of such answer in abatement, the defendant shall, within such time as the court shall order, answer, or in a real or mixed action plead, to the merits. (St. 1852, c. 312, § 29; Gen. Sts. c. 129, § 14.) It will be seen that, by the above section, when an answer in abatement is overruled in matter of law, the defendant has a right to answer over. By § 41, 2>ost, he may have leave to amend his answer in abatement, or to answer over by special order of the court for good cause shown. Therefore, even after the defendant has been defeated upon an issue of fact raised by an answer in abatement, he may, in the discretion of the court, be allowed to answer over. Young v. Gilles, 113 Mass. 34 ; Fisher v. Fraprie, 125 Mass. 472. Fquitalle Defences. By St. 1883, c. 223, § 14, it is provided that in actions at law in the Supreme Judicial and Superior courts, the defend- 454 MASSACHUSETTS PRACTICE. [§§ 14, 15. ant shall be entitled to allege as a defence any facts that would entitle him in equity to be absolutely and uncondition- ally relieved against the plaintiff's claim or cause of action, or against a judgment obtained by the plaintiff in such ac- tion ; and the plaintiff sliall 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 unconditionally relieved in equity against such defence. Under this provision the equitable defence sought to be set up must be a defence which falls within the rules and princi- ples of equity jurisprudence. Barton v. Badclyffe, 149 Mass. 275. Such defence must be definitely set up in the defend- ant's pleadings (see Sherman v. Galbraith, 141 Mass. 440, 442) ; and, at the trial, the evidence offered, if it is intended to sub- stantiate such a defence, must be offered with reference to the rights conferred by the statute. Squires v. Amherst, 145 Mass. 192, 195 ; Chemical Electric Light & Power Co. v. How- ard, 150 Mass. 495. It seems that, if the facts set up to constitute the equitable defence have occurred since the beginning of the action at law, they are not available for the defendant. Boherts v. White, 146 Mass. 256. If the facts do not show an equitable defence, the existence of them will not warrant the granting of an injunction against bringing a suit upon an existing cause of action at law, much less before the cause of action has arisen. George Woods Co. v. Storer, 144 Mass. 399. See Gove v. Learoyd, 140 Mass. 524 ; Norfhhor- ough V. Wood, 142 Mass. 551 ; Comstock v. Son, 154 Mass. 389; Pritchard v. Norfoood, 155 Mass. 539; Worthington v. Warren, 157 Mass. 421. Pleas in Bar and the General Issue. Sect. 15. Special pleas in bar as formerly used, and the general issue in all . except real and mixed actions, are abol- ished, and in place thereof the defendant shall file an answer to the declaration. In real and mixed actions the defendant may give in evidence under the general issue all matters § 15.] NOTES AND DECISIONS. 455 which might formerly have been pleaded in bar. (Special pleas in bar were abolished by St. 1836, c. 273, § 1 ; the general issue, by St. 1852, c. 312, § 12 ; Gen. Sts. c. 129, § 15. See § 28, post, and cases cited.) A plea in bar is distinguished from a plea in abatement, and others of the dilatory class, by the fact that it impugns the right of action altogether, instead of merely intending to divert the proceedings to another jurisdiction, or suspend them, or abate the particular writ. It contains, in short, statements and allegations, which, if true, are a substantial and conclusive answer to the action. Pleas in bar are divided into two classes : pleas by way of traverse, and pleas by way of confession and avoidance. Those of the first class deny all, or some essential part, of the aver- ments of fact in the declaration. Those of the second class admit the truth of the averments in the declaration, but al- lege new facts which obviate or repel their legal effect, e. g., the statute of frauds or statute of limitations. Stephea on Pleading, 75. It was formerly held that, under a plea equivalent to the general issue, filed in a police court, a defendant^ might, in the Superior Court on appeal, give in evidence anything admissible under the plea in the police court if no order had been passed requiring him to plead anew. Wilbur v. Tdher, 9 Gray, 361 ; Lew v. Lowell, 6 Allen, 25. See O'Loughlin v. Bird, 128 Mass. 600, 603. Under Rule XX. of the Superior Court, a new answer must be filed in all appealed cases, in which no answer was filed in the court below, within thirty days after the entry of the appeal, unless the court shall otherwise order. Where a verdict, upon a fact put in issue in a former action between the same parties, might have been pleaded in estoppel before special pleas were abolished, it would be conclusive when given in evidence under the general issue. Sprague v. Waite, 19 Pick. 455. Since the general issue is abolished. 456 MASSACHUSETTS PRACTICE. [§§ 15-17. such a defence must now be set up by answer, in personal actions. See § 20, post. Joint Answers — Inconsistent Defences. Sect. 16_. Two or more defendants making the same de- fence may answer jointly. Different consistent defences ipay be separately stated in the same answer. (St. 1852, c. 312, § 13 ; Gen. Sts. c. 129, § 16.) Defences are inconsistent when one of them sets forth some fact or facts which cannot, in the nature of things, co-exist with the facts set forth in the other ; as if a common carrier, in an action for the loss of goods entrusted to him for trans- portation, should set up, first, that the goods were never entrusted to him ; and, second, that he delivered them to the plaintiff or consignee in good order. But many defences which, at the first glance, may seem inconsistent, are not so in fact. Thus, if a defendant in a suit for libel should set up, first, that he never published the alleged libellous matter ; and, second, that the matter alleged was privileged, or was true, these defences would not be inconsistent, since the question of truth or of privilege in regard to the matter alleged may well be decided without reference to the fact of its publica- tion. Payson v. Macomher, 3 Allen, 69. See Cassidy v. Far- rell, 109 Mass. 397 ; Suit v. Woodhall, 116 Mass. 547, cited, ' post, under § 20 ; and Stephen on Pleading, * 340. An objection that the defences set forth in an answer are inconsistent can be taken by demurrer only. Lyons v. Ward, 124 Mass. 364. Denials in Answers. ' Sect. 17. The answer shall deny in clear and precise terms every substantive fact intended to be denied in each count of the declaration separately, or shall declare the de- fendant's ignorance of the fact, so that he can neither admit nor deny, but leaves the plaintiff to prove the same. (St. 1852, c. 312, § 14 ; Gen. Sts. c. 29, § 17.) § 17.] NOTES AND DECISIONS. 457 The rule is important, for a substantive fact alleged with substantial precision and certainty, and not denied in clear and pi-ecise terms, is deemed to be admitted. § 28, post. "An omission to deny a fact necessary to the maintenance of the action, but not alleged in the declaration, is not to be deemed an admission of such fact." Bigelow, C. J., in Jones V. Andover, 10 Allen, 22, citing Tarhell v. Gray, 4 Gray, 444. "The rules of the Practice Act, which require an explicit denial of each fact which the defendant intends to controvert, apply to personal actions only." Warner v. JSrooks, 14 Gray, 111. " Formerly, by pleading the general issue, everything was open to proof which went to show that the plaintiff's claim was invalid through fraud or illegality, or was. in its incep- tion, void in law. . . . There being now no general form of denying the plaintiff's right to recover, the defendant is com- pelled to deny every substantive fact alleged by the plaintiff in his declaration, or declare his ignorance thereof and leave the plaintiff to his proof. These provisions enable the de- fendant, by an answer denying the plaintiff's allegations, to put in issue "only such matters as are properly averred in the plaintiff's declaration." Bigelow, J., in Mulry v. Mohawk Valley Ins.- Co.', 6 Gray, 541'. A defendant who answers that he is ignorant of what the plaintiff alleges, and therefore can neither admit nor deny, may introduce evidence to rebut the plaintiff's case. Knapp V. Slocomb, 9 Gray, 73. Under an answer simply denying that the plaintiff is the holder of the note which is the subject of suit, the defendant will not be allowed to prove that the plaintiff is not, and never was, the owner or holder of the note. Hawes v. Ryder, 100 Mass. 216. In an action brought by a mutual fire insurance company to recover an assessment on a deposit note, an allegation in the declaration that the directors " made, agreeably to their act of 458 MASSACHUSETTS PKACTICE. [§ 17.. incorporation and by-laws, an assessment," is sufficiently an- swered by a denial " that any such assessment has been made as is set forth in the plaintiff's declaration," and the defendant will be allowed, at the trial, to deny the validity of the assess- ment. People's Equitalle Fire Insurance Co. v. Arthur, 7 Gray, 267. In an action on an account annexed, in which the answer merely denied the allegations in the writ, it was held that after the plaintiff's evidence had shown a special contract on conditions, the defendant might show, under his answer, that these conditions were not complied with. Wall v. Provident Institution for Savings,, 3 Allen, 96. In an action on an account annexed for services rendered, the defendant, under a general denial, may introduce e^ndence of the plaintiff's negligence and want of skill. " This was not matter in avoidance of the plaintiff's action, but met the plain- tiff's evidence upon an issue on which the burden was on him." Caverly v. McOwen, 123 Mass. 574. It was formerly held that a general denial put a plaintiff described as a corporation on proof of its corporate character. Sungerford NatH Bank v. Van Nostrand, 106 Mass. 559 ; but it is now provided (§ 87, posf), that the fact of incorporation " shall be taken as admitted unless the party controverting the same files in court, within ten days from the time allowed for answer, a special demand for proof of such fact." One who has contracted with a de facto corporation cannot impeach the legality of its organization when sued upon his contract. Butcher^ & Drover^ Bank v. McDonald, 130 Mass. 264. In a suit against the indorser of a promissory note, an an- swer denying " each and every allegation of the plaintiff," entitles the defendant to prove that the indorsement was made without consideration, although the declaration did not aver that the note was indorsed for value, and no such defence was set up in the answer. Davis v. Travis, 98 Mass. 222. And § 17.] NOTES AND DECISIONS. 459 in a like action against the maker, under an answer denying that the defendant ever made or signed the writing declared upon, it was held that he might show that the note had been materially altered since it was signed. Lincoln v. Lincoln, 12 Gray, 45. In an action on a promissory note, it was held not, compe- tent for the defendant to show that the note sued on was void for want of a revenue stamp, undei" an answer "which merely denied that the defendant owed the plaintiff anything. Bruce V. Mathews, 101 Mass. 64. The objection that a conditional note payable to order is not negotiable, may be made at the trial of an action thereon, under a general denial, the plaintiff having alleged that it was made to order and indorsed to him, and set forth a copy of the note. Euhhard v. Moseley, 11 Gray, 170 ; Stults v. Silva, 119 Mass. 137.i In tort for trespass to real estate, under an answer denying the plaintiff's seisin, the defendant may put in evidence a deed of the plaintiff's grantor prior to that relied upon by the plain- tiff, although no mention of such prior deed is made in the answer. Walker v. Swasey, 2 Allen, 312. A defendant, whose answer denies " each and every allega- tion " of a declaration which alleges that he " wrongfully, wil- fully, and without right " dug a ditch in the highway, cannot justify by showing that he acted by authority of the highway surveyor. Snow v. Chatfield, 11 Gray, 12. In an action of contract, it is open to a defendant, under a general denial, to show what the contract with the plaintiff really was ; for such evidence tends to meet and rebut the plaintiff's case as well as to sustain the defendant's denial. Knapp V. Slocomb, 9 Gray, 73; Rodman v. Chiilford, 112 Mass. 405 ; Warren v. Ferdinand, 9 Allen, 357. In an action against the principal and sureties upon a bond ^ In the above case Gray, C. J. , said that, if judgment had been ren- dered on default, the objection might have been raised on writ of error. 460 MASSACHUSETTS PRACTICE. [§ 17. to dissolve an attachment, the declaration in which alleges a final judgment for the plaintiff against the principal defend- ant in the original action, the defendants may, under a joint answer consisting of a general denial only, show that no final judgment has been rendered which is still in force. Fogel V. Bessault, 141 Mass. 154. In an action to recover rent from a tenant at will, in which the answer is a general denial, the defendant may show that the tenancy has terminated, and that the plaintiff waived the insufficiency of the defendant's defective notice of an inten- tion to quit. Boynton v. Bodwell, 113 Mass. 531. In an action for use and occupation, the defendant may prove a written lease under an answer that denies each and every allegation of the declaration. Warren v. Ferdinand, 9 Allen, 357. In malicious prosecution, evidence that the defendant, when instituting the prosecution, acted under the advice of counsel, is admissible under a general denial. Folger v. Washburn, 137 Mass. 60. In an action for the price of beef sold and delivered, the answer was a general denial, joined with an allegation that the meat " was tainted and unwholesome, and known to the plaintiff to be such at the time of the sale and delivery." In sustaining the defendant's exceptions to a ruling as to the burden of proof, the court held that, under the declaration and answer, the question was whether the plaintiff sold and delivered to the defendant good merchantable meat. Zoller V. Morse, 130 Mass. 267. In an action by assignees in insolvency against the insol- vent's vendee, for conversion of property alleged to have been conveyed to them by the insolvent with intent to give a pre- ference, it was held that, under a general denial, the defend- ant might show that the plaintiffs had affirmed the sale. Sn^w V. Lang, 2 Allen, 19. Any matter in discharge or avoidance of a debt once existing § 17.] NOTES AND DECISIONS. 461 must be specially pleaded, but any matter, which shows that the debt never existed may be given in evidence under a general denial. Marvin v. Mandell, 125 Ma8S.-562. In an action of tort for breaking and entering the plaintiff's close, an answer, in which the defendants " deny, upon their personal knowledge, that they entered the plaintiff's close as described in the plaintiff's writ," puts in issue the plaintiff's title. Bennett v. Clemenee, 6 Allen, 10. In such an action, an answer which denies all the allegations in the plaintiff's declaration puts the plaintiff on proof of his exclusive right to possession of the whole land ; and under such a general denial the defendant may show that he is tenant in common with the plaintiff of the la,nd in question, and therefore not liable as a trespasser. But any matter of excuse or justification, or any warrant or authority, or any satisfaction of the alleged tres- pass, must be pleaded specially. Bawson v. Morse, 4 Pick. 127 ; Hastings v. Hastings, 110 Mass. 280. An answer in an action of 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, and the latter is not entitled to a verdict without offering evidence of ownership. Chase v. Allen, 5 Allen, 599. The defendant, in replevin, under an answer denying the plaintiff's title and right of possession, may show a right of property in himself or in another per- son. Verry v. Small, 16 Gray, 121 ; Foye v. Patch, 132 Mass. 105. A declaration alleged that the defendant, by a memoran- dum signed by his duly authorized agent, sold a house to the plaintiff. The defeiidant's answer denied that he ever made, or authorized the alleged agent to make any such memoran- dum or to offer the house for sale, or that he ever sold or offered to sell the house to the plaintiff. It was held that, under the last allegation, the defendant might show that the alleged agent did not, in fact, make the sale and memo- 462 MASSACHUSETTS PKACTICE. [§§ 17-19. randum set forth in the declaration. Moss v. Bliss, 110 Mass. 293. A denial in an answer, that any warrants were given to an officer, authorizes proof that the warrants, which were in fact given, were void. Williamstown v. Willis, 15 Gray, 427. In an action to recover damages for an injury received by reason of a defective way, in whicli the declaration alleged due care on the plaintiff's part, an answer traversing the allegation of due care traverses also the implied allegation that the plaintiff was rightfully in the way. Jones v. Andover, 10 Allen, 18. It seems that, in an action for wages, an answer which merely sets up a special contract does not admit the value of the plaintiff's services as charged in his bill of particulars. Hyland v. Giddings, 11 Gray, 232. In an action against the owners of a vessel for necessary disbursements for repairs in a foreign port, the answer did not deny that the defendants were owners or that the dis- bursements were necessary, but alleged that they were fur- nished on the credit of the charterers. The court held that the whole answer must be taken together, and that the plead- ings did not show any admission on which the defendants could be charged. Bass v. O'Brien, 12 Gray, 477. Sect. 18. 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 allegation or denial is applicable, specifying the number of the items thus answered together when less than the whole. If the defend- ant denies that an item is due or payable, or that he owes the plaintiff as alleged, he shall state all the substantive grounds on which he intends to rest such denial, and shall specify whether some and what part or the whole of such item or demand is denied. (St, 1852, e. 312, § 15 ; Gen. Sts. c. 129, §18-) Sect. 19. In all cases in which a denial is made by answer, affidavit, or otherwise, concerning a time, sum, quantity, or §§ 19, 20.] NOTES AND DECISIONS. 463 place alleged, the party denying shall declare whether sucli denial is applicable to every time, sum, quantity, or place, or not ; and if not, what time, sum, quantity, or place, he admits. (St. 1852, c. 312, § 16 ; Gen. Sts. c. 129, § 19.) In an action on an account annexed, for services rendered, an answer which does not specifically deny that the services were actually rendered, but simply denies that the defendant owes the plaintiff anything, is insufficient as amounting to a plea of the general issue, which plea is abolished by § 15 ; and such answer must be held to admit the truth of the plain- tiff's allegation of services rendered. Van Buren v. Swan, 4 Allen, 380. When the account contains items both of debit and credit, and the answer admits the correctness of the items of credit, both parties are bound by their respective allegations, and neither can contradict what the one has asserted and the other admitted, and an auditor has no power to reduce the amount of an item of credit so asserted and admitted.. Snow- ling V. Mummer Granite Co., 108 Mass. 100. Allegations in Answers. Sect. 20. The answer shall set forth in clear and precise terms each substantive fact intended to be relied upon in avoidance of the action ; and when the answer sets up the statute of 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. (St. 1852, c. 312, § 18 ; Gen. Sts. c. 129, § 20.) " Neither party shall set forth in his declaration or answer any matters but those upon which he intends to rely ; and if he shall so do, he shall pay to the opposite party the costs of witnesses occasioned thereby." Rule XV. Sup. Ct. " Substantive facts which only amount to evidence tending to prove the facts in issue need not be specified in the answer, for the parties are not bound to set forth their evidence in their pleadings." Chapman, J., in Snow v. Lang, 2 Allen^lS ; 464 MASSACHUSETTS PRACTICE. [§ 20. I Kntpp V. Slocomh, 9 Gray, 73 ; Verry v. Small, 16 Gray, 121; Warren v. Ferdinand, 9 Allen, 357. The attempt is sometimes made to evade the rule against inconsistent defences (see § 16, ante) hy making the defence, which otherwise would clearly be inconsistent, conditional upon the plaintiff's successfully controverting a former de- fence set up. Thus, in an action upon a recognizance the defendant may allege, first, that he never entered into the recognizance ; and, second, that if the plaintiff shall prove that he did enter into such a recognizance, then the defendant will prove that the conditions of said- recognizance have been performed. By this means, the plaintiff would first be put upon formal proof of the recognizance in every particular, and would then have to meet the real defence to the action, as set forth in the second count. Such pleading has been condemned, as not stating any facts positively. Cassidy v. Farrell, 109 Mass. 397. This was an action, on an account annexed, for the price of goods sold and delivfered, and the answer, after denying generally the allega- tions of the plaintiff, alleged that " if the plaintiff shall offer any evidence tending to prove the items in the account, the defendant will offer evidence tending to prove that said items were spirituous and intoxicating liquors, sold, delivered, and carted by the plaintiff to the ^defendant in violation of the laws of this Commonwealth, and without consideration, and against law, equity, and good conscience." It was held, that the defendant, under this answer, could not set up the defence that the liquors were sold in violation of law, because there was no positive averment that they were so sold. The same principle was affirmed in Suit v. Woodhall, 116 Mass. 547. This was an action on an account annexed for goods (intoxicating liquors), sold and delivered. • The defend- ant in his answer first alleged ignorance of the sale, and left the plaintiff to prove the same, and further pleaded that " if it shall appear " that the plaintiff sold and delivered the goods § 20.] NOTES AND DECISIONS. 465 to the defendant, " it will also appear " that they were sold by the plaintiff to the defendant in violation of law. The court said : " The answer contains no clear and precise allegation that the goods sued for were sold illegally, but only that if it shall appear that the goods were sold as alleged in the declara- tion, it will also appear that they were sold in violation of law. The issue thereby tendered is not whether there was an illegal sale, but whether, in a certain contingency, it will appear that there was an illegal sale. If the plaintiff had demurred to the answer, his demurrer would not have admitted an illegal sale, but merely that it might appear that there was such an illegal sale. And if he had filed a replication denying all the allegations in the answer, his denial would in like manner have been limited to what might be made to appear, and no issue would be joined upon what the fact was." See also Jackman v. Doland, 116 Mass. 550 ; Caverly v. McOwen, 123 Mass. 577 ; Wentworth v. Bows, 117 Mass. 14. In Swett V. Southworth, 125 Mass. 417, a suit upon a promis- sory note, in which the plaintiff, to the point that the answer did not sufficiently aver payment, cited Suit v. Woodhall, Jack- man V. Doland, and Caverly v. McOwen, supra, the court said : " The defence of payment is positively averred in the answer. After a general denial ' the defendants aver that if the plain- tiffs shall prove the making of the note declared on, or any of the items in the plaintiffs' bill of particulars, the same have been fully paid.' The case is clearly to be distinguished from Caverly v. McOwen, and the other cases cited by the plaintiffs." Under an answer to a declaration for goods sold and de- livered, alleging that, if the defendant bought such goods of the defendant, " he did so through the false and fraudulent representations made by the defendant," but containing no allegations as to what constituted, or what were the circum- stances of the alleged fraudulent representations, evidence of such representations is admissible, the plaintiff not having 30 466 MASSACHUSETTS PKACTICE.' [§ 20. called for a bill of particulars, as provided for in § 57. Goodsell Y. Trumbull, 135 Mass. 99. In an action upon two promissory notes, the answer denied the making of the notes, pleaded want of consideration and payment, and further alleged that, " if the plaintiff shall show that he made said notes, then the defendant says the same were given as a part payment of the consideration of certain real estate." The court says that the last matter of defence " is set forth in an insufficient and defective manner." Davis V. Bean, 114 Mass. 358. Whenever the defendant intends to rest his defence upon any fact which is not included in the allegations necessary to the support of the plaintiff's case, or if he relies on any legal bar to the plaintiff's claim, such as the statute of frauds or statute of limitations, he must set it out in clear and precise terms in his answer ; and, as the plaintiff is not bound to aver anything which tends to defeat his action, or which shows that his claim is illegal or void in its inception or otherwise, all such matters must be set out and averred in the answer. Mulry V. Mohawk Valley Ins. Co., 5 Gray, 543 ; Middlesex Co. V. Osgood, 4 Gray, 448.^ See Boston Duck Co, v. Dewey, 6 Gray, 446. 1 Under the interpretation of § 20, adopted by the court in the above case, it seems to be impossible for the defendant to avail himself of the benefit of either of the statutes named, unless he has set them up spe- cially in his answer, even although the facts which make them available for a defence may be elicited, for the first time, at the trial of the cause. At common law there was in use a special plea (in assumpsit, non assump- sit infra sex annos) by which the facts which would call for an application of the statute of limitations might be set up (Chitty, PI. 2, * 450 ; Stephen, PI. *186); and it is doubtful if this defence could have been taken advantage of under the general issue in any case: Chitty, PI. 1, *476 ; Gould, PI. § 53. But the benefit of the statute of frauds might always have been taken under the general issue (Gould, § 53; 1 Chitty, PI. * 471 ; 5 M. & W. 456; 11 A. & E. 438; 3 P. & D. 276), and a plea setting up this defence specially was held bad on demurrer, as being nothing but an argumentative denial of the contract. 10 M. & W. 393 ; 11 Price, 500; 5 Bligh, N. 8. 25. § 20.J NOTES AND DECISIONS. 467 When the fact that a promissory note was barred by the statute of limitations is not a fact in avoidance of the action, but goes only in mitigation of damages, the defendant is not bound to plead the statute in order to avail himself of the benefit of the statute in such mitigation. Slocum v. Riley, 145 Mass. 370. The defence that a promissory note was obtained of the maker by fraud, for a worthless consideration, is not available under a general denial. Hunting v. Downer, 161 Mass. 275. Where it was attempted to support an allegation in a decla- ration that the defendant made " a certain contract in writ- ing " with the plaintiff, by offering in evidence a contract not signed by the defendant, it was held that the objection of variance was open to the defendant (thus distinguishing the case from Middlesex Co. v. Osgood, 4 Gray, 448), although he had not set up the statute of frauds in his answer. Beid v. Stevens, 120 Mass. 209. If a former judgment is relied upon in avoidance of the action, it must be set forth in the answer, as, for instance, a discharge in insolvency ; but if the judgment is an adjudica- tion between the same parties and against the plaintiff, of issues which tend directly to disprove the allegations con- tained in the declaration, it is admissible in evidence under an answer denying those allegations. Foye v. Patch, 132 Mass. 105. The publication of bankruptcy or insolvency proceedings is legal notice; to all persons, by which they are bound, and evi- dence of the defendant's bankruptcy is admissible to defeat an action against him, although not set up in the answer. Eustis V. Belles, 146 Mass. 413. In an action on a promissory note, under an answer that alleges an illegal consideration, it is competent to show that the note sued on was given in renewal of former notes, the consideration of which was illegal. Chenery v. Barker, 12 Gray, 345. 468 MASSACHUSETTS PRACTICE. [§ 20. In a suit against the indorser of a promissory note, the defendant answered that " the plaintiff reserved a greater rate of interest than is allowed by law at the time of dis- oounting said note for defendant, to wit, the sum of four dollars and fifty cents." It was held that this answer did not set forth a usurious contract or reservation of usurious interest with sufficient certainty and precision. Clarke v. Hastings, 9 Gray, 64. In an action against surviving partners on a note made by the partnership, the answer denied the existence of the liabil- ity, and alleged that the partnership had expired and was dissolved before the note was given. The court held that, under this answer, the defendants might show the mode of dissolution. Marlett v. Jackman, 3 Allen, 287. When, in an action upon a promissory note, the only de- fence set up by the answer is want of consideration, it is not competent for the defendant to prove in reduction of damages either a breach of warranty or fraudulent representations as to the value of the goods in payment for which the note was given. But had the breach of warranty or fraud been spe- cially set up in the answer, such defence would have been open to the defendant, since it is now admissible to allege and prove in defence what was formerly only the subject of a cross-action. Wentworth v. Bows, 117 Mass. 14, and cases cited. In an action of contract against a common carrier for neglecting to carry and deliver goods according to the terms of a bill of lading which is made part of the declaration, the defendant cannot avail himself of the facts that the bill of lading did not run to the plaintiff, and that the defendant had received no notice of the right of the plaintiff to control the bill of lading, unless such facts are set forth in the answer. Alden v. Pearson, 3 Gray, 342. In an action for the conversion of goods, to which the answer was a general denial, the defendant offered in evi- § 20.] NOTES AND DECISIONS. 469 dence certain records of the Municipal Court of the City of Boston, to show that he lawfully took the goods as an officer. The court refused to admit the records,, but afterwards ad- mitted them upon the defendant's offer to amend his answer so as to set up the records, which offer he afterwards declined to carry out. It was held that the evidence was not admissi- ble under the answer. Savage v. Darling, 151 Mass. 5. In an action to recover for work and labor, the first count set forth a special contract, and the second was a general count for work and labor. It was held that the objection, that the action was prematurely begun, was not open to the defendant without setting it up as a defence in the answer, and that, in defence to the second count, he could not set up the contract alleged in the first count, without alleging such contract in the answer. Bead v. Scituate, 7 Allen, 141 ; North Bridgewater BanJc v. Copeland, 7 Allen, 189. The illegality of a contract cannot be relied on in defence to an action brought upon it, unless such illegality appears on the face of the declaration, or has been specially pleaded. Goss V. Austin, 11 Allen, 525. Thus, in an action on a check, the defendant will not be allowed to show that the con- sideration of the check was intoxicating liquors sold in violation of law, unless this defence has been specially set forth in the answer. Bradford v. Tinkham, 6 Gray, 494. And, in an action on an account annexed for lumber sold and delivered to the defendant, the answer being a denial of the sale and delivery of the articles mentioned in the account annexed, it was held that the fact that the lumber was not surveyed as required by statute could not be proved under the answer. Granger v. Hsley, 2 Gray, 521. Nor can the defendant avail himself of the objection of illegality when disclosed by the testimony for the plaintiff, unless the court refuses to entertain the case. Cardoze v. Smith, 113 Mass. 250. In an action on a bond, after trial and judgment for the 470 MASSACHUSETTS PKACTICE. [§ 20. penal sum, the defendant will be allowed to offer evidence of payments, although not set forth in the answer. The Prac- tice Act is not applicable to such cases. Merrill v. Mclntire, 13 Gray, 157. See Pub. Sts. c. 171, §§ 9-12. In an action against an insurance company to recover for a loss, it was held that a misrepi'esentatiou by the assured not specified in the defendant's answer cannot be relied on to defeat an action on the policy, although such misrepresenta- tion is first disclosed by the plaintiff's evidence. Mulry v. Mohawk Valley Insurance Co., 5 Gray, 541. See also Ras- kins V. Hamilton Mutual Insurance Co., 5 Gray, 432. Evidence tending to show an adjustment of damages by a defendant cannot be admitted, unless specially set up in the answer. Parker _ v. Lowell, 11 Gray, 358. So, in an action on an account annexed, in which the defendant pleads a general denial and alleges payment, the defence of accord and satis- faction is not open under the answer. Griwmll v. Spink, 128 Mass. 25. An answer which alleges that the several items on each side of the account between the parties have been set against one another and the balance struck and ad- justed sufficiently pleads an insimul coTnputassent without alleging the several items, and the consideration thereof, or the legal effect of the facts stated. " By our practice act it is sufficient to plead the material facts necessary to constitute a cause of action, or a defence, without averring their legal effect." Band v. Wright, 129 Mass. 50. If, in a suit by assignees of an insolvent debtor, the defend- ant wishes to show ,that the account sued on was sold by the assignees before the beginning of the action," he must allege the fact in his answer. Oushman v. Davis, 3 Allen, 99. In an action for goods sold and delivered, the defendant may prove that the goods were sold and delivered to a third party, and that the defendant's promise to pay for them was a collateral agreement only ; and this he may do without plead- ing the statute of frauds. Boston Buck Co. v. Dewey, 6 Gray, § 20.] NOTES AND DECISIONS. 471 446. And where the answer did not deny the sale and de- livery, but set up a special contract that the articles should be of a certain quality, and alleged a breach of such contract by the plaintiff, it was held that " the burden of proof was on the defendant, under these pleadings, to prove the contract he alleged and also the breach of it." Lothrop v. Otis, 7 Allen, 437. In an action for the breach of a contract, the defendant cannot, in reduction of damages, rely upon the plaintiff's breach of an independent stipulation in the contract without alleging such breach in his answer. Zamson & Goodnow M'f'g Go. v. Eussell, 112 Mass. 387. If a defendant, in an action of tort for conversion, relies upon the fact that the plaintiff's title is void as against credi- tors, he must set up this defence specially in his answer. Thissell v. Page, 11 Gray, 394. See Parsons v. Dickinson, 11 Pick. 352. If a defendant's answer, in an action for assault, admits the violence alleged, the burden is on him to prove his justifi- cation ; and the rule is not changed by the Practice Act. Blahe v. Bamon, 103 Mass. 199. Evidence of justification is inadmissible under a mere general denial. Cooper v. McKenna, 124 Mass. 284 ; and under such an answer the defendant cannot show that, by virtue of certain leases signed by the plaintiff, he had a right to enter the plaintiff's premises "without being guilty of any trespass or wrong." Levi v. Broohs, 121 Mass. 501. Under an answer to a declaration in trespass quare clausum /regit, which consists of a general denial of the facts alleged in the plaintiff's declaration, the defendant cannot show authority under one having title and possession. Ward v. Bartlett, 12 Allen, 419 ; nor will he be allowed to prove a license, unless it is set up in the answer. Hollenheck v. Rowley, 8 Allen, 473. The defence that the words set forth in a declaration for 472 MASSACHUSETTS PRACTICE. [§§ 20, 21. slander were privileged is not available unless distinctly set forth in the answer. Goodwin v. Daniels, 7 Allen, 61. Non-joinder of plaintiffs in actions of tort must be pleaded in abatement ; but misjoinder of plaintiffs need not be so pleaded, and at common law might have been given in evi- dence under the general issue, or taken advantage of at any stage of the case at which it appeared. Whether, since the Practice Act, the defendant is not required by law to specify the defence of misjoinder in his answer, instead of merely denying all the plaintiff's allegations, qucere. See Bullock v. Hayward, 10 Allen, 460 ; Gould's PI. c. 5, §§ 111-113 ; Glover v. Hunnewell, 6 Pick. 222; Putney v. Lapham, 10 Cush. 232. Where the answer did not allege misjoinder, but the defend- ants, without objection, introduced evidence at the trial tend- ing to show misjoinder, it was adjudged too late after verdict, for the plaintiffs to object to the insufficiency of the answer. Bulloch V. Hayward, 10 Allen, 460. For a case in which the answer is not fully set forth in the report, but where it was held insufficient as not setting up any distinct or substantive ground of avoidance of the plaintiff's action, but as merely stating the specific ground on which the defendant relied, see Libly v. Downey, 5 Allen, 299. A second answer cannot be filed without leave of court, and the admission of evidence under such an answer, filed without leave, is ground for exception. Hulhert v. Comstock, 11 Gray, 14. Special Denial of Signatures. Sect. 21. Signatures to written instruments declared on or set forth as a cause of action, or as a ground of defence or set- off, shall be taken as admitted, unless the party sought to be charged thereby files in court, within the time allowed for an answer, a special denial of the genuineness thereof, and a demand that they shall be proved at the trial. (St. 1877, c. 163.) § 21.] NOTES AND DECISIONS. 473 The special denial of the genuineness of the signature to a written instrument required by the statute, if imperfect, may be amended in the discretion of the court, and to the exercise of such discretion no exception lies. Ham v. Kerwin, 146 Mass. 378. In an action upon a promissory note, an answer that " the defendant denies the signature of the alleged note described in the plaintiff's declaration " is not sufficient to require the plaintiff to prove the signature. Spooner v. Gilmore, 136 Mass. 248. Where an action on a promissory note was brought in a police court, and the defendant in that court filed a sufficient denial of the signature and demand for proof ; and on ap- peal the defendant filed in the Superior Court an answer containing a general denial and matter in avoidance, but did not file a new denial of the signature ; it was held that the special denial and demand which had been filed in the police court were sufficient to put the plaintiff on proof of the signa- ture in the Superior Court. The court said : " The defendant had pleaded orally in the lower court, as he might do, but had filed in writing the special denial and demand. When he filed a new answer in the Superior Court, this special denial was not withdrawn. Having been seasonably filed in the lower court, it was transmitted to the Superior Court, and was properly before it. It did not require to be there again filed in order to deprive the plaintiff of the advantage he would have had in his proof, if it had not been filed." True v. Billon, 138 Mass. 347. The signature intended is the signature of the party sought to be charged thereby, which creates against such party a cause of action or a ground of defence. The statute, there- fore, does not apply to the signature of a witness to an attested note required to take the note out of the statute of limitations. Holden v. Jenkins, 125 Mass. 446. The court says : " The design of " this section is " to save the party who relies upon 474 MASSACHUSETTS PRACTICE. [§§ 21, 22. a •written instrument the trouble and expense of proving the signature, unless the adverse party, whose signature it is, will take the responsibility of a special denial of its genuine- ness, this being a fact especially within his personal knowl- edge. The language of the statute implies that the signature intended is the signature of the party whose duty it is to file the denial. The signature of an attesting witness is not of this character. . . . The admission of the genuineness of the defendant's signature implied by the statute might relieve the plaintiff of the necessity of calling the subscribing witness merely for the purpose of proving the signature ; but we are of opinion that it does not relieve the plaintiff of the burden of proving, in reply to the plea of the statute of limitations, the material fact that the defendant signed the note in the presence of an attesting witness." D. & M. were sued as " late copartners under the firm name and style of D. & Co." and the declaration alleged that they made a promissory note signed " D. & Co." D. alone appeared and filed a general denial, and this was held to be an admis- sion that the signature was that of D. Hashins v. D'Este, 133 Mass. 356. In an action upon a promissory note it was held that the defendant's omission to deny the genuineness of his signa- ture did not prevent him, under the denial in the answer that he made the promissory note declared on, from insisting that the note had 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. Cape Ann National Bank v. Burns, 129 Mass. 596. Written Instruments. Sect. 22. Written instruments, when relied on in an an- swer or subsequent allegation, shall be set out, or copies or the originals shall be filed, in the manner prescribed in the ninth § 22-24.] NOTES AND DECISIONS. 475 clause of section two when they are declared on. (St. 1852, c. 312, § 2 ; Gen. Sts. c. 129, § 21.) See notes and decisions under § 2, cl. 9, ante. Conditional Obligations, &c. Sect. 23. "When a conditional obligation, contract, or grant, is relied on in an answer or subsequent allegation, the condition shall be deemed a part of the instrument, and simi- lar averments shall be required in pleading on the same as are required by the tenth clause of section two. (St. 1852, c. 312, § 2 ; Gen. Sts. c. 129, § 22.) See notes and decisions under § 2, cl. 10, ante. PLEADINGS AFTER ANSWER : REPLICATION. Sect. 24. No further pleading shall be required after the answer, except by order of the court as hereinafter mentioned. But the plaintiff may demur to the answer ; and if the answer contains any new matter in avoidance 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 to state whether he admits or denies any, and if any, what part, thereof. The plaintiff may without such order file, at any time before trial, a replication to the answer, clearly and specifically stating any facts in reply to the new matter therein. (St. 1852, c. 312, § 19 ; Gen. Sts. c. 129, § 23.) If no replication is filed, any new matter set up in the an- swer in avoidance of the action is always deemed to be denied by the plaintiff, and must be proved by the defendant. But if the plaintiff, either voluntarily or by order of the court, files a replication, and does not therein deny the allegations of the answer, he will be deemed to have admitted the truth of the allegations contained in the answer, and no proof will be re- quired of the facts so set forth. Murphy v. People's EguitaUe Mutual Fire Ins. Go., 7 Allen, 240. But if the answer to a declaration on a promissory note sets up want of considera- tion and the statute of limitations, a replication which simply traverses the second ground of defence is correct, and does 476 MASSACHUSETTS PRACTICE. [§ 24. not admit the want of consideration, because it is not neces- sary for the plaintiff in his replication to deny such matter in the answer as is already in issue on the original plead- ings. Ballou V. Wells, 12 Allen, 485. See Davidson \. Delano, 11 Allen, 523. The parties being allowed, after answer and replication, to file a new declaration and answer on which the case goes to trial, the plaintiff may controvert the allegations . of the sec- ond answer, or those incorporated into it by reference to the first answer, although such allegations were not denied in the replication. Stevens v. Parker, 7 Allen, 361. Where the answer to a declaration for money had and received contained a general denial, and alleged that the defendant had duly accounted for and paid all moneys ever received by him of the plaintiff ; it was held that the plaintiff was entitled to file a replication stating that the defendant had never paid him, and that the accounts rendered were false and fraudulent. Todd v. Bishop, 136 Mass. 386. After a trial resulting in a disagreement of the jury, a replication may be filed at a,ny time before a second trial. Burke v. Miller, 4 Gray, 114. In a suit on a promissory note, in which the answer sets up a discharge in insolvency, and no replication is ordered by the court, the plaintiff may prove a new promise without having alleged it in his declaration. Cook v. Shearman, 103 Mass. 21 ; Wny v. Sperry, 6 Cush. 241. And if the answer sets up a release, and the release is put in evidence, it is competent for the plaintiff to show that the release was obtained by fraud, although no replication is filed by him. Lyon v. Manning, 133 Mass. 439. Where two issues were raised and tried, one of which was the fraud of the defendant in obtaining the money sued for, and the other was the minority of the plaintiff at the time of the making of the contract under which the money was paid, the jury returned a general verdict for the plaintiff. The § 24.] NOTES AND DECISION. 477 defendant afterwards obtained his discharge in bankruptcy and pleaded it in bar, and it was held that the plaintiff should file a replication to such plea, that his debt was created by the fraud of the bankrupt ; and that a motion for judgment, notwithstanding the plea, was properly denied. Kellogg v. Kimball, 135 Mass. 125. The defendant, in an action of contract, pleaded a certificate of discharge in insolvency, to which the plaintiff replied that it was obtained by fraud. It was held,, on these pleadings, that the defendant was properly allowed to show by record evidence, without further pleading, that in a former suit between the same parties the same issue was raised and decided in favor of the defendant. Merriam v. Whittemore, 6 Gray, 316. In an action of contract grounded on the negligence of the defendant as a common carrier, the court says : " It might, perhaps, be necessary under the English practice, when a special contract is pleaded, that the plaintiff should file a replication alleging negligence. See Butt v. Great Western Railway Co., 11 C. B. 140. But under our Practice Act, no replication having been ordered by the court, the plaintiffs might without further pleading disprove the defendants' alle- gation that they exercised reasonable and proper care and diligence. Gen. Sts. c. 129, § 23. If that allegation was disproved, the defence founded on the special contract was not sustained." School District in Medfield v. Boston, Hart- ford, & Erie R. R., 102 Mass. 552. In an action upon an account annexed, the answer alleged that all the charges were furnished under a special contract. The plaintiff filed a replication alleging that such contract, if made, was invalid under the statute of frauds. It was held that the only issue presented was as to the existence and validity of the contract, and that the plaintiff could not prove that the account annexed included items outside the contract. Friend v. Pettingill, 116 Mass. 515. 478 MASSACHUSETTS PRACTICE. [§§ 25, 26. Demurrer by Replication. Sect. 25. The replication may raise an issue in law by the statement that the plaintiff demurs to the answer or to so much thereof as applies to one or more counts in the declara- tion, as the case may be, assigning specially the causes of such demurrer ; and in like manner either party may demur to the allegation of the other party. But no defect of form merely, either in the declaration or subsequent allegation, shall be as- signed as a cause of demurrer. The opposite party shall be deemed to join in demurrer if he does not amend, which he may do within such time and upon such terms as the court may allow. (St. 1852, c. 312, § 20 ; Gen. Sts. c. 129, § 24.) A party may demur to a particular and distinct allegation, 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 under our statute co-extensive with the right to demur under the system of special pleading. It is no objec- tion to a demurrer to part of an answer, that the other parts of the answer are not replied to. Parhhurst v. Ketchum, 6 Allen, 407 ; Montague v. Boston & Fairhaven Iron Works, 97 Mass. 502. Objections to the inconsistency of defences in the answer can only be taken by demurrer. Lyons v. Ward, 124 Mass. 364. NEW PACTS: SUPPLEMENTAL PLEADING. Sect. 26. An answer or replication may allege facts which have occurred since the institution of the suit, and the plain- tiff and defendant may be allowed by the court to make a supplemental declaration, answer, or replication, alleging material facts which have occurred or come to the knowl- edge of the party since the former declaration, answer, or replication. (St. 1852, c. 312, § 24 ; Gen. Sts, c. 129, § 25.) No such supplemental answer can be filed without leave of court and upon compliance with such terms in the matter of costs as the court may impose. Savage v. Stevens, 128 Mass. 254, 257. §§ 27, 28.] NOTES XBO DECISIONS. 479 ALLEGATIONS IN THE ALTERNATIVE. Sect. 27. Either party may allege a fact or title alterna- tively, declaring his belief of one alternative or the other, and his ignorance whether it is the one or the other. (St. 1862, c. 312, § 25; Gen. Sts. c. 129, § 26.) PLEADINGS — HOW CONSTimBD.l Sect. 28. The allegations and denials of each party shall be so construed by the court as to secure as far as possible substantial precision and certainty, and to discourage vague- ness and loose generalities. A substantive fact alleged with substantial precision and certainty, and not denied in clear and precise terms, shall be deemed to be admitted. No party shall be required to state evidence, or to disclose the means by which he intends to prove his case. (St. 1852, c. 312, § 26 ; Gen. Sts. c. 129, § 27.) '* We do not understand that the Practice Act requires a defendant in his answer to set forth the fact or facts on which he relies in avoidance of the action with more clearness and precision than is necessary in a technical plea in bar ; nor do we perceive any reason for holding that evidence which is ad- missible and sufficient in support of the averments in such a plea should not be admissible and sufficient in support of the like averments in an answer." Metcalf, J., in Ghenery v. Barker, 12 Gray, 345. See § 15, ante. The answer will not be deemed to admit a fact not alleged in the declaration, although an allegation of such fact be necessary to set forth a good cause of action. Tarbell v. Gray, 4 Gray, 444. An answer which denies each and every allegation in the plaintiff's writ and declaration contained puts the plaintiff upon proof of the allegations so denied, and is sufficiently clear and precise to answer the reqqirements of the statute. Boston Belief & Submarine Go. v. Burnett, 1 Allen, 410. Thus 1 " By a general rule of law, pleadings, like other statements in writing, are to be construed most unfavorably to the party making them. ' ' Gray, J., in Hawes v. Ryder, 100 Mass. 216, 218. 480 MASSACHUSETTS PRACTICE. [§ 28. the denial by the defendant of each and every allegation in the declaration makes it incumbent on the plaintiff to prove the execution and indorsement of a promissory note on which he has declared as indorsee. Estabroolc v. Boyle, 1 Allen, 412. Where the defendant demurred to a single count of the declaration and did not file an answer to the other counts, it was held that the plaintiff was entitled to judgment on the unanswered counts, both by the principles of the common law and under the Practice Act. Dvnght v. Holbrooh, 1 Allen, 560 ; Case v. Ladd, 2 Allen, 130. A declaration contained two counts, one in insimul comp%- tassent, and the other, for a like sum, for goods sold and deliv- ered, and a bill of particulars had been filed with nothing on its face to make it applicable to either count in particular. The sum claimed in the writ as damages was greater than that claimed in either count, but less than that claimed in both. The an- swer was general and did not in terms apply to either count. It was held that the answer was to be taken as applying to each count of the declaration. BundUtt v. Weeber, 3 Gray, 263. An allegation, in a declaration, of a conclusion of law, drawn from the facts averred, is not traversable, nor ad- mitted by a demurrer, and may properly be rejected as surplusage. Jones v. Dow, 137 Mass. 119. In an action on a promissory note alleged in the declara- tion to have been destroyed, an answer putting in issue the making of the note, and alleging that, if made, it was made for an illegal consideration, admits the destruction of the note. Boston Lead Go. v. McQuirk, 15 Gray, 87. "Where a declaration alleged that the defendant made a promissory note, a copy of which, with the indorsements thereon, was annexed, " and the defendant owes the plaintiff the balance of said note and interest thereon," the only de- fence set up in the answer was that the action " was barred by the statute of limitations." It appeared that the note was more than six years old and had indorsed upon it ac- § 28.] NOTES AND DECISIONS. 481 knowledgments of part payments made within six years, but it was held that the fact of such part payments was not al- leged with sufficient precision and accuracy to be deemed to be admitted by the defendant. Brown v. Wakefield, 1 Gray, 460. Under an answer setting up the statute of limitations in defence to an action on a promissory note, the defendant cannot show, for any purpose, that the note was given with- out consideration, since the allegations contained in the copy of the note annexed to the declaration are not denied in such an answer. Davidson y. Delano, 11 Allen, 523. To a declaration alleging that "the defendants made a promissory note payable to the plaintiffs or order, a copy whereof is hereunto annexed," and that the defendants owe the plaintiffs the amount of said note with interest, the an- swer alleged that the defendants " do not owe the plaintiffs in manner and form declared on, and leave the plaintiffs to prove the same." It was held that the signature was not put in issue by this pleading, because the making of the note was not denied. Framingham Bank v. Gay, 9 Gray, 241. In an action on a bill of exchange purporting to have been accepted by A. & Co., the defendants were described in the writ as copartners under the name and style of A. & Co., and were alleged in the declaration to have accepted the bill. The court held that, by not denying the alleged copartnership in their answer, but the acceptance only, the defendants had admitted the copartnership. Geddes v. Adams, 11 Gray, 384. In Willard v. Williams, 7 Gray, 184, the declaration was as follows : " And the plaintiff says the defendant owes him 11 for money received by his agent, B., of one L., to the plaintiff's use." The answer alleged that the defendant " never, by himself or agent, received the money claimed by the plaintiff in this action, or any other sum for the plaintiff, or to which the plaintiff is in any way entitled." The court held that the defendant had not by his answer admitted that B. was his agent, and might disprove it on the trial. 31 i82 MASSACHUSETTS PKACTICE. [§ 28. A declaration for " money received by the defendant to the plaintiff's use, in the sale by the defendant of the plaintiff's property , entrusted to the defendant to sell, which sum the defendant has received and neglected to account to the plain- tiff for," is a declaration for money had and received, and all of it, excepting the allegation of money had and received, is superfluous and might have been stricken out on motion, but being in, the plaintiff cannot use it to change the real sub- stance of his action. An answer simply denyjng that the defendant received the money does not admit the superfluous matter of the declaration. Woodbury v. Jones, 3 Gray, 261. In an action on an account annexed, for services rendered, the answer simply denying that the defendant owes the amount claimed or any sum whatever, it is not incumbent upon the plaintiff to prove that the services were actually rendered, or that they were of the value alleged. The court says that the answer " was a mere general denial of indebt- ment, and amounted to nothing more than the general issue." Van Buren v. Swan, 4 Allen, 380. A. and B. having bought a farm, in the deed of which B. only was named as grantee, and B. having afterwards sold the farm, it was held, in an action for money had and received, brought- by A. to recover half the purchase-money from B., that the latter might, under a general denial, set up in defence payments made by him on the joint account of the parties. HawTcs v. Hawks, 124 Mass. 457. In an action by an officer far an unpaid balance of the purchase-money for. an equity of redemption sold on execu- tion, it was held that the allegation that the sale had been adjourned by the officer, in the manner by law required, to the time when it actually took place, is sufficiently definite, and it was not necessary to set out the return. Saniorn v. Cham- berlin, 101 Mass. 409. In an action on an order to deliver stock, where the decla- ration alleged a demand upon the order and the answer did §§ 28, 2,9.] NOTES AND DECISIONS. 483 not clearly traverse the allegation, it was held that the want of any demand could not be taken advantage of under the pleadings. Eastern B. B. Co. v. Benedict, 10 Gray, 212. The omission to file an answer denying in clear and precise terms that the stockholders are liable for the debts of the cor- poration is not an admission of such liability. Taylor v. New England Coal Mining Co., 4 Allen, 577. In an action on a policy of insurance, the declaration averred that the defendants had waived a certain condition in the policy. The answer denied such waiver, but did not set up the condition as a distinct ground of defence. The court held that this defence was still open, Vogel v. People^ s Mut. Fire Ins. Co., 9 Gray, 23. An answer in tort for breaking and entering plaintiff's close and removing a stone wall and stakes, denied the breaking and entering. It was held that the defendant bad admitted the truth of the allegation that the wall and stakes were removed. Knapp v. Slocomb, 9 Gray, 73. An answer which alleges that the defendant received his discharge in insolvency " from all debts due from him," and refers to an annexed copy of the discharge, is not necessarily bad on demurrer, but the answer ought properly to have alleged that the note in suit was thereby discharged. Whit- ney V. Bhoades, 3 Allen, 471. ISSUE — WHEN, JOINED. Sect. 29. A suit shall be deemed at issue when the alle- gations are closed, or if it is a real or mixed action, when the plea is filed. (St. 1852, o. 312, § 31 ; Gen. Sts. c. 129, § 28.) When, in their allegations, the pleaders have arrived at some specific point or matter affirmed on the one side and denied on the other, the parties are said to be at issue (ad exitum, — that is, at the end of their pleading) ; the question so set apart for decision is itself called the issue, and is desig- nated, according to its nature, either as an issue in fact or an 484 MASSACHUSETTS PRACTICE. [§§ 29-33. issue in law. Stephen, PI. *32 ; Chitty, PI. *630. See Chap. V. ante. INDORSEMENT OF PROCESS. After Entry?- Sect. 30. If a plaintiff in a •writ, suit, or process at law or in equity, after its commencement, removes from the Com- monwealth, the court where the suit is pending, on motion of any other party, shall, and in all cases when it appears rea- sonable may, require the plaintiff to procure a sufficient in- dorser. (Rev. Sts. c. 90, § 10 ; c. 100, § 28; c. 112, § 24; Gen. Sts. c. 129, § 29.) Sect. 31. If an indorser removes from the Commonwealth, or is insufficient, the court, if it appears reasonable, may require the plaintiff to procure a sufficient indorser. (Rev. Sts. c. 90, § 12 ; Gen. Sts. c. 129, § 30.) Sect. 32. The Supreme Judicial Court may require an indorser or security for the payment of costs in a probate or insolvent case or proceeding in that court. (St. 1846, c. 234 ; Gen. Sts. c. 129, § 31.) Sect. 33. If a plaintiff fails to procure an indorser ac- cording to the order of the court, his suit shall be dismissed, and the defendant shall recover his costs. (Rev. Sts. c. 90, § 13 ; Gen. Sts. c. 129, § 32.) In cases in which an indorsgr for costs may properly be required, the remedy is by an application to the court. Coulter V. Haynes, 146 Mass. 458. An indorser may be required, when from any cause what- • ever it shall appear to the court reasonable, and on failure to furnish one the court may dismiss the action. Williams v. ' Hadley, 19 Pick. 879 ; Femley v. Mahoney, 21 Pick. 212. The exercise of the power conferred by this section is in the discretion of the court, and its judgment is final. In an action in which the plaintiff of record disclaimed the use of his name, and which was continued only upon the assumption 1 As to indorsement before entry, see Pub. Sts. c. 61, § 23, and In- dorsement, Part I., Ch. VI., ante. §§ 33, 34J NOTES AND DECISIONS. 485 that another was entitled to sue in the name of the plaintiff of record, it was held that an order for an indorser might be directed to such other person. PetitcUr v. Willis, 99 Mass. 460. The Superior Court, after a demurrer to a declaration has been sustained, and the plaintiff has thereupon appealed to the Supreme Judicial Court, may order the plaintiff to furnish an indorser, for costs, and, in default of his so doing, may order him ngnsuited. Joannes v. Underwood, 6 Allen, 240. A defendant in bastardy process is not entitled to call for an indorser on removal of the complainant from the Cpmmon- wealth. Woodman v. Jarvis, 12 Gray, 190. Sect. 34. The court in which a suit is pending may per- mit the name of an indorser to be stricken out, and a new and sufficient indorser to be substituted. Every indorser shall be liable for costs from the commencement of the suit, in like manner as indorsers before the entry of an action. Rev. Sts. c. 90, §§ 11, 12 ; Gen. Sts. c. 129, § 33.) Under the old practice, the court would not allow an in- dorser's name to be erased and anothet substituted, without the consent of the defendant. Ely v. Forward, 7 Mass. 25 ; Caldwell v. Zovett, 13 Mass. 422. It seems that the same rule would hold now. The indorsement, as may be inferred from the word itself, must be made on the back of the writ ; but when the Supreme Judicial Court requires a new indorser in an action originally begun in the Superior Court, an indorsement made on the office copy of the original writ filed in the Supreme Judicial Court will be good without the indorsement of the original writ in the court below. Hartwell v. Hemmenway, 7 Pick. 117 ; Howe's Practice, p. 109 ; Davis v. McArthur, 4 Greenl. 82. The principle last stated applies also to actions originally brought before a justice of the peace and carried by appeal to the Superior Court. Ameriscoggin Bridge v. Bragg, 11 N. H. 102. The liability of the indorser of a writ is not discharged by 486 MASSACHUSETTS PKACTICE. [§ 34. the fact that the plaintiff removed into the State, and was a resident here, at and before the termination of the suit. The right of a defendant to have an indorser furnished is not ex- clusively restricted to cases where the plaintiff is without the State. The only distinction is that, where the plaintiff is not an inhabitant of the State, the writ must be indorsed before entry by some sufficient person, who is an inhabitant of the State. Proprietors of Locks and Canals v. Beed, 8 Met. 146. The liability of an indorser before entry (referred to in the above section) is determined by Pub. Sts. c. 161, § 24, which provides tiiat " in case of avoidance or inability of the plain- tiff," the indorser " shall be liable to pay all costs awarded against the plaintiff, if the suit therefor is commenced within one year after the original judgment." See Buggies v. Ives, 6 Mass. 494 ; Davis v. Whithead, 1 Allen, 275 ; Wixon v. Lap- ham, 5 Allen, 206. It is not a defence to a scire facias against the indorser of a writ that the plaintiff, in taxing his costs for the action in which the indorsement was made, he being the defendant therein, fraudulently procured the allowance by the clerk of various sums to which he was not lawfully entitled. Such matters should have been brought up and determined in the original suit. The court say : " The question is not whether the indorser could impeach the judgment by proof that the parties thereto obtained it by collusion in order to charge him. No such collusion was alleged or offered to be proved." Sherburne v. Shepard, 142 Mass. 141. If an attorney indorses a writ in favor of a resident of another State, he 'cannot set up, in defence to a scire facias to enforce a judgment for costs against such a party, that by so indorsing the writ he violated a rule of court prohibiting an attorney from becoming bail or surety in any civil suit or proceeding in which he is employed as attorney. Morrill v. Lamson, 138 Mass. 115. Where an oral agreement had been made in open court. § 34.] NOTES AND DECISIONS. 487 between the counsel in an action, that if the plaintiff 's attor- ney, who had indorsed the writ, would allow an indorser for costs to be ordered, he should be relieved upon the order being passed. Such an order was subsequently made, with a non-suit as an alternative, but the plaintiff 's attorney was not released of record, nor his name stricken from the writ, and a non-suit was afterwards ordered for the plaintiff's non- compliance with the order for an indorser. It was held, in an action by the defendant against the plaintiff's attorney to recover costs, that the plaintiff in the latter action could not rely on the non-suit and repudiate the agreement ; and that the agreement furnished a good defence to the latter action, either by way of accord and satisfaction, or as an equitable defence. Savage v. Blanchard, 148 Mass. 348. ^ ABATEMENT.! A plea in abatement shows some ground for abating or quashing the original writ, and makes prayer to that effect. Stephen on Pleading, 69. Such ground may consist, among other things, of a variance between the declaration and the writ, or the fact that the suit has been begun before a cause of action had accrued, or that another action is already pend- ing between the parties for the same cause. This plea may also be supported by evidence of the infancy of the plaintiff, or that other parties should have been made plaintiffs or de- fendants, as the case may be. The effect of a plea of this kind, if successful, is that the particular action is defeated ; 1 At common law there were three kinds of dilatory pleas ; 1st, to the jurisdiction ; 2d, in suspension, and 3d, in abatement. (See Stephen on Pleading, 67.) Objections to the jurisdiction are now taken by suggestion, or motion to dismiss, or, after verdict, by a motion in arrest of judgment. (See § 82.) A plea in suspension was one " which shows some ground for not proceeding in the suit, at the present period, and prays that the pleading may be stayed until that ground be removed ; " such, for instance, as the death or bankruptcy of a defendant. Such a fact is now to be taken advantage of by suggestion, and a motion for a continuance. MASSACHUSETTS PKACTICE. [§ 34 but the cause of action itself is not gone, and the plaintiff may bring another suit for the same cause. If a question of law raised on a plea in abatement is deter- mined against the defendant, the judgment is that he answer over; but if an issue of fact on a plea in abatement is decided against him, judgment for the plaintiff follows on the whole case. See §§ 14, 40. On the other hand, at common law, if the issue, whether of law or fact, arises on a plea in abatement and is decided in favor of the defendant, the judgment is that the writ be quashed.^ Where the matter of exception is apparent upon the face of the proceedings, and where all tlie facts are before the court, a motion to dismiss will be equally available with a plea or answer in abatement. Such motion must be made within the time prescribed for the reception of pleas in abatement ; and it has been held that the court is not authorized to allow an answer in abatement to be filed at a term subsequent to the return term, and after an answer on the merits. Hastings v. Bolton, 1 Allen, 529. But matters of fact, which do not ap- pear on the face of the writ, must be taken advantage, of by plea in abatement, and not by motion to dismiss. Pitman v. Fremont Hail Co., 2 Allen, 531 ; Crosly v. Harrison, 116 Mass. 114 ; Simonds v. Parker, 1 Met. 511. The pendency of another action for the same cause, between the same parties, and in the same court, cannot be taken' advantage of by motion to dismiss; but, as a general rule, by plea in abatement only. Morton v. Sweetser, 12 Allen, 184. So, the pendency of another action for the same cause in another tribunal must be pleaded in abatement and not in bar, and if the defence to an action is that the matter in controversy is already the subject of litigation before a competent tribunal, the plea should allege that the parties are before that tribunal and that their rights may be there determined. Mattel v. ^ But see § 41, post, as to the allowance of amendments in such cases. § 34.] NOTES AND DECISIONS. 489 Gonant, 156 Mass. 419.' " If the pendency of another action for the same cause in another State can be pleaded at all, it can only be pleaded in abatement." Moore v. Spiegel, 143 Mass. 413. The pendency of a bill in equity is not usually a sufficient ground for sustaining a plea in abatement in an action at law, but the defendant is to take his advantage, if at all, by injunc- tion from the court of equity to restrain the action at law. Mattel V. Gonant, 156 Mass. 419. For a case in which a motion to dismiss was overruled, and it was held that a plea in abatement would have been the proper remedy, see Haynes v. Saunders, 11 Cush. 537. It is well settled that mere matters of abatement, not affecting the jurisdiction of the court, cannot be pleaded after answering to the merits, and that at least in an action of tort for an injury to the person of the plaintiff, the plaintiff's disability to sue in person can be pleaded in abatement only, and, therefore, cannot be taken advantage of after the defend- ant has answered to the merits. Jaha v. Belleg, 105 Mass. 208. See Schermerhorn v. Jenkins, 7 Johns, 373 ; 1 Chit. PI. (6th Am. ed.) 436 ; Steph. PL (1st Am. ed.) 66, and note 23 ; Zathrop v. Bower),, 119 Mass. 199. The defendant in an action of contract pleaded the general issue, with a specification that the plaintiff had discharged the suit ; but he was not allowed to put in, as evidence under his pleadings, a certificate, signed by the plaintiff, to the effect that the suit was begun without his authority or consent, and that he thereby discharged the same. The writing " contained mat- ter which was ground only for abatement or dismissal, or for staying proceedings ; and" such matter, unless it arises puis darrein continuance, cannot avail a defendant after he has ^ It is apprehended that res judicata may always be pleaded in bar, and the statute provides a form for such a plea. See Statute Forms, ^osi. And if another suit for the same cause of action be commenced after the defendant's right to answer in abatement is gone, it seems that the defend- ant may set up the pendency of such second suit by a plea puis darrein continuance. See Gould, PI. c. vi. § 125. 490 MASSACHUSETTS PRACTICE. [§ 34. pleaded in chief." Nelson v. Thompson, 7 Cush. 503. But if a defendant pleads in abatement of the writ and to the merits of the action in the proper order, the fact that both pleas are filed at the same time and even upon the same paper does not in this Commonwealth operate as a waiver of the plea in abatement if seasonably filed. This mode of pleading is sanctioned by long usage and is often convenient to both parties ; to the defendant by stating, and to the plain- tiff by giving him notice of, all the defences on which the defendant intends successively to rely. O'Loughlin v. Bird, 128 Mass. 600. The objection that a declaration was not inserted in a writ before service is to be taken by plea or answer in abatement, not by a motion to dismiss.^ Brigham v. Este, 2 Pick. 420 ; Eathbone v. BatKbone, 4 Pick. 89, and see Keenan v. Knight, 9 Allen, 257 ; Eathhone v. JRathbone, 5 Pick. 221. Misdescrip- tion, in a writ, of the plaintiff's residence, or the misnomer of parties, must be objected to in the same manner. Day v. Floyd^ 130 Mass. 488 ; Wood v. Le Baron, .8 Cush. 471 ; Common- wealth V. Fredericks, 119 Mass. 199. A misrecital in a bail-bond cannot be taken advantage of by motion to dismiss, the bond not being properly a part of the record. Magg v. Jones, 113 Mass. 325. A motion to dismiss an appeal, for want of jurisdiction in the court below, does not fall within the ordinary rules, but may be made at any time. Ashuelot Bank v. Pearson, 14 Gray, 521. It has been held that a judge of the Superior Court has no right to report a case which has been tried upon an answer in abatement. Stackpole v. Hunt, 9 Allen, 589. But the ques- tion whether such an answer was seasonably filed may be so * In actions of tort and contract, the declaration need not be inserted in the writ unless an arrest is made. See Arrest, and § 7, ante, p. 437. In real and mixed actions, the rule requiring the declaration to be so inserted remains unchanged. §§ 34-35.] NOTES AND DECISIONS. 491 reported. Hastings v. Bolton, 1 Allen, 529 ; Jaha v. Belleg, 105 Mass. 208. No Abatement for Circumstantial Errors. Sect. 35. No writ, process, declaration, or other proceeding in the courts or course of justice, shall be abated, arrested, quashed, or reversed for any circumstantial errors or mistakes, when the person and case may be rightly understood by the court, nor through defect or want of form only. (Eev. Sts. c. 100, § 21 ; Gen. Sts. c. 129, § 34.) The objection that a suit has been begun before a right of action accrued may be taken by plea in abatement, but it may also be relied on, in the answer, as a bar to the action. Ben- thall V. Mildreth, 2 Gray, 288. See Baniels v. Newton, 114 Mass. 530, and Nason v. Holt, 114 Mass. 541, note. In actions of contract, if one of the parties entitled to sue sues alone, the right of action being in himself and another, advantage may be taken of the mistake either by answer in abatement or by way of bar to the action ; since, in such case, there is a variance, the contract in evidence not being the same as that declared on. Gould, PI. 255 , Halliday v. Dog- gett, 6 Pick. 859, and see Morley v. Freneh, 2 Gush. 130, 133. . Non-joinder of plaintiffs in actions of tort can be taken advantage of by abatement only, but misjoinder of plaintiffs need not be so pleaded. Bullock v. Hayward, 10 Allen, 460 ; Sherman v. Fall River Iron Works Co., 2 Allen, 524 ; May v. Western Union Telegraph Co., 112 Mass. 90, and cases cited. One of two persons jointly injured may alone maintain an action of tort for the injury, unless the non-joinder of the other is pleaded in abatement; and it was held that, under the general issue, evidence of such non-joinder would not de- feat the action but would merely restrict the plaintiff to the recovery of a moiety of the damage. Putney v. Lapham, 10 Gush. 232. As to non-joinder of plaintiffs in a,ctions of trover, see Morley v. French, 2 Gush. 130. 492 MASSACHUSETTS PKACTICE. [§ 35. In replevin for partnership property in which all the part- ners should be joined as plaintiffs, the failure to do this may be taken advantage of in abatement, or the non-joinder may be pleaded in bar. Fay v. Duggan, 135 Mass. 242. See Hart V. Fitzgerald, 2 Mass. 609, 511. In an action of contract the non-joinder of defendants can be taken advantage of by abatement only.^ Shelton v. Banks, 10 Gray, 401 ; Fdler v. Thompson, 13 Gray, 91 ; Canfield v. Miller, Ibid. 274 ; Kendall v. Weaver, 1 Allen, 277. A writ and declaration having been amended by striking out the names of some of the defendants, it was held that the remaining defendant might take advantage by plea in abate- ment of the non-joinder of those whose names had been stricken out ; and that he could take advantage of such non- joinder in no other way. Bliss v. Bliss, 12 Met. 266. " The infancy of a plaintiff is not a ground for non-suit at 1 In actions of tort, arising not from a breach of contract but from positive malfeasance, if there are several wrong-doers, the act of all is the act of each, and they are liable each by himself, or all together, or any number less than the whole may be sued. Judgment against one joint trespasser, without satisfaction, is no bar to an action against another. See Elliott v. Hayden, 104 Mass. 180, and cases cited. This being the rule, it follows that no advantage can be taken of the non-joinder of de- fendants in an action of tort. One exception to the rule, as above stated, should be noted. It was formerly held, and the decisions do not appear to have been overruled, that two could not be sued together for slanderous words spoken, although, in written slander, the law allows all who openly or tacitly participated in the libel to be joined. " In order to maintain an action on a joint contract, whether the action is brought against one or against both of the joint contractors, it is ne- cessary to prove the liability of both -, for if one only is or ever was liable, there is not a joint, but only a several liability, and a variance from the cause of action declared on. For example, if one joint contractor is sued alone, and does not plead in abatement the non-joinder of the other, and judgment is rendered against the one sued, it merges the cause of action against him, and (unless otherwise provided by statute) as the two are no longer jointly liable, prevents a subsequent recovery against the other joint contractor." Gray, C. J., in Cowley v. Patch, 120 Mass. 137, 138 ; Kingsley v. Davis, 104 Mass. 178. §§ 35-38.] NOTES AND DECISIONS. 493 the trial, but must be pleaded in abatement." Schermerhorn V. Jenkins, 7 Johnson (N. Y.), 373. The objection that the treasurer of the Commonwealth has brought an action in his own name which should have been brought in the name of the Commonwealth, may be taken by plea in abatement, or it may be raised at the trial on the ground that the facts stated in the declaration are insufficient to maintain the action. Oliver v. Colonial Gold Co., 11 Allen, 283, 285 ; Gray v. Paxton, Quincy, 541. Non-joinder — Neiu Writ. Sect. 86. "When the defendant in an action of contract answers in abatement the non-joinder of another person as defendant, the court may, at any time before issue joined on such answer, allow the plaintiff on such terms as it shall pre- scribe to amend his declaration by inserting therein the name of any other person as defendant, and declaring against him jointly with the original defendant. (Rev. Sts. c. 100, § 1 ; St. 1862, c. 312, § 27 ; Gen. Sts. c. 129, § 35.) Sect. 37. The plaintiff may thereupon take out a new writ in such form as the court prescribes, which shall be in the nature of an original writ of capias and attachment, or of summons, and shall require the new defendant to appear and answer as a defendant in the original action. Upon such writ the new defendant's body may be arrested, or his goods or estate may be attached, as upon an original writ ; and the writ shall be returnable at such time as the court shall order, and be served fourteen davs at least before the return day. (Rev. Sts. c. 100, § 2 ; Gen." Sts. c. 129, § 36.) Under an order of court allowing a writ of summons to issue in accordance with this section, the plaintiff may take out a writ of summons and attachment, and cause the new defend- ant's goods to be attached thereon. Whiicher v. Josslyn, 6 Allen, 350. Sect. 38. Upon the return of such new writ, every de- fendant named therein upon whom service has been made shall be bound to appear and answer with the other defendants, in the same manner as if he had been originally made a party in the first writ. If service cannot be made on a defendant, the 494 MASSACHUSETTS PRACTICE. [§§ 38-40. action may proceed against the other defendants, in the man- ner provided in chapter one hundred and sixty-four. (Rev. Sts. c. 100, §§ 3, 4 ; Gen. Sts. c. 129, § 37.) Pub. Sts. c. 164, relating to proceedings against absent defendants and upon insufficient service, provides that such actions shall be continued until such notice shall have been given as the court may direct. See Part I. ante, p. 142. Sect. 39. Judgment shall be rendered and execution shall issue for either party, in the same manner as if the original writ had been issued against all the defendants ; and the plaintiff shall have the same benefit of an attachment or bail upon each of said writs as if the same had been made or taken in the usual manner upon the original writ. (Rev. Sts. c. 100, § 5 ; Gen. Sts. c. 129, § 38.) Issue of Fact upon Answer in Abatement. Sect. 40. If an issue of fact upon an answer in abatement is found against the defendant,^ a final judgment shall be rendered against him in the manner heretofore required by law in case of a plea in abatement. (St. 1852, c. 312, § 28 ; Gen. Sts. c. 129, § 39.) This is according to the rule of the common law, which applied to all cases both civil and criminal, excepting where the defendant in a criminal prosecution for felony had pleaded in abatement to the indictment. But see § 41, post. If a demurrer to a plea in abatement is sustained, the defendant must answer over. This is said by Stephen to be an anoma- lous kind of judgment, it being the only case in pleading where, an issue of law being decided against a defendant, judgment does not follow against him on the main issue. See 1 " In a suit at common law, where there is a plea in abatement which raises a question of fact not determinable by the record, — as that the plaintifE is under a disability to sue, or is dead, or that the suit was commenced without authority, — this question, although, if it is decided against him, the defendant may be unable to plead any other issue of fact, is to be passed upon by a jury." Per Devens, J., in Boyden v. Lamb, 152 Mass. 416, 419. §§ 40, 41.] NOTES AND DECISIONS. 495 Young v. Grilles, 113 Mass. 34 ; Commonwealth v. Carr, 114 Mass. 280 ; § 14, ante. If an answer filed contains both an answer in abatement and an answer to the merits, and the answer in abatement is overruled as matter of law, the defendant has a right to rely upon his answer to the merits ; if the answer in abatement is overruled as matter of fact, it is within the discretion of the court to allow the defendant to go to trial on the answer to the merits. Fisher v. Fraprie, 125 Mass. 472 ; Parks v. Smith, 155 Mass. 26. Where, in an action by a corporation upon a promissory note, the defendant pleaded in abatement that there was no such corporation as was in the writ supposed, and issue was joined upon that fact, the defendant was not permitted, on th(3 trial of the issue in abatement before the jury, to allege and prove, in reference to the damages, that there was no consider- ation for the note, the judgment against the defendant being peremptory in case of his failing to support his plea in abate- ment. Boston Glass Manufactory v. Langdon, 24 Pick. 49. But where the defendant (a foreign corporation) pleaded in abatement to the jurisdiction of the court, and the plaintiff in his replication set up the record which, he alleged, showed an effectual attachment of the defendant's goods in this Com- monwealth, Shaw, C. J., at nisi prius, adjudged that there was such a record, and that the defendant should answer over. This judgment was sustained by the full court. Ocean Ins. Co. v. Portsmouth Marine Railway, 8 Met. 420. AMENDMENTS. After Pleas or Answers in Abatement. Sect. 41. 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 defendant 1 No motion to amead, in matters of substance, will be allowed after the entry of an action, unless by consent, in any case where the adverse party appears, except upon terms to be prescribed by the court, in ac- 496 . MASSACHUSETTS PRACTICE. [§ 41. may have leave to amend an answer in abatement, or to an- swer over by special order of the court, for good cause shown, and not otherwise. (St. 1852^ c. 312, § 28 ; Gen. Sts. c. 129, §40.) Answering over at common law embraces every form of denying the plaintiff's right of action, whether by traverse or demurrer. And the Practice Act, which substitutes for all special pleas in bar as well as for the general issue in per- sonal actions, " an answer to the declaration " (see § 15), provides that this answer may contain a demurrer. When therefore a defendant was granted leave to answer over by the first day of the next term, it was held that he might, within the time allowed, file a demurrer to the declaration. Young v. Gilles, 113 Mass. 34; Commonwealth v. Carr, 114 Mass. 280. Where matter in abatement was included in answers to the merits filed separately by defendants after the expiration of the time allowed for answers in abatement, and the plaintiff desired to join issue on the facts pleaded in abatement, the defendants waived the matter in abatement, and the court ordered the trial to proceed. It was held that this amounted to giving the defendants leave either to amend their answers by striking out the matter in question, or to answer over as provided by § 41, and that the action of the court was not open to the plaintiff's exception. Machinists' National Bank, V. Bean, 124 Mass. 81 ; Fisher v. Fraprie, 125 Mass. 472. cordanoe with Rule IV. of the Supreme Judicial Court, and Rule XII. of the Superior Court. The rule last cited also provides that the party filing amendments, after demurrer, shall be required to pay to the adverse party the amount of the term-fee provided by law, or, after the action has been placed on the trial list, of a double term-fee. And this being a gen- eral rule of court, cannot be dispensed with by a single justice. Chapman, J., in Webber v. Davis, 5 Allen, 393; Tripp -v. Brownell, 2 Gray, 402. The terms prescribed in Colton v. King, 2 Allen, 317, were "the terms required by the rule of the Superior Court, and the payment of the costs upon the exceptions." See also §§ 36, 37, ante, p. 493. § 42.] NOTES AND DECISIONS. 497 In General before Judgment. Sect. 42. At any time before final judgment in a civil suit, amendments may be allowed, on such terms as are just and reasonable, introducing a party necessary to be joined as plaintiff or defendant, discontinuing as to a joint plaintiff or defendant, changing the form of the action, and in any other matter, either of form or substance, in any process, pleading, or proceeding, 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. (Rev. Sts. c. 93, § 24; c. 100, §§ 6, 7, 22; St. 1836, c. 273, § 3 ; St. 1839, c. 151, §§ 1, 2 ; St. 1852, c. 312, § 22 ; Gen. Sts. c. 129, § 41.) See also § 85, post, and cases cited. " The policy of our laws is very liberal in favor of allowing amendments in form or substance. They are uniformly al- lowed where the allowance will promote justice and prevent litigation and delay." Byers v. Franklin Coal Co., 106 Mass. 131, 141. But they cannot be allowed for the purpose of substituting a new cause of action. Weatherhy v. Srown, 106 Mass. 338 ; Silver v. Jordan, 139 Mass. 289. In the exercise of this power, it may become necessary for the court 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 intended to prosecute when the action was begun. This provision created an essential change in the power and prac- tice of the courts in allowing amendments. Before its enact- ment, 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 solely by compar- ing the old with the new count. The statute greatly enlarged the scope of the inquiry by introducing the intention of the party as an element by which the court is to be governed in the exercise 'of the power of allowing amendments, and, by § 85, the adjudication of the court allowing the amendment 32 498 MASSACHUSETTS PRACTICE. [§ 42. " shall be conclusive evidence of the identity of the cause of action." Mann v. Brewer, 1 Allen, 202, 203. Whether, in a particular case, the amendment shall be al- lowed, rests in the discretion of the judge who is trying the case, and his decision is not subject to exception. Payson v. Macomher, 3 Allen, 69. ' " Even before these statute provisions, similar amendments " (discontinuing as to a joint defendant) " were allowed under the general authority of courts over causes pending before them." Shaw, C. J., in Fitch v. Stevens, 2 Met. 505 ; citing Colcord V. Swan, 7 Mass. 291 ; Rehdboth v. Hunt, 1 Pick. 224 ; and, although a plaintiff may not, as matter of law, have the right to discontinue as to any or all of the defendants, after he has opened his case for trial before a jury, or a court with- out a jury, it is clear that he may be permitted to do so by leave of court at any time before final judgment is entered. Whether such leave, shall be granted is a question within the discretion of the court, and the exercise of this discretion is not subject to revision upon a writ of error, or otherwise. Gray v. Cook, 135 Mass. 189.1 See section 85, post, and cases cited, as to rights of attach- ing creditors, bail, and subsequent purchasers as affected by an amendment after such an adjudication. 1 This section is applicable to suits in equity as well as to actions at law. Per Bigelow, C. J., in Merchants' Bank of Newburyporl v. Stevenson, 7 Allen, 491 ; citing Crease v. Babcock, 10 Met. 525. A libel for divorce a vinculo, alleging an act of adultery with a certain person, on a d'ay certain, may be amended so as to allege. that another act of adultery was committed with the same person on another day; but, in such case, the respondent will be entitled to a continuance. Tourtelot v. Tnurtelot, 4 Mass. 506. A complaint under the bastardy act may be amended by inserting the middle letter of the respondent's name. Bailey v. Chesley, 10 Gush. 284. In this case, Shaw, C. J., said: "The proceeding in bastardy is so far a civil action, that the complainant institutes it for her own benefit. She can control and discharge it; it is her suit, and within the law allowing aniendments." A petition for the assessment of damages for taking land is a civil suit, § 42.] NOTES AND DECISIONS. 499 Interpleading ly Amendment. In all actions in which a liability is admitted by the defend- ant and the amount of such liability is not in dispute, if it ap- pears that such amount is claimed by another party than the plaintiff whether by the husband or wife of said plaintiff or otherwise, and that the defendant has no interest in the sub- ject-matter of the controversy, the court in which such action is pending, on the petition of the defendant, which petition shall give the name and residence of all known claimants and the amount actually due from the defendant, and on such notice as the court may order to the plaintiff and to such claimants, may order the proceedings to be amended by making such claimants parties defendant thereto, and there- upon the rights and interests of the several parties in and to said amount shall be heard and determined. Such amount may remain in the hands of the defendant until final judg- ment, and shall then be paid in accordance with the order of the court, or may be paid into court to await final judgment, and when so paid into court, the defendant shall be stricken out as a party to the action and his liability for said amount shall cease. The taxable costs of the defendant in such actions shall be in the discretion of the court and may be charged upon the fund. (St. 1886, c. 281.) After such an amendment, the action becomes, substan- tially, a suit of interpleader. WortMngton v. Waring, 157 Mass. 421, 428. If a defendant, who admits that money in his hands was due at the beginning of the action, files a peti- tion under this statute for the summoning in of a claimant, he is liable for interest on the sum admitted to be due, from the date of the writ to final judgment. Converse r. Ware Savings Bank, 152 Mass. 407. See Ware v. Merchants' national Bank, 151 Mass. 445 ; Bridge v. Connecticut Mutual Life Insurance Co., 152 Mass. 343. within the meaning of this section, and the county commissioners may allow such petition to be amended, and they may allow an amendment introducing a new party as petitioner, even after a disagreement of the jury at a hearing on the petition, and after the lapse of the year allowed by statute in which to file a petition for a jury. Grand Junction R. R. V. County Commissioners, 14 Gray, 553; Winchester v. County Commis- sioners, 114 Mass. 481. 500 MASSACHUSETTS PKACTICE. [§ 42, Amendment of Writs. The accidental omission of the signature of the clerk of a court to an original writ is a defect which may be amended. Austin V. Zamar Fire Ins. Co., 108 Mass. 338. See opinion of Ames, J., in the same case, for collection of authorities and discussion of this point ; also Foot v. Knowles, 4 Met. 386, as to the effect of an omission of the seal from a writ. The allowance, at any stage of the action, of an amendment to a writ so as to make it bear test of D. W. instead of J. M. W., as chief justice, is fully authorized by the statute. The test is a mere matter of form. Bijpley v. Warren, 2 Pick. 592 ; Nash r. Brophy, 13 Met. 476, 478. ' Where a writ was, by mistake, made returnable at S. instead of J., and, before the expiration of the time of service, the plaintiff caused the defendant to be notified of the mistake and to be served with a new and corrected summons, the plaintiff was allowed to amend his writ accordingly. Kimball v. Wil- kins, 2 Cush. 555. In a case where the plaintiff had leave to amend his writ by striking out the name of one of the defendants, and dis- continued as to him, but neglected to amend his declaration to correspond, the court held that this negligence was no ground for a new trial, the defendant having acquiesced in it at the time. EawTces v. Davenport, 5 Allen, 390. An amendment to a writ of review may be allowed by sub- stituting the name of the original defendant as the formal petitioner instead of the parties named as petitioners. Winch V. Eosmer, 122 Mass. 438 ; Davenport v. Holland, 2 Cush. 1. And where an action was brought in the name of an admin- istrator for the benefit of an assignee of the claim, an amend- ment was allowed making the assignee the nominal as well as the real plaintiff. BucUand v. Green, 133 Mass. 421. Where a foreign judgment was obtained in favor of A. for the benefit of B., A. having no beneficial interest in it, and § 42.] NOTES AND DECISIONS. 501 A. soon after died, and his widow, C, being appointed his executrix, assigned the judgment to B., and B. thereafter brought an action ou the judgment in the name of A., it was held that the court had authority to allow the amendment of the writ, substituting the name of 0. as executrix for that of A., and stating that the action was brought for the benefit of B. Lewis v. Austin, 144 Mass. 383. Where an action was brought upon a promissory note by an indorsee thereof, and the note was not negotiable, an amendment was allowed striking out the name of the existing plaintiff and substituting the name of the payee. ' Costelo \. Growell, 134 Mass. 280. A writ actually made on the 26th of April, dated the 26th of May, returnable the 7th of May, and actually entered on the latter day, may be amended by substituting the true date, Mclniffe v. Wheelock, 1 Gray, 600 ; and, in Hamilton v. /w- graJiam, 121 Mass. 562, a mistake in the return day was allowed to be amended after a special appearance by the de- fendant for the purpose of objecting to the jurisdiction. A writ running against Charles A. L., but actually served upon Chase A. L,, the defendant intended, may be amended, after the default of Chase, and without notice to him, by sub- stituting Chase for Charles, and judgment may be rendered thereon. Langmaid v. Puffer, 7 Gray, 378. See also Diet- trich y. Wollfsohn, 136 Mass. 335, as cited post, § 85.^ When the name of a defendant is not known to the plain- tiff the writ may issue against the defendant under a fictitious name, and may be amended, after the service, on such terms as the court deems reasonable. Pub. Sts. c. 161, § 20. A writ which directs the officer "to attach the goods or estate of , to the value of twenty dollars, and for want 1 In Trull V. Rowland, 10 Cush. 109, it was held that no action lay against an officer who arrested Jonathan A. T. on an execution against George A. T., the former being the real defendant, and having been served with original process and defaulted. 502 MASSACHUSETTS PRACTICE. [§ 42, thereof, to take the body of the said A. B.," may be amended by inserting the defendant's name in the blank space. McGuire v. Davis, 8 Cush. 356. And a writ in which the amount of the plaintiff's damages is wholly omitted may be amended by filling the blank with the proper sum. Cragin V. Warfield, 13 Met. 215. After a writ has been served by arresting the defendant, and a recognizance has been entered into under Pub. Sts. c. 162, § 28, the writ cannot be amended by inserting the capias clause. The arrest and the taking of the recognizance were both void, and no subsequent amendment could give them validity. Learnard v. Bailey, 111 Mass. 160. The costs awarded the. defendant by the court, as "just and reasonable," upon the amendment of the writ by striking out the name of one plaintiff, are all to which the defendant is entitled, and he cannot, at the termination of the case, tax costs against the plaintiff whose name was stricken out. Rich- ardson V. Wolcott, 10 Allen, 439. A writ against one in his individual capacity may be amended so as to charge him as administrator. Lester v. Lester, 8 Gray, 437. And such amendment may be allowed after the expiration of two years from the notice of his appointment, and after his final account has been allowed by the court. Hutchinson v. Tucker, 124 Mass. 240. Where the writ designated the defendant as administrator of the estate of J. W. deceased, but the declaration averred that the defendant owed the plaintiff for services performed " by the plaintiff for the defendant and at his request," and the evidence in the case showed a cause of action against the defendant personally, it was held that the words " administra- tor, &c." might be treated as descriptio personce, merely, and and that the action might be maintained against the defend- ant personally, without an amendment. Manning v. Osgood, 151 Mass. 148. The rule is different if the declaration shows that the cause of action arose against the defendant as § 42] NOTES AND DECISIONS. 503 representing the estate. Yarrington r. Bobinson, 141 Mass. 450. The Superior Court may allow an amendment of a writ by increasing the ac^ damnum from |1,500 to #2,900, at any time before final judgment, although the defendants are aliens, and would have had a right of appeal to the United States court if the original ad damnum had been |2,900, and although the case has been referred to arbitrators. Ellis v. Midgway, 1 Allen, 601 ; Danielson v. Andrews, 1 Pick. 156. A writ returnable before a justice of the peace may be amended with his leave, before trial, by reducing the ad dam- num to a sum which will bring the case within his jurisdiction, provided he has jurisdiction of the parties and the subject- matter. Hart V. Waitt, 3 Allen, 532 ; Dix v. Huntress, Ibid. 534. But a writ originally brought before a justice of the peace, laying damages at a sum beyond the magistrate's juris- diction, cannot be amended in the Superior Court, on appeal, by reducing the amount of the ad damnum, but must be dis- missed.i Zadd v. Kimhall, 12 Gray, 139. In Hart v. Waitt, cited above, which contains a review of the cases, the court say : " We have held that the objection of a want of juris- diction cannot be obviated by an amendment in the appellate court, and for the very obvious reason that the appellate court cannot by its amendment confer jurisdiction upon the court from which the appeal was taken ; and the jurisdiction having never attached there, the defect was not remediable by an amendment in the higher court. Ladd v. Kimball, supra; Ashuelot Bank v. Pearson, 14 Gray, 521. But where the court to which the writ is returnable has jurisdiction of the parties and of the subject, as in the present instance, and the only objection is that the ad damnum is to a larger amount than the court can exercise jurisdiction of, we perceive no legal ^ In Converse v. Damariscotta Bank, 15 Me. 431, it was decided that, where a writ had been served by a constable without authority ("the ad damnum being greater than S100_), the ad damnum might be reduced so as to justify the service. 504 MASSACHUSETTS PEACTICE. [§ 42. objection to the allowance of an amendment by the court to which it is returnable, reducing the ad dumnum. If that is done before proceeding to trial on the merits, the court will then have a case before them within their statute jurisdiction as to amount of damages, and may proceed to hear and ad- judicate thereon, and all subsequent proceedings will be the same as if the ad damnum had been originally the same as made by amendment." For a case in which a writ was rendered abatable by amend- ment after the-first term, see Bliss v. Bliss, 12 Met. 266. The submission, upon a case stated by the -parties, of an action in the form of a landlord and tenant process, without limiting the plaintiff's right to recover to the form in which the action was braught, authorizes the writ to be amended into another form of action of which the court has original jurisdiction, although it had no jurisdiction of the action in its original form. Merrill v. Bulloch, 105 Mass. 406 ; Fay v. Taft, 12 Cush. 448. - To a writ of entry to foreclose a mortgage, the defendant pleaded nul disseisin and payment, and afterwards, at the trial, moved for leave to file a plea disclaiming all right, title, and interest in the premises. The judge refused to allow the amendment, and it was held that this was a proper use of his discretion and that his refusal was not the subject of excep- tion. Richmond Iron Works v. Woodruff, 8 Gray, 447. The demandants in a writ of entry may be allowed, in the discretion of the court, to amend the writ by striking out the name of one of them who had died before the date of the writ and inserting a claim by her husband to hold her share as tenant by the curtesy. Emery v. Osgood, 1 Allen, 244. A. writ of replevin may be amended by inserting, after the description of the property sued for, the words " of the value of twenty-five dollars." Jaques v. Sanderson, 8 Cush. 271. And such a writ which by mistake alleges the taking to have been in a county other than that in which the action is pend- § 42.] NOTES AND DECISIONS. 505 ing may be amended so as to allege the taking in the latter county. Judson v. Adams, 8 Cush. 556. The appraisers' and officer's returns may be amended to correspond with the actual value of the property if the court is satisfied that the error occurred by mistake. Hammond v. Eaton, 15 Gray, 186. Amendment of Declarations. When a declaration has been inserted in a writ before ser- vice, no addition to it can be made after service except by leave of court or by consent' of the defendant. -Jones v. Ilsley, 1 Allen, 273. See Simeon v. Gramm, 121 Mass. 492. A claim for rent, forming one item in an account annexed, may be struck out by amendment and a count upon the covenants of a written lease substituted for it. Mann v. Brewer, 7 Allen, 202. A declaration for enticing away a minor daughter of the plaintiff may be amended by the addition of a count for har- boring and secreting her, and persuading her to remain absent from her father's family and service without his consent. Stowe V. Heywood, 7 Allen, 118. A declaration on an account annexed may be amended by annexing a bill of particulars. Burgess v. Bughee, 100 Mass. 152. A declaration in an action for slander, in charging the plaintiff with having committed adultery, may be amended by leave of court, after the arguments have begun, by adding a count for charging the plaintiff by the same words with the crime of fornication. Baldwin v. Smile, 6 Gray, 321. In an action upon a recognizance, it is competent to permit the certificate of the recognizance, as originally returned by the magistrate, to be amended by filing a new and corrected memorandum thereof, and also to permit the declaration in the action to be amended so as to correspond with the amended recognizance. Morrill v. Norton, 116 Mass. 487, and cases cited. 506 MASSACHUSETTS PRACTICE. [§ 42. A ' suit on three promissory notes having been brought against three partners, two of them pleaded their discharge under the insolvent laws, and the plaintiff thereupon discon- tinued as to them and filed a specification of his claim against the third partner, the remaining defendant seeking to recover against him by reason of his joint liability on the notes, and charging him, also, with an original separate promise to pay for the goods which were the consideration of the notes. It was held, that the plaintiff could not proceed and recover judgment against the remaining.* defendant on his separate promise, without amending the declaration. Whiting y. With- ington, 3 Cush. 413. Amending a declaration will not preclude a party from reading a deposition previously taken and filed in the case. Weatherby v. Brown, 106 Mass. 338. A declaration reciting in one count two distinct causes of action may be amended so as to set forth the causes of action in distinct counts, if the plaintiff intended to state and rely upon both. Haley v, Boston & Albany B. B-, 147 Mass, 101. A formal defect in a declaration which might ha,ve been cured by amendment, is waived if first objected tp in the trial in the Superior Court, a full hearing having bgen had before an auditor. Boston & Albany B. B. v. Pearson, 128 Mass. 445. Amendments after Veriiipt, *^ If there be a general verdict on a declaration eont3,ining several counts, the plaintiff may at any tinie during the sit- ting, 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." Rule XLY. Sup. Ct. ' Middlesex, Sup. Ct. October 3, 1881. CD. ) Limitations. ^ And the plaintiff replies as follows : viz., He says that within six years before the suing out of his writ the defendant executed a writing, a copy whereof is hereto annexed, by which he acknowl- edged said debt, and agreed to pay the same. He further says the defendant has been absent from this com- monwealth for the space of three years last past. After an answer setting up the statute of limitations, the rule of the common law required the plaintiff, if he relied on a new promise, to set it forth by replication. . This is still a proper course to pursue, but -tto' plaintiff may now prove the new promise without filing a replication, unless the court, on motion of the defendant, requires him to file it. Pub. Sts. c. 167, § 24. ''See Little v. Blunt, 9 Pick, 488 ; Cook v. Shea,r- man^Mt Mass. 21. In the case last cited, the defence was a discharge in insol- vency, and no replication was filed, but it was adjudged that the plaintiff was properly allowed to prove a new promise, without having alleged it, either in his declaration .or by replication. A payment', or a new promise, to take the case out of the statute of limitations, may be shown in reply to the defence setting up the statute. Bladder v. Boott, 114 Mass. 24, 26. Minority. And the plaintiff replies that he is ignorant of the fact, so that he can neither admit nor deny that the defendant was a minor, as stated in his answer, but leaves the defendant to prove the same. He further says the articles mentioned in his bill of particulars were necessaries for the defendant, and suitable to his estate and degree. SELECTED FORMS. DECLARATIONS. Indorser of Note against Maker. And the plaintiff says the defendant made and delivered to the plaintiff his promissory note, a copy of which with the indorse- ments thereon is hereto annexed ; that thereafter, and before the maturity of said note, the plaintiff indorsed the same and nego- tiated it for value ; that at the maturity of said note the same was duly presented for payment, but was not paid, whereof the plain- tiff had due notice ; that thereafter the plaintiff was compelled to pay, and did in fact pay to one , the holder of said note, on account of the amount due thereon from the defendant, the sum of dollars, and that no part of the same has been paid to the plaintiff. Wherefore the defendant is justly indebted to the plaintiff therefor, in the sum of dollars, with interest. [Copy of note,] Indorsee against Maker, And the plainti&f says the defendant made a promissory note, a copy of which with the indorsemeAts thereon is hereto annexed, payable to one J. S., or order, and that said J. S. indorsed said note to the plaintiff. And the defendant owes the plaintiff the amount of said note, with interest. £Copy of note.] Indorsee of Bill against Drawer. And the plaintiff says that the defendant made a bill of ex- change, a copy of which with the indorsements thereon is hereto annexed, payable to the order of A. B. ; that said A, B. indorsed the same to the plaintiff ; that said bill was duly presented for acceptance to E. F., the drawee therein named, who refused to 37 578 MASSACHUSETTS PRACTICE. accept the same ; of all which the defendant had due notice. And the defendant owes the plaintiff the amount of said bill, and in- terest thereon. [Copy of bUl.] Indorsee of Bill against Acceptor. And the plaintiff says that one Gr. H. made a bill of exchange, a copy of which with the indorsements thereon is hereto annexed, payable to the order of J. S. ; that the defendant, the drawee named in said bill, duly accepted the same, and the said J. S. then indorsed the said -bill to the plaintiff. And the defendant owes the plaintiff the amount of said bill, with interest thereon. [Copy of biU.] Against Common Carriers for Loss of Property. And the plaintiff says that on the day of , the de- fendants were owners of the ship Lion, lying at N. O., and bound for B., and were common carriers of goods and chattels for hire from said N. 0. to said B. ; and being -sncfi carriers, the plaintiff on said day, at the request of the defendants, caused to be shipped on board of said ship certain goods of the plaintiff, to wit : , in-good order and condition, to be taken care of and to be safely and securely conveyed by the defendants to B. aforesaid, and there to be delivered in like good order and con- dition (the dangers of navigation and fire excepted ■") to or their assigns ; and in consideration thereof and of a certain freight to be paid by the plaintiff to the defendants, to wit : , the said defendants became by law bound and obliged as common carriers as aforesaid, and, by their bill of lading (a copy whereof is hereto annexed), undertook and promised the plaintiff to take care of and safely convey the said goods, and deliver the same as aforesaid; yet the said defendants did not take care of and securely convey and deliver said goods in good order and condi- 1 The words " the dangers of navigation and fire excepted " are in- serted in the above form as usually occurring in ship's bills of lading. Any other special stipulations may be inserted. No demand for the goods heed be alleged, in cases where the plaintiff relies on the loss or destruc- tion of the property as his ground of action. Alden v. Pearson, 3 Gray, 842. See School Dist. in Medfield v. B., Hartford, §• Erie R. R., 105 Mass. 552. SELECTED FORMS. 579 tion to the said , but have wholly neglected so to do ; and the defendants so carelessly and improperly conducted themselves in that behalf that said goods were wholly lost and destroyed. [Copy of bill of lading.] Against Common Carriers for Failure to deliver at the Time agreed; with Special Damage. And the plaintiff says that (state that the defendants were com- mon carriers, &c.), and that on the day of , at St. Albans, Vermont, the plaintiffs delivered to the defendants a large number of, to wit, one hundred, sheep, the property of the plain- tiff, which the defendants, in consideration of a reasonable com- pensation paid them by the plaintiff, agreed safely to carry to the city of Boston, and there deliver to the plaintiff on or before ; but the defendants did not fulfil their said agreement in this behalf, and, on the contrary, so negligently and carelessly conducted and so misbehaved in their said calling as carriers, that they failed to deliver said sheep in said Boston until the day of And the plaintiff says the market value of said sheep in said Boston was greatly diminished between said day of , and said day of , to the great damage and injury of the plaintiff. Against Bailee for Failure to Deliver. And the plaintiff says the defendant received , the prop- erty of the plaintiff, and agreed with the plaintiff, for a legal con- sideration duly paid by the plaintiff to the defendant, to deliver said to the plaintiff at Boston, and the plaintiff duly de- manded from the defendant a delivery of the same, but the defend- ant neglected and refused, and still neglects and refuses, to deliver the same, and the defendant owes the plaintiff the value thereof.'' To recover Deposit on Contract for the Purchase of Real Estate. And the plaintiff says the defendant entered into a contract in writing with the plaintiff, a copy whereof is hereto annexed : That the plaintiff, as a security, as well for the performance of said agreement on his part, as to secure a performance thereof on the part of the defendant, at the time of the making of said agreement, > See Oaas v. Boston ^ Lowell R. R. Co., 14 Allen, 448. 580 MASSACHUSETTS PRACTICE. deposited in the hands of the defendant the sum of three hundred dollars, as a part of the purchase-money to be paid by the plaintiff according to the terms of said agreement, said sum to be to and for the use of the defendant, to be retained by the defendant r account of the purchase-nioney, if the plaintiff should complete his said purchase and receive the deed of the premises described in said agreement, but to he to and for the use of the plaintiff, and to be returned to the plaintiff if the defendant should fail to fulfil his agreement as aforesaid, and to give a deed of said premises pur- suant to said agreement. And the plaintiff further says that he has always been ready and willing to do and perform everything, in said agreement contained, on his part to be performed, and on the day of , was ready and willing and duly offered to the defendant to accept and take the deed of said premises pursuant to said agreement, and to pay him the balance of the purchase-money due therefor ; but that the defendant did not on said day of , nor at any other time, give the plaintiff a deed of said premises pursuant to said agreement, but has wholly failed and refused so to do. And the plaintiff further says that on the day of , he demanded of the said defendant payment of the said sum of three hundred dollars, so deposited with the defendant as afore- said, but that no part of the same has been paid. Wherefore, the defendant owes the plaintiff the sum of three hundred dollars, with interest thereon from said last-mentioned day. [Copy of agreement.] Employee against Employer. And the plaintiff says that on or about the day of , an agreement was made by and between the plaintiff and the defend- ant, whereby the plaintiff agreed to render his services to the de- fendant as hook-keeper from said day to the day of ; in consideration whereof the defendant agreed to employ the plain- tiff in the capacity of book-keeper as aforesaid, and to pay him for such services at the rate of dollars a month. And the plaintiff further says that he entered upon his employ- ment under said agreement and duly discharged all the duties thereof until the day of ; and although he has ever since been and still is ready and willing, and on said last-named day duly offered, to perform all the conditions of said agreement SELECTED FOEMS. 581 upofi his part to be performed, the defendant has refused, and still refuses, to allow him so to do, or to pay him therefor. For False Warranty of a Horse. And the plaintiff says that on or about the day of , he bought of the defendant a certain horse, and paid the defendant therefor the sum of two hundred dollars ; and the defendant then warranted said horse to be kind and quiet in harness. Never- theless said horse was, at the time of said sale and warranty, unsteady, restive, and ungovernable in the harness, and. has con- tinued to be so ever since.' On a Judgment. And the plaintiff says that, by the consideration of the justices of the Superior CoUrt, holden at Boston, within and for the County of Suffolk, on the first day of December, a. d. 1893, he re- covered judgment against the defendant for the sum of two hun- dred and severity dollars debt or damage, and thirty-one dollars cost of suit : that thereafter, to wit, on the fifteenth day of Decem- ber, A. D. 1893, execution issued out of said Court for said sums, amounting together to the siita of three hundred and one dollars, together with tw6nty-flve cents more for the execution, and said execution has never been satisfied either in full or in part, as is shown by the return thereon made, all of which duly appears of record in said Superior Court. And the plaintiff farther says that said judgment has never been paid either in full or in part. "Wherefore the defendant owes the plaintiff the sum of three hun- dred and one dollars with twenty-five cents more for said writ of execution ; and interest.'^ On a Foreign Judgment. And the plaintiff says that, by the consideration of the justices of the Superior Court of the State of New Hampshire, at a term holden at Concord, in said New Hampshire, on the first Monday I If deceit is relied upon, see Statute Forms ; Litchfield v. Hutchin- son, 117 Mass. 195 ; Cooper v. Landon, 102 Mass. 58 ; Oardoze v. Swift, 113 Mass. 250 ; Hoist v. Stewart, 154 Mass. 445 ; § 2, cl. 3, p. 416, ante. ^ As to a declaration on a judgment obtained by or against a party erroneously named, see Root v. Felldwes, 6 Cash. 29; Wood v. Le Baron, 8 Cush.-471. 582 MASSACHUSETTS PRACTICK 'of June, A. D. 1893, to wit, on the twentieth day of said June, he recovered judgment against the defendant for the sum of one thousand dollars debt or damages, and seventy-two dollars costs of suit, as by a certified copy of the record of said Court hereunto annexed duly appears. And the plaintiff says said judgment still remains of full force and effect, that it has never been reversed or vacated, and he has never obtained any satisfaction thereof from the defendant. Wherefore the defendant owes the plaintiff the amount thereof with interest. [Certified copy of record.] For False Imprisonment. And the plaintiff says that, on or about the day of , the defendant, with force and arms, made an assault on the plain- tiff, and then and there seized and laid hold of the plaintiff, and then and there forced and obliged the plaintiff to go in and along divers public streets to a certain police station, and then and there imprisoned the plaintiff, and kept and detained him in prison without any reasonable and proper cause whatever, for a long time, to wit, for the space of then next following, contrary to law and against the will of the plaintiff : whereby the plaintiff was greatly hurt, bruised, and wounded, and greatly exposed and injured in his reputation, credit, and business. 'I For Malicious Prosecution. And the plaintiff says the defendant, maliciously devising and intending to injure the plaintiff, did, at a term of the Court, holden at on , falsely and maliciously, and without any reasonable or probable cause, procure the plaintiff to be complained against [or indicted], for that the plaintiff [here insert the sub- stance of the complaint or indictment] : and the defendant did falsely and maliciously, and without any probable cause, prose- cute and aid in prosecuting the said complaint [or ifidictment] against the plaintiff, until afterwards, on the day of at the Court, the plaintiff was, by a jury of his country and by a judgment of said court, acquitted of the premises charged against him by said complaint [or indictment] ; by reason of which false and malicious prosecution the plaintiff has been compelled to undergo great labor and trouble, and anguish of body and mind, and has suffered greatly in his credit, business. SELECTED FOEMS. 583 and reputation, and has expended large sums of money in his defence.' For Slander. And the plaintiff says the defendant publicly, falsely, and mali- ciously charged the plaintiff with the crime of perjury, by words spoken of the plaintiff substantially as follows, viz. : " "Walter has been to New Bedford and sworn to a damned pack of lies ; " " W. has been to N. B. and sworn to a pack of damned lies." And the plaintiff says that during a term of the Supreme Judicial Court, holden at N. B., in the month of , he the plaintiff was sum- moned as witness in the case of a libel for divorce, pending in said court between P. L. G. and J. G. ; and that, in obedience to said summons, he did attend said Court at said term, and did in said case of libel for divorce, testify as a witness, having been first sworn to testify in said matter to the truth, and being so under oath, as a witness as aforesaid, he did swear, and it is to this sub- ject the defendant's malicious declarations refer." For Projection of Defendant's Building over Plaintiff's Land. And the plaintiff says that, before and at the time of the com- mitting of the grievance hereinafter mentioned, he was, and still is, lawfully possessed of a certain close, abutting on Street, so called, in [here describe the plaintiff's premises by metes and bounds] ; yet the defendant, well knowing the premises, wrong- fully and injuriously kept and continued from and upon the wall of his messuage adjoining the plaintiff's close as aforesaid, a cer- tain building projecting and overhanging the plaintiff's said close, and before then wrongfully projected and built, projecting as aforesaid for a long space of time.* For Keeping a Mischievous Dog, etc. And the plaintiff says that, at the time hereinafter mentioned, the defendant wrongfully kept a certain dog, well knowing him to 1 See Bernard v. Cafferty, 11 Gray, 10; Burnham v. Seaverns, 101 Mass. 360 ; O'Brien v. Barry, 106 Mass. 300; Hamilburgh v. Shepard, 119 Mass. 30 ; Knott v. Sargent, 125 Mass. 95; Graves v. Dawson, 130 Mass. 78 ; Car- dival V. Smith, 109 Mass. 158. "^ The above form was used and adjudged to be good in Gardner v. Dyer, 5 Gray, 22. ' See Codman v. Evans, 7 Allen, 431; Smith v. Smith, 110 Mass. 302. 584: MASSACHUSETTS PKACTICE. be of a ferocious and mischievous dispositiou, and accustomed to attack and bite mankind ; that the defendant, while he kept his dog as aforesaid, wrongfully and negligently suffered said dog to go at large, without being properly guarded or confined ; that, on or about the day of , the said dog while jn the. keeping of the defendant attacked and bit the plaintiff and wounded him in the leg, whereby the plaintiff became lame, and so remained for a long time, to wit, for the term of weeks, and was thereby occasioned great pain, and prevented from going on with his busi- ness as a carpenter, and was obliged to expend, and did, in fact, expend a large sum of money, in endeavoring to heal himself of said wound. Same ; for Double Damages under Pub. Sts. c. 102, § 93. And the plaintiff says that, at the time hereinafter mentioned, the defendant was the keeper of a dog ; that on or about the day of , A. D. 1893, at , in the county of , in said Commonwealth, said dog bit the plaintiff, who was then in the exercise of due care, and wounded him in his arm and leg, and other injuries to the plaintiff then and there did, thereby inflicting upon the plaintiff great bodily pain and anguish of mind ; whereby the defendant became liable to pay the plaintiff double the amount of the damage sustained by him as aforesaid. For ObstrwAing a Mill Stream. And the plaintiff says that, before and at the time of the com- mitting of the grievances hereinafter mentioned, he was and now is, the owner of a certain cotton mill situated in the town of on a certain stream called the Neponset River, of great value to the plaintiff ; and the plaintiff says for many years past the said stream has used to flow through a watercourse near his said mill, whereby the plaintiff has been used to work his said mill and ma- chinery without interruption or molestation, to the great profit and advantage of the plaintiff. And the plaintiff, for many years past, has had the right to use the waters of said stream for the purpose of working and carrying his said mill ; yet the defendant wrong- fully erected a dam across the said stream, above the land and mill of the defendant, and then and ever since has thereby ob- structed and impeded the course of said stream, and prevented the SELECTED FOEMS. 585 water from coming to the mill of the plaintiff ; whereby the plain- tiff has been deprived of his aforesaid rights, and prevented from enjoying the use of said stream as aforesaid, and has been greatly injured and obstructed in Ms business and in the enjoyment of said stream, and has been prevented from using and working his said mill. For Negligent Driving. And the plaintiff says that, on or about the day of , A. D. 1893,, he was possessed of a horse, at that time harnessed to and drawing a chaise of the plaintiff ; and the defendant was pos- sessed of two horses, at that time drawing an omnibus, which omnibus and horses were under the care, management, govern- ment, and direction of the defendant, who was driving the same ; yet the defendant so negligently and improperly drove and directed said two horses attached to said omnibus, that, by reason of the negligence and improper conduct of the defendant, said omnibus ran into and struck against and killed the plaintiff's said horse, which the plaintiff in the exercise of due care Was then and there lawfully driving. For Negligence of Bailroad Company. And the plaintiff says the defendant is a common carrier of passengers from Boston in said Commonwealth to Albany in the State of New York, by the means of cars drawn on the defendant's railroad by locomotive engines; and the plaintiff, on the day of , at the request of the defendant, took a seat at , in one of the cars of the defendant, to be conveyed, for a reasonable reward to the defendant, on the defendant's railroad, from to , whereby it became the duty of the defendant to convey the plaintiff safely from said to said , yet the defendant, not regarding its duty in that behalf, did not con- vey the plaintiff safely from said to said , but wholly neglected so to do, and, in attempting so to do, so negligently, carelessly, and unskilfully managed the locomotive, which drew the said car in which the plaintiff, who was exercising due care, was seated ; and the said road of the defendant was so unskilfully and imperfectly built by the defendant, and was at that time so suffered by the defendant to be in a defective and dangerous con- dition, that said locomotive ran off the track of said railroad, and 586 MASSACHUSETTS PRACTICE. dragged from said track and overturned the car in which the plain- tiff was seated as aforesaid ; whereby the plaintiff, although in the exercise of due care, was badly bruised, his shoulder dislocated, his right arm broken, and his left ankle sprained ; whereby he was for a long time, to wit, for six months, made sick and lame and unable to attend to his ordinary business, and was obliged to expend, and did expend, large sums of money in nursing and medi- cal attendance and other expenses, and suffered great pain and anguish of body and mind. Demurrer to Plaintiff's Declaration. And now comes the defendant in the above entitled cause and demurs to the plaintiff's declaration, and says that the said decla- ration and the matters therein contained in manner and form, as the same are stated and set forth, are not sufficient in law for the plaintiff to have his action against the defendant : For that it does not from said declaration appear that due notice of the non-pay- ment of the note declared on was ever given to the defendant [or, that the first count of said declaration contains two separate and distinct causes of action not arising on the same contract] . Wherefore for want of a sufficient declaration the defendant prays judgment. Attorney's Certificate. I hereby certify that I am of opinion that there is such probable ground in law for the above demurrer as to make it a fit subject for judicial inquiry, and that the same is not intended merely for delay. E. F., Defendant's attorney. Discharge in Insolvency. And the defendant says that on the day of , a. d. 1893, a discharge was granted to him as an insolvent debtor by the Judge of the Court of Insolvency for the county of Middlesex, a copy whereof is hereto annexed, and said discharge is a full and complete bar to the plaintiff's claim. [Copy of certificate.] SELECTED FORMS. 587 Petition for the Assessment of Highway Damages. To the Honorable the Justices of the Superior Court,^ holden aJ Boston, within and for the County of Suffolk: EespectfuUy represents A. B., of said Boston, that on the day of , A. D. 1893, and for a long time before, he was and ever since has been the owner of the house and estate numbered on Street in said Boston ; that by an order of the board of Aldermen of said city, passed and approved on said day, it was ordered [here insert substance of the order] , and your peti- tioner says that he is aggrieved by the doings of said board in the estimation of his damages occasioned by said laying out, and prays that the same may be inquired of by a jury at the bar of this Hon- orable Court. ^ • "Upon a proceeding to assess damages, begun by petition to the county commissioners and tried upon a warrant from them before a sheriff's jury, nothing is ever returned to or entered in the Superior Court but the verdict of the jury and the certificate of the rulings at the trial, and the only action which the court can take in the matter is to pass an order accepting or setting aside the verdict, and to certify the result to the county commissioners. After such an order, either of acceptance or rejection, has been so made and certified, the case no longer remains in the Superior Court or upon its docket. If the verdict is accepted, no further judgment or execution follows in the Superior Court ; but if the amount of the verdict is not paid, a warrant of distress is issued by the county commissioners. If the verdict is set aside by the Superior Court, a new application for a jury is presented to the county commissioners, and when the jury summoned thereon return a verdict, it is certified anew by the presiding officer to the Superior Court, and takes a place upon its docket as if no previous action in the court had been had." Gray, C. J., in Rose v. Taunton, 119 Mass. 99, 101. * Where one party applies to the county commissioners for a sheriff's jury, and the other applies to the Superior Court, the tribunal to which the first application is made has exclusive jurisdiction of the subject- matter, and so long as proceedings thereon are pending before it, no action can be had by the other. But it seems that a prior application to one tribunal is not sufficient reason for dismissing an application made to the other. Miller v. County Commissioners, 119 Mass. 485. 588 MASSACHUSETTS PRACTICE. Petition for Warrant of Distress. To the Honorable the County Commissioners for the County of Middlesex-: . Eespectfully represents A. B., of Sudbury, in said county, that on the day of , the F. & L. Eailroad Company, a cot- poration duly established under the laws of this Commonwealth, filed with your Honorable Board a petition that an estimate might be made of the damages occasioned to your petitioner and others, by the laying out, making, and maintaining its road ; that, there- upon, your Honorable Board made said estimate, which was duly completed and returned on the day of , and therein, amongst other things, it was ordered that said railroad company should pay your petitioner here the sum of dollars, and should construct for him a farm crossing at such reasonable place as he should select, all of which appears duly of record. And your petitioner further says that more than one year has elapsed since said award was completed and returned, and neither said railroad company nor your petitioner has applied for a jury to assess said damages ; but that the said railroad company has never paid said sum awarded as aforesaid, nor any part thereof, and has nieglected to carry out the order of this Honorable Board in other particulars. "Wherefore your petitioner prays that a warrant of distress may issue against said F. & L. Eailroad Company and in favor of your petitioner, to compel the payment of said damages, with costs and interest.^ Petition for the Enforcement of a Mechanic's Lien. To the Honorable the Justices of the Superior Court, now holden at Boston, within and for the County of Suffolk : Eespectfully represents A. B., of said Boston, jilumber, that he made a contract with J. S., of said Boston, concerning the house on the premises hereinafter described, a brief statement of wbich contract is as follows, viz. : [State the contract and price agreed upon, if any.] And your petitioner says that he has fully per- formed all the stipulations of said contract on his part to be per- formed ; that the labor mentioned in the account hereto annexed 1 This form may easily be varied to meet the case of an application against a city or town for damages awarded in laying out highway^ SELECTED EOEMS. 589 was actually performed and the materials therein mentioned were furnished and actually used by your petitioner in the construction [alteration or repair] of said house under and by virtue of said contract; that there is now due and owing to him therefor the sum of dollars, according to the account hereto annexed. Your petitioner further says that at the time of the making of said contract, and when said labor was performed and said materials were furnished, the lot of land on which said building stands was owned by said J.. S. ; that said lot is situated on Street, in said Boston, and is bounded and described as follows, viz. : [Description.] And your petitioner further says that he ceased to labor on and to furnish labor and materials for said house, on the day of , A. D. 1893 ; and within thirty days thereafter, to wit, on the day of , he filed in the Eegistry of Deeds for the County of SufEoUi a statement of a just and true account of the amount due him for said labor and materials, with all just credits given, together with a sufficient description of said premises, and the name of the owner thereof; that said statement was signed and sworn to by your petitioner, and was in all respects duly made and recorded. Wherefore, your petitioner prays that said premises may be sold, and the proceeds of said sale applied to the discharge of his said demand.^ 1 See Simpson v. Dalrymple, H Cush. 308; Goulding v. Smith, 114 Mass. 487. INDEX. INDEX. ABATEMENT, PLEAS AND ANSWERS IN, page when to be filed 201, 452 when heard 215,216 effect of , 487 decision of single justice on, final 368, 452 answer may contain defence available by plea 451 answer in, may be amended . . , 495,496 grounds for 472, 487-490 how distinguished from motion to dismiss 488-490 case tried on, not to be reported 490 none for circumstantial errors 491, amendment after plea of non-joinder 493 overruled, defendant to answer over 453, 495 may be filed with answer to merits 452 cannot be filed after answering to merits 451,489 issue of fact on .... .« 453, 494 judgment on 488,494 forms of answers 569 (See Amendment.) ABSENT DEFENDANTS. (See Sebvice ov Process.) ACCORD, how pleaded 572 ACCOUNT ANNEXED, count on, forms 554 count on, use of 423-425,555 effect of credits in 425 answers to, must be specific 462 form of answer to 571 to recover money due on a special contract 424 ACTIONS, begun by writ or petition 36 personal, against persons out of State 142-144 thrpe divisions of 4()S 38 594 INDEX. ACTIONS — continued. page not to be abated if defect is capable of amendment . . . 491 by and against corporations 33 locality of, not changed 541 entry of 195 heal, what are 26-28 brought in erroneous venue 28 where tract of land lies in different counties .... 28 against corporation 33 transitory, where brought 30-35 by or against executors, &c 34 of contract against several defendants 143,144 by or against cities, towns, &c. '. 33 real and mixed, sections of statutes applicable to . . . . 548 removal of 207-214 when brought in wrong county 28, 29, 210 when title to real estate is involved 207, 208 from one county to another 30-32,210-212 recognizance or bond, when necessary 208, 209 proceedings on removal 32, 209, 210, 214 from Superior to Supreme Judicial Court . . . 212-214 costs in such cases . 214 from State courts to Federal courts 214 at law, changed to suits in equity 509, 510 survivorship of . 448 trial of, by jury or court 215 how advanced for trial 257, 258 non-suited or defaulted, how restored to docket .... 224 defaulted or dismissed for non-payment of auditor's fees . 234 substituted, postponed, or passed 259, 261 continued, how marked for trial 258-263 AD DAMNUM, how increased or diminished by amendment 503 if omitted, may be added by amendment 502 determines jurisdiction 1, 2, 17 sufiicieflt allegation of damage 561 ADMINISTRATORS. (See Executors and Administra- tors.) ADVANCING CAUSES, when allowed 515 affidavit for. form 257, 258, 515 order to show cause 258 INDEX. 595 AFFIDAVIT, PAGE required on writs returnable to Supreme Judicial Court 23, 24 when not required 24 on petition for writ of review 122 on return of order of notice 147 for arrest on mesne .process 151 for arrest on execution 334 for advancing causes, form 515 to be annexed to interrogatories 518 AGREEMENTS OF COUNSEL, must be in writing 523 for continuance, &c 523 trial not to be delayed by 531 for " neither party " 524 for judgment, form 525 for substitution of cases 259 for postponement 261 that case be passed 261 for amendments, &c. 525 ALIMONY, scire facias for 77 AMENDMENTS, motions for, to be in writing and notice given 228 addressed to discretion of court 498 by agreement of counsel 525 terms imposed, for, after entry 228,495,509 after verdict 508 must be settled before judgment 229 ,in inferior courts, discretionary , . . 229 when allowed before judgment 497-510 to change action at law into suit in equity and vice versa 509, 510 not allowed after appeal on questions of law . . . . 510 changing form of action 497,504 court may enter into inquiry of fact, &c 497 adjudication allowing, conclusive of identity of cause of action 541-547 of libel for divorce . . . . , 228, 498 of complaints and petitions 498 after argument of exceptions 508 after demurrer filed 478 during trial 508, 509 after death of defendant 242 of bills of exceptions 380,389,390 of officer's return, how made . 191,192 596 INDEX. AMENDMENTS — continued. page of writs, &c 228, 500-505 after plea in abatement 453, 495 of declarations, cases 505-511 of answer in abatement 495, 496 of records 511 of verdicts 229, 506 after verdict, how allowed 229,318,507 after judgment, when allowed 511,512 as affecting attachments, bail, &c. . . . 179, 185, 228, 541-547 introducing parties as claimants, on petition of defendant . 499 AMICUS CURI^, power of 368 ANSWER, when to be filed in Supreme Judicial and Superior Courts 202 in cases removed from Superior Court 202 notice of filing to be given 202 not to contain matters not relied on 463 in Municipal Court of the City of Boston 201 oral, before trial justices 203 written, in district, police, &c. courts 203 may be made by defendants jointly 456 of infant, by guardian ad litem 203 of corporation, by officer or agent 203 second, not to be filed except on leave ....... 472 may be demurred to by replication 475, 478 may be amended after demurrer 478 need not state evidence 479 amended, comments on, by counsel 533 to merits waives defects in process 537 to declaration in set-off 202, 203 in demurrer and abatement, when to be filed 201 in abatement, allegations, and denials in 451, 472 may be amended 495, 496 forms 569 decisions of court on, final 452 answer over after decision on 453, 496 answer over after amendment 453 of trustees 50-53 in appealed cases in Superior Court 202, 363 to petition for enforcement of lien 202 to interi'ogatories, when to be filed . . . 247, 248, 518-521 when may be read at trial by opposite party .... 535 INDEX. 597 ANSWER — continued. page default for want of 202 may allege facts occurring since suit brought 478 substantive facts must be alleged clearly 463 matters in discharge or avoidance 460 different consistent defences in 456 substituted for pleas in bar and general issue 454 inconsistent defences in 456, 464, 478 must deny, or allege ignorance 456-463 denials in, how made 462, 463 denial of signatures 472-474 denial of items, how made 462 denials in, effect of 463, 479 general denial in, effect 458-460, 467 allegation of ignorance, effect 457 to common counts and accoiint annexed 462 supplemental, may be filed by leave of court 478 allegations in, of facts relied on 463-472 positive averments necessary 464-466 new matter in, deemed to be denied by plaintiff .... 475 new matter, plaintiff ordered to answer 475 replication to 475-477 statute of frauds or limitations, how pleaded . . . 463, 466 need not contain denial, when setting up a legal bar . . . 463 may allege facts, &c. in alternative 479 may contain equitable defences 453, 454 allegations in, not evidence . 532, 535, 536 to two or more matters, how taken 535 defendants bound by 463 written instruments relied on, how set forth 474 conditional contracts or grants, how pleaded 475 setting up former judgment 467 insufficiency of, cause of -demurrer 450 APPEAL, from taxation of costs 285, 286 from district, S^e. courts, to Superior Court, allowance and effect of 350-357, 364 improperly allowed will be dismissed 351 taken by both parties 356 how tried in appellate court 357, 363 time for claiming, not to be extended 359 bond to be given 350 money deposit, in lieu of bond 355 598 INDEX. APPEAL — contirmed. page when no security required 355, 356 in summary process for recovery of land . . . 360-362 form of bond 360 bond, forms of v , 352-355 from trialjttstiees to Superior Court, how allowed 357-359 how entered- in Superior Court ^ . . . . 351,359,362 non-entry, proceedings on 356, 359, 363 effect of 379 late entry allowed 362 when may be dismissed on motion 351 recognizance, form of, &c 353, 354, 357, 358 time for recognizing may be extended 357 money deposit in lieu of recognizance 359 proceedings on 359 time for taking, not to be extended 359 from Municipal Court, Boston . . * 359 to Supreme Judicial Court, when allowed in matters of law 365-367 proceedings on 367 from single justice not allowed 365 in matters of law affecting costs . . ' 286 how and when to be entered 384-387, 389 effect of non-entry 179 copies- required for 388, 394 non-entry of, proceedings on 179, 390, 391 late entry may be allowed on petition 392 not entertained till after final judgment 237 frivolous^ double damages, &c. awarded . . 295, 387, 388 APPEARANCE, general, how and when entered 198-200 form of 198 extension of time for 513 special, purpose of 200 becomes general, when 201 doed not waive rights 513 of trustees, when to be entered 198 withdrawal of 193 ARBITEATORS, costs and fees of 287 ARGUMENTS OF COUNSEL, how limited 277, 278 INDEX. 599 ARREST, 'AL exemption from . . 154, 155 on mesne process, in actions of contract, when may be made 151 in actions of tort, when may be made 152 who may authorize 151, 153 infants not liable to 155 forms of affidavits and certificates for 151-154 women not liable to, except for tort 155 not to be madfe after sunset, unless specially authorized . . 153 nor unless the writ contains the declaration 153 nor in actions for slander or libel 155 and attachment not to be made on same writ 153 will not be made by officer, without specific directions . . 154 on special precept 148 release from, by giving bail . . ^ 155-157 on execution, when may be made 332-342 proceedings on application for certificate 332-334 affidavit, when may be made 3S7 forms of affidavit and certificate 334, 335 ' not to be made after sunset except for cause shown . . . 335 may be made without affidavit, when execution is for costs, alimony, in scire facias, &c 332 when debtor is entitled to notice 335, 337 can be made but once, on same judgment, unless, &c . . . 339 examination of debtor after 335-342 form of notice to debtor 336 may be made after levy on property 341 ARREST OP JUDGMENT. ' (See Judgment.) ASSAULT AND BATTERY, trustee process not applicable to 45 declaration for 667 answer to declaration for 575 ASSESSMENT OF DAMAGES, petition for 587 order of proceedings for 315-317 ASSESSOR. (See Auditor.) ASSIGNEE, appointment of, when admitted 547 may appear to prosecute or defend 239, 241 600 INDEX. ASSIGNMENT, page of earnings, as aflfecting trustee process 57-59 in insolvency, effect of 176, 295, 319 by debtor in trust for creditors 176 ASSUMPSIT, action of, included in actions of contract 403 nature of, at common law 404 ATTACHMENT, ,s7 separate summons after 138 cannot be made on scire facias 75 may be made on audita querela 89 on writ of review 123 on trustee process, how made 44-50, 139 necessary in suits against non-residents 142 and arrest cannot be made on same writ 153 on special precept 148 property subject to 157, 158 to be made as directed 150 attorney liable for costs of 150 fees for making 159 of real estate, how made 158, J59 time, how computed 161 of real estate of non-resident without due service .... 148 not to be made unless ad damnum exceeds $20 .... 170 special, how made 159 of property of insolvent debtor 176,178,319 dissolved by discharge in composition proceedings . . . 178 lien of, to continue thirty days after judgment .... 177,842 in Nantucket, sixty days 177 in equity cases 177 may be continued by order of court 178 when vahd against subsequent purchasers 158 how affected by assignments 176, 178 of personal property, how made 159-169 of property that cannot be removed 160 when property is mingled 161, 175 custody of property under 160 chattels attached to be removed 160 of goods of separate owners ; . . 161 property under, taken by replevin 162 of partnership property . 168,169,179,181 of property of part-owners 181 disputed by subsequent attaching creditor 190, 191 INDEX. 601 ATTACHMENT — continued. page of cars, engines, &c., how made 162,170 successive attachments, how made 161 by trustee process against the mortgagor 165-167 of shares in corporations, how made .162 of property subject to lien or mortgage . . 159, 163-167,180 of mortgaged goods, by trustee writ 166 demand by mortgagee 164,165 form of 165 different modes of, not to be combined 167 by mortgagee, waiver of mortgage lien 167 of property of married women 157 exemptions from, by common law 169 by statute 170-176 how waived 175 equity of redemption from tax sale not subject to . . . . 157 seizin of a mere conduit will not support 157 mortgagee's interest in chattels not subject to 1 63 pensions not subject to 176 by trustee process, how dissolved 186 subsequent, how preserved 345, 346 dissolution of, by operation of law 176-180 by foreclosure and sale . 180 certificate of 184 by death of defendant 177, 178 by abandonment 61, 179 by bond in trustee process 60 by bond of part owner not a defendant 181 by bond of defendant 181, 182 form of 182 requisites of 181-183 when good at common law 184 fees for approval of 183 for partial release 185 how affected by discontinuance 184,185 suits on 184 when given after sale 189 of owner of record title 185 of one of several defendants 186 sale of property under 187-190 form of application for .188 of mortgaged goods 189 duties of officer 187-189 excessive and fraudulent, how reduced 190,191 602 INDEX. ATTACHMENT — conimMerf. page how affected by amendments 184, 185 how affected by insolvency ; 176, 178, 240 ATTENDANCE, allowance for 303 ATTORNEY. (See Counsel.) fee allowed 304 liable for costs of service 1 50 appearance by 198-200 change of 238 not accepted as surety 350 powers of 524 AUDITA QUERELA, WRIT OF, form 89 definition and use of ... 87, 205, 331 issue, service, and return of 88 plaintiflf in,, how released if imprisoned 88 appeal from judgment of Superior Court on 88 injunction may issue on 89 will not lie for error apparent on the record 88 pleadings on 88 judgment on 88, 89 AUDITOR, powers and duties of 229, 230, 233 appointment of 230 district, &c., courts may appoint by consent 230 appointed to assess damages 316 compensation of 234 when taxed in bill of costs 234 failure to pay, effect oi 234 may be discharged 233 proceedings before , 231-233 rule to, form of 2.S0 neglect to take out rule, effect 291 action referred to, not to be put on trial list until, &e. . . 26(t report of, how made, and its effect 231-234 report of, motion to recommit 216,233,234 report of, how impeached 233 testimony of, inadmissible to affect report 233 costs not allowed while case is before 235 report of, set aside, appeal not entertained till after final judgment 237 INDEX. 603 AWAED, vAGE declaration on 559 how impeached 2311 motion to recommit 216 objections to, in writing, &c 236 when set aside, effect 237 BAIL, how taken 155 ■ attorney not accepted as 156 condition in bond 156 surrender by 156 saV« /aa'as against ' 77,327 liability of 157 how affected by amendments .... 179, 185, 228, 541-547 audita querela in favor of 87 BAILEE, declaration against 579 BANK, co-operative, charged as trustee 54 BANKRUPTCY. (See Insolvency.) , BENEFITS, INSURANCE, &c., not attachable by trustee process 56 BILL OF PARTICULARS, must be filed with common counts 439 filing and requisites of 439 may be added after entry, by amendment 439 want of, how objected to 440 insufficiency of, how objected to 440 may be ordered by court 440 each item of, to be answered 462 (See Declaration.) BOARD, count for 553 BOND, how declared on 432, 433 form of declaration 558 judgment and execution, in suits on 318, 819, 469 joint and several actions on 433 trial of actions on 529 for further sum due on, scire /aa'as may issue 77 604 INDEX. BOND — continued, page to dissolve attachment 180-187 form of 182 may be good at common law 184 how approved and filed 183 action on, not afiPected by arrest 342 may be given to dissolve attachment in part . . . . 185 may be given by party in whom record title stands . 185 by one of several defendants 185 may be signed by person not a party 181 surety on, when discharged by amendment 1 85 effect of insolvency upon ....... 183,184,186 not discharged by defendant's death 177 given by part-owner not a defendant 181 not discharged by discontinuance as to one, &c. . 184, 185 not affected by judgment nunc pro tunc 313 how affected by review proceedings 125 how pleaded by defendant 475 may be given by person other than a party . . . 155, 186 on audita querela 88 for supersedeas on writ of error 110 on petition to vacate judgment 118,127 for swjoerserfea* on petition for writ of review 122 on execution against absent defendants, and form . . 330, 331 on admission to bail, form 155, 156 on execution, pending appeal from taxation 285 of indemnity to officer, form 150, 343 on judgment for lost note 316 on removal to Superior Court . . . . • 209 on appeal, how given 350, 351 forms of 352 defects in, effect of 352, 353 without surety, of no effect 353 given instead of recognizance 354 on appeal from taxation of costs 314 BOSTON, CITY OF, actions by and against, where brought 32 municipal courts in 15-17 (See Municipal Coukts.) BRIEFS 394,395 BUILDING, projecting, declaration for 583 INDEX. 605 CARRIEES, COMMON, page declaration against 578, 579 CAUSE OF ACTION, identity of, how established 541-547 one count only for each 417 two, on same contract, in same count . , 417 assignment of breaches 417 two, inconsistent 418 CERTIORARI, WRIT OF, form of 96 form of, petition for 94 how issued and returned 90, 92 for what errors a remedy 90 distinguished from writ of error 90 issues to public oflScers, when 90 not for parties without private remedy . . . . . . 91, 92 not for mere errors in form 94 may contain precept to certify record 97 ancillary to writ of error 97 proceedings on petition for 92-96 notice of, how given 92 costs on 93 exceptions on 93 answer to 94, 96 judgment on 93 hearing of questions of law on 95, 387 injunction may be issued on 93 CHALLENGES, of jurors 267-269 to the array 269 triable by the court 269 CITIES AND TOWNS, form of writ against 42, 43 CLAIMANT, in trustee process, notice to 58 to file statement of claim 58 judgment and costs for 59 may be summoned by defendant admitting funds . . 246, 499 COMMISSION to take deposition. (See Deposition.) 606 INDEX. COMMONWEALTH, THE, page aQtipns against 17, 18, 206 judgments in favor of, how enforced 340 CONDITIONAL OBLIGATIONS, conditions in, how set forth 431, 432 relied on, how set forth in answer 475 CONSTABLES, service of process by 149, 503 property in possession of, how attached 161 (See Officees.) CONTEMPT, how punished by trial justices 6 how punished by district, police, &c. courts ...... 11 CONTINUANCE, of process before trial justice 5 when no declaration in writ 44, 437 motion for 218-220 not allowed if testimony is admitted 218 or if witness can be summoned 219 as of course 219 for notice to absent defendant 144 in case of defective service 145, 146, 148 costs and terms upon 219, 220 refusal of, may be ground for review 220 effect of, on case on trial list 220 under rule of Municipal Court 220, 287, 292 nisi, effect of 220, 221 for allowance of exceptions 373 by reason of insolvency 239, 240 not allowed, to await return of commission 253 without costs, by ag,ree.ment 525 CONTRACT, actions of 403 to convey land, declaration 659, 579 CORPORATIONS, as parties or trustees, how represented .... 52,203,547 travel allowed to, as costs 303 interrogatories to . 519 incorporation admitted unless specially denied 547 municipod, actions by or against, where brought ... 32, 33 form of writ against 41 INDEX. '607 CORPORATIONS — continued. pagk municipal, service on, how made 137, 140 officers of, cannot be interrogated 519 private, actions by and against, where brought ... 33, 34 service on, how made 141-143 how summoned as trustees 45 may appear and answer by proper officer 52,203 /omgTj, cannot be sued, except, Sic 141,453 service on attorney 34, 141 trustee process against 45 judgment against 510 COSTS, prevailing party entitled to 284 when awarded to both parties 292, 293 to neither party ; 290, 291 to several defendants 293, 294 to partners as trustees 296 how aflfected by amount of damages 290, 291 upon entry of neither party 291 on motion for new trial 288 on interrogatories 521 execution for, how served 332 when trustee liable for, on scire facias 297 in replevin 67, 293 in summary process for recovery of land 73 in cases before referee or auditor 235, 287 in certiorari proceedings 93 not recoverable, when 290-292 not aiUowed in cases under rule, &c 220, 287, 292 not allowed to trustee who appeals 298 when two shire towns in county 288 on appeals from inferior tribunals 291, 294 in several actions for same cause 289 in separate actions brought instead of one 288 on writ of error 113 on petition for review 122 on writ of review 125, 126 after a plea of insolvency 294 indorsement for 193-195 (See Indoksement.) against insolvent plaintiff 240, 241 in actions of contract against several defendants . . 293, 294 in cases referred by agreement «'« ^ais 235 608 INDEX. COSTS — continued. page against an infant defendant 285 in cases before arbitrators, &c 287 in actions on bonds 287 when money is paid into court 242-246, 288 when set-off is pleaded 288, 292, 322 when no express provision is made 288 in several actions tried together 289 defendant's, for non-entry, upon motion 289 on complaint for non-entry 214, 289 upon discontinuance 296 when defendant summoned as trustee of plaintiff .... 303 imposed for continuance 219, 220 for amendments 497 reservation of, not to delay judgment 229, 313 imposed as terms not to be taxed again 502 how affected by tender 242-246, 288 how affected by offer of judgment 247, 526 for copies of stenographer's notes ......... 273 bills of, how taxed 284 notice of taxation, when required 284 how taxed in appealed cases 284 certificate of, in lower court 285 memorandum to clerk of sums paid 308 when judgment is entered by agreement 525 appeal from taxation of 284—286 does not vacate judgment 284 hearing of 285, 286 costs of 285, 286 judgment on 286 items of, allowed 300-311 writ 300 entry 301 service of writ 300 declaration 309 term fee 302, 31 1 attendance 303 travel 303 attorney's fee 304 witnesses 304, 305 issue 306,310 suhpcena and service 306 taxing 306 answer of trustee 298 INDEX. 609 COSTS — continued. page items of, allowed — continued. auditor's fees, when taxed 234 disbursements 307-309 of defendant 310, 311 allowed to executors, &c 303 execution for, against executors, &c 325 held to include counsel fees, when 344 in trustee process 296-299 to defendant disclaiming interest in funds 499 of trustee 296-299,311 of copartners 296 of claimant 299 for depositions, copies, &c 307, 308 bill of, in Supreme Judicial and Superior Courts .... 309 bill of, in the inferior courts 310,311 in cases removed by consent of parties 214 double, when allowed 35, 114, 295, 387, 388 party setting forth superfluous matter liable for . . . . 417 COUNSEL, rules applicable to, in trial of causes 275 change of, to be entered on docket, and notice given . . ■ 238 arguments of, limited 277, 278 agreements of, to be in writing 523 for continuance, &c , . 259, 261 when liable as indorser 193 (See Agbeements.) liability of 150 will not be accepted as bail or surety 350 authority of 524 COUNTS, one for each cause of action 417,433 breaches, how assigned 417 not to contain two causes of action on same contract, except 417 misjoinder of, as cause of demurrer ' . 446, 448 decision of justice final 526 demurrer to one or more 441, 445 inconsistent 420, 446, 448 for different causes of action, how joined 418-421 election as to 317, 318, 420 common, not to be used unitedly 421 how used 44, 421 bill of particulars to be filed with 439 610 INDEX. COUNTS — continued. page one or more, against persons severally liable 433 not proved may be struck out 532 COUNTY, venue of actions by or against 31 COUET CASES, trial list of 259 how tried 261, 528 finding in, equivalent to verdict 529 exceptions, &o., in 529, 530 may be reported 530 motion for new trial of 226, 529, 530 decisions in, clerk* to give notice of 530 COURTS, in general 1 district and police courts 6-15 (See District and Police Courts.) municipal courts 15-17 district courts, list of 10-13 police courts, list of 13-15 The Superior Court 17-22 (See Superior Court.) The Supreme Judicial Court 22-26 (See Supreme Judicial Court.) of the United States, pleadings and practice in .... 403 error from 114 removal of actions to 214 (See Appeals, Exceptions, and Eeports.) COVENANT, action of, at common law 404 action of, included in actions of contract 403 CREDIT, false representations of, count for 526 CREDITOR'S BILL 157 measure of, not changed by statutes 541 proceedings for assessment of 315,316 how assessed in defaulted cases 315 in actions on bonds, &c 315 special, to be alleged 408, 413 double, allowed on frivolous appeal, &c 295 double, when due, need not be specially declared for . . . 405 INDEX. 611 DAMAGES, PAGE double,, declaration for 584 general allegation of, sufficient 408, 561 incorrectly estimated in declaration 447 DEATH, suggestion of 241 eiTect upon an attachment .... 177 no amendment after suggestion of, until 242 after exceptions taken 373 DEBT, action of, at common law 404 action of, except for penalties, included in actions of con- tract 403 DEBTOR, POOR, not relieved from arrest by habeas corpus 81 brought in on habeas corpus for examination 84 when admitted to bail 156 DECEIT, declaration for 562 answers in action for 574 DECLARATION, to be inserted in writ, when 44, 437 need not be inserted, when 44, 437 want of, cause for dismissal 438 to be filed, when 437 to be furnished the defendant on demand 44, 437 effect of failure to furnish 438 when may be filed after entry 438 in set-off 204-206 (See Set-off.) amendments to, after plea of non-joinder 493 amendment to, cases 505-611 (See Amendments.) no averment necessary which need not be proved . ,. 404-406 one count for each cause of action 41 7 surplusage in 404 breaches, how assigned 417 may assign breaches in the alternative 417 may allege facts, &c., in alternative 479 impertinent statements in, not privileged 405 allegations in, of conclusions of law 412 612 INDEX. DECLAEATION — co» Libel.) LIEN, petition to enforce, where brought 7 form 588 LIMITATIONS, STATUTE OF, form of answer , . . . ^ 570 replication to 576 must be specially pleaded 466, 467 pleaded, without denial of other matters 463 pleaded to declaration in set-off 205 in declaration 406 MAGISTRATE, interest of, how objected to 2 MALICIOUS PROSECUTION, trustee process not applicable to 45 declaration for 582 copy of process need not be set forth 430 absence of probable cause for criminal charge essential . ., 416 MANDAMUSj WRIT OF definition and use of 97, 98 granting of, in discretion of court 99 first or alternative, form of 101 proceedings on 101 return to 101 judgment on 102 notice to third parties 102 peremptory, when issued 102 632 INDEX. MANDAMUS, WRIT OY — continued. page petition for, form 100 proceedings on 99 notice, how given . .• 1 02 questions of law on, how heard 387 judgment on 100 MARRIAGE, breach of promise of, declaration 559 MASSACHUSETTS REPORTS, publication of 398, 399 MILL-STREAM, declaration for obstructing 584 MINORITY, how pleaded 572 replication 576 MISJOINDER, of counts, ground for demurrer 448 of plaintiffs, how objected to 472 MONEY HAD AND RECEIVED, declaration for 482 form 550 interest, how declared for 551 answer to 570 MONEY LENT, declaration for 552 MONEY PAID INTO COURT, . may be brought in at any time under rule 242 effect of 242, 246 te be in custody of clerk 246 defendant not paying in, liable for interest 246 when defendant disclaims interest in funds 499 (See Tendek.) MORTGAGE OF CHATTELS, validity of, how tried 166 (See Attachment.) MOTIONS, when to be in writing 216 notices of, how given and proved 216,217 when heard 216,217,261 list of, how kept 217 grounded on facts to be verified, except . . 217, 218, 227, 228 INDEX. 633 MOTIONS — continued. pa g i: for continuance 218-220, 239, 240 allowance of, in court's discretion ........ 219 to dismiss action, how made 201,221 how distinguished from plea in abatement . . . 488-490 decision on, when final 221, -452 may be filed with answer, &c 452 to dismiss exceptions 393 to charge or discharge trustee 216 for default or non-suit . .221-223 for judgment 224 for bill of particulars 216,623 to remove default or non-suit 223, 224 for new trial .....' 218, 225-228 overruled, entry of judgment 221 requisites of 225 proceedings on ... : 225-228 judgment notwithstanding 225 to amend writ or pleadings 216, 228, 229 terms on allowance of 228 notice of, to attaching creditors, &c 228 to amend officer's return on a writ 192, 347 to amend after verdict 229 to recommit auditor's report or award 216, 234 MUNICIPAL COUKTS, in Boston, list of 15 jurisdiction of 15-17 answers in i 201 may appoint auditor when parties consent 230 executions from, how directed and served 16,328 sections of statutes applicable to 548, 549 interrogatories in, how filed and answered 516 judgment on accepted offer, final 247 MUNICIPAL COURT OF THE CITY OF BOSTON, THE jurisdiction of 16, 17 late entries in, how made 196 interrogatories in 247 answers in 201 may contain defence that is ground for dismissal . . 216 hearing of pleas in abatement and demurrers in .... 216 motions, when heard in 216,217 trial list in 262 continuance, how granted in 226 634 INDEX MUNICIPAL COURT OF THE CITY OF BOSTON, THE -^ continued. page report of referee or auditor ia 234 appeals in matters of costs in ... 286 no costs while case is under advisement or before auditors or referees 235 offer of judgment in ... • 247 cases under rule, how put on trial list 262 executions from 326 ^sections of statutes applicable to 548, 549 NECESSARIES, debts for 57 NEGLIGENCE, declarations for 563, 564, 585 "NEITHER PARTY," entry of, effect ... 1 524 NEW TRIAL, when may be granted 225-228 juotions for, when to be filed 225 proceedings on 226 to be supported by affidavit, &c 225 costs on 288 how made after rescript sent down ....... 396 not granted unless rules complied with 225 acceptance of, a waiver of exceptions 369 order for, may be restricted •. 397 in cases tried by court without jury 226 NEXT FRIEND, form of writ in actions by 39, 40 liability for costs 194 NON-ENTRY, of writ 197 efiect upon attachment 1 97 complaint for . 197 costs for 289 of action removed 210, 214 of appeal, &c , 390-393 (See Entry.) NON-JOINDER, of plaintiffs, how taken advantage of 472, 491 INDEX. 635 NON-JOINDER — continued. page of defendants, how pleaded 492, 493 amendmeDt allowed 493 NON-SUIT, refusal to direct, not ground for exception 222 may be ordered in local action brought in wrong venue . . 28 on call of docket 264 right of plaintiff to become 222 not allowed after question of law reserved 222 motion for 223 how waived 222 cannot be ordered if plaintiff appears 223 motion to remove ... 223 for failure to answer interrogatories 223, 521 or to strilse out irrelevant matter 223, 521, 522 in consequence of insolvency 294 NOTES AND BILLS, parties to, may be joined in one action 433-435 declarations on 556-558 forms of 556, 557, 577, 578 answers to; forms .......... 571, 572 NOTICE, how given 216 by personal service, order of 146 how served 147 by publication, order of ... 147 service and proof of ... 147 of filing answer, to be given in writing 202 of motions, when to be in writing 216 how proved 216 when unnecessary 216, 217 of motions to remove default 223 for new trial, to be given on day of filing 225 for leave to amend ^ . . . . 228 for continuance by reason of insolvency 239 of change of attorney 238 of offer of judgment , 247 of filing of interrogatories 247 of trial in the Municipal Court of the City of Boston . . 262 proof of 263 to produce at trial 269, 270 if not complied with, secondary evidence admissible . 270 636 INDEX. NOTICE — continued. page of filing exceptions 369 of petition to establish truth of exceptions 378 of taxation of costs, by clerk 284 of filing rescript, to be given by clerk 395, 396 OFFER OF JUDGMENT, when may be made 247, 525 form and effect of 246 time allowed for acceptance 526 not to be used as evidence if not accepted 535 filed during vacation 526 refusal of ■ . 247 judgment upon, final, when 247, 526 effect of, upon costs 247, 526 OFFICERS, service of process by 149, 150 not to fill up writs, &c 150 not liable in trustee process 54, 169 not liable for failure to arrest, unless expressly directed . 153 sale of attached property by 187-189 attaching, liability of 160,164,175,187,344 return of service 191, 347 may amend returns 192, 847 (See Return.) may require bond of indemnity 150 fees of, for service, &o. , 300, 301 extra compensation claimed by 301 OPINIONS OF THE COURT, how prepared and published 398, 399 ORDERS OF COURT, interlocutory, how made by court 523 may be entered by agreement 523 after decision on demurrer . . . . , 527 after decision of question of law 398 PARTICULARS, statement of, may be ordered 523 (See Bill op Paeticulaes.) PARTNERS, summoned as trustees 49 PAYMENT, how pleaded 465, 570 INDEX. 637 PAYMENT — continued. page appropriation of 670 in part not a discharge of the debt 571 part, and tender, how pleaded 572 pp:nalties, actions for, included in actions of tort 403 forms of declaration for 568, 569 PLEADINGS, how construed 479-483 not evidence in case 532 evidence in another suit 534 need not state evidence 479 none required after answer, except 475 parties, how bound by 532, 533 PLEAS IN BAR, special, abolished 454 how distinguished from other pleas 455 classes of 455 POLICE COURTS. (See Distuict and Police Courts.) PROCHEIN AML (See Next Friend.) PROHIBITION, WRIT OF, how and when issued 133-135 operation of 134 form of 135 PROTECTION," WRIT OF, how and when issued 131 form of 132 QUANTUM MERUIT, count upon, use of 422-425 RAILROAD COMPANIES, cars and engines of, how attached 162,170 declarations for negligence of 563, 585 RECEIVERS, liability to trustee process 48 RECOGNIZANCE, on removal of action to the Superior Court 208 when not required 209 on appeal from trial justices, how entered into . . . 357, 358 638 INDEX. 'R1E,C0GNIZANCE — continued. page memorandom of 358 effect of defects in 352 deposit or bond in place of 359 (See Bond.) REFEEENCE, agreements for, requisites 235 effect of 287 order of, form 235 expense of, paid by counties, when 235 by agreement in pais 235-237 report of, how transmitted 238 EELEASE, how pleaded 573 EEMOVAL OF ACTIONS. (See Actions.) EEPLEVIN, third division of personal actions 403 in what cases applicable 61, 62 not to be begun by trustee process . 45 property not subject to 62, 165 bond in 64, 66 how sued 69 objections to, how raised 65 by mortgagee 61, 165 where brought 3, 28, 63 as between tenants in common 61 judgment in < 66-69 damages in 67, 68 forms of writ and bond ^ . . . . 65, 66 attached property taken by 1 62 EEPLICATION, may be made to new matters 475 not necessary unless ordered by court .... 475, 476, 477 how construed . • 475-^477 demurrer by 478 may contain equitable defences 454 supplemental, may be filed by leave of court 478 form of 576 trial not to be delayed for 531 REPOET, of questions of law, how made 382-384 INDEJC. ^ 639 REPORT — continued. pagf in cases tried by three justices S8S may be filed, when S83 cannot be made of cases tried on isi^ue in abatement . . . 384 or until questions of fact are s-ettled 384 how framed 384 findings of facts not to be revised on 384 how entered in Supreme Judicial Court 384 RESCRIPT, how transmitted and entered ... ^ 395, 396 notice of filing to be given by clerk 395 contents of » 398 RETURN, form of, on writ of habeas corpus 85 to writ of mandamus 101 of justice, to a writ of error ; form Ill by constable on attachment of personal property . . . . 161 of officer, form and effect of 191, 347 how amended 192,347 form of, when execution has not been in officer's hands . . 328 REVIEW, petition for writ 119,120,122 parties to 120, 121 proceedings on 121, 122, 127 form of 126 bond on 122 judgmenton 121,122 costs on , 122 writ of, how and when granted . . . , 114-116,119-123 on loss of appeal, without fault 351 parties to 115 attachment on 123 proceedings on . , , 124, 125 indorsement of 125 costs on 125, 126 judgment on 125 supersedeas a,ni bond . . .'. . . 122,123,128,129 forms of writ and SM^erse^eos 129,130 RIDING, immoderate, declaration for 564 640 INDEX.., SCIRE FACIAS, "WRIT OF, page no attachment or arrest to be made upon 75 in what cases applicable 75-78 concurrent with action of contract 76, 77 on judgment, for a new execution 75, 76 on poor debtor's recognizance 76 against executors, &c 3, 76 against trustees 53, 78 costs on 297 after an ineffectual levy on real estate 76, 77 after execution satisfied 77 on appeal bond 77 in case of non-payment of alimony 77 against debtor, on escape from arrest 77 against bail 3, 77, 78, 327 form of writ 80 against indorser of writ .* . . , 78 action of, how removed 208 forms of writ 79-81 service, return, and indorsement 78 does not lie against mortgagee ......... 50,166 ad audiendum errores : form Ill SERVICE OF PROCESS, on defendants within officer's precinct 138 of original writs from Supreme Judicial and Superior Courts 137 of writs from trial justices, &c 40, 41 of writs from district, police, &c., courts 137 of trustee writs from trial justices, &c 137, 139 computation of time for 138 on non-resident, in this State 145 of new writ, after plea in abatement 493, 494 of trustee writs 41, 137, 139 on cities, towns, &c 137 of original summons 138 after attachment is made 41, 138 on absent co-defendants 143, 493, 494 on partners summoned as trustees 139 in suits against a county, &c 13^, 140 in case of absent defendants 142-149 absent defendants, notice to 144-148 proof of service outside of State 147 on domestic corporations 1 40 on foreign corporations 141, 142 INDEX. 641 SERVICE OF PROCESS -^ continued. page defective or insufSoient, proceedings on 148 by whom may be made 149, 150 by arrest 138 (See Aeeest.) by attacbmeut 138 (See Attachment.) by special precept 148 costs allowed for 300 SET-OFF, when allowed 204-206, 430 declarations in, when filed 204 after amendment 204 notice of filing 204 answer to 205 to defendant's demand 205 statute of limitations, how applied to 205 may be withdrawn 205 in appealed cases , . 206 in actions against Commonwealth 206 judgment in, how entered 322 discontinuance after, not without defendant's ponsent . . 206 separate suit for same demand no defence to 205 applicable only to claims on contracts or judgments . . . 206 of judgments and executions, how made . . . 125, 347-349 costs in 288, 292, 322 of costs ' 293 SHERIFF. (See Officers.) SHORT LIST, preparation of 264 SIGNATURES, deemed to be a'dmitted unless specially denied . . 427, 472-474 of witnesses need not be denied ". . 473 SLANDER AND LIBEL, actions for, not to be begun by trustee process 35 no arrest on mesne process to be made, in actions for . . 128 declarations for, necessary allegations in 414—417 when special damage must be alleged .... 415, 449 must set forth words substantially . , . . . 415, 449 innuendoes, colloquium, &c., how pleaded . . 416, 565 purpose of ^. 565 words spoken in foreign language, how set forth . . 566 forms of 564^567, 583 41 642 IKDEX. SLANDER AND LlB'El, — continued. page answers in actions for, demurrer to 450 general denial and justification 536 justification pleaded no proof of malice 536 truth, a justification 537 form of 674 STATUTE, general, how referred to 435 STENOGRAPHERS, appointment of, and duties 272 SUBPCENA, form in Suffolk County 273 to witnesses, how issued and served ..... 265, 266, 306 fee for 306 duces tecum 267 SUGGESTION, of changes after commencement of suit 540 of insolvency 238-241 of death, &c 241, 242 to be entered on the record 540 SUMMARY PROCESS FOR RECOVERY OF LAND, in forcible entry and detainer 70 in landlord and tenant cases 71 prior notice to quit not necessary 71 after foreclosure of mortgage 72 writ in, how issued 4 form- of 72 in what cases applicable 69-74 where brought 3, 7, 27, 72 judgment in 73, 74 removal of, to Superior Court 209 appeal in, bond and recognizance 360-362 as to tenants in common 70 SUPERIOR COURT, THE, constitution and jurisdiction of 17-20 no action to be brought in, where damages not exceed one hundred dollars 20 in bastardy cases, jurisdiction of 19 jurisdiction in equity 19 sittings of 20-22 INDEX. 643 SUPEEIOK COURT, TEE — continued. page sessions of, how held 17, 22 cases heard by three justices, when 20 writs and processes of, how issued and how returnable . . 43 stenographers in 272, 273 SUPERSEDEAS, on writ of error 110 bond on writ of, or petition for review 110,127 forms of writ and bond 129 SUPREME JUDICIAL COURT, THE, constitution and jurisdiction of . . .* 22-25 powers of . ■ 24 matters cognizable by full bench of 24, 35 questions of law may be brought to 24 (See Appeals ; Exceptions ; Reports.) four justices of, to constitute full court 24 removal of actions to 24 sittings of 25, 26 original writs from, how served, returned, and entered . . 43 (See Service or Process.) justice of, may report or reserve a case 382-384 questions of law, how heard by 35, 393 judgments, orders, and decrees of 396, 397 opinions of, may be required by governor, &c. ... 23, 398 SURPLUSAGE, effect of 404,405 TENDER, how made and pleaded 242-246 effect of 242-245 form of answer 672 acceptance of . 242 when wages are attached 243 in cases of trespass 243 as affecting costs 242, 243, 245 in cases for assessment of damages, &c 243 TERM FEE, allowance of 502 TIME, computation of 138 averment of, in trespass 567 644 INDEX. TORT, ACTIONS OF, page actions included in 403, 404 arrest in, how authorized 152 TOWNS AND CITIES, actions against , 33 form of writ against 42 service on 140 declaration against 563 TRAVEL, allowance for, in costs 303 TRESPASS, action of, included in actions of tort 403 definition of 404 venue in actions of 27, 28 at common law 404 ^uare cZausum, declaration in 405,436 begun by trustee process 45 declarations for 567 answer in, form 575 TRIAL, by jury, claim of 215 by the court 215 of issues against several defendants 433 not to be delayed by agreements, &c 531 not before a certain day 261 when more than one shire town in county 260 causes, how advanced for 257, 258 cases under rule, how marked for 262 form of notice of 262,263 conduct of 273-279 plainufif entitled to open and dose 273, 274 course of proceedings 275 order of admission of testimony 275 instructions 278 saving exceptions ' , 279 TRIAL JUSTICES, appointment and designation of ..." 12 tenure of office 3 jurisdiction of 3 actions, where heard 4 g when writs and executions of, run into other counties . . 4 writs, how returnable 4 43 INDEX. 645 TRIAL JUSTICES — continued. page process, how continued when justice fails to attend ... 5 powers and duties of 6 death of, before judgment 5 judgments of, how appealed from 357-359 on accepted offer, final 247 actions op, when to be brought 329 appearance in actions before 199 pleadings before, oral or written 203 not to try title to real estate, except, &c 207 removal of actions from 207-209 term fee, in actions before 302 sections of statutes applicable to 403, 548 interrogatories before, how filed and answered 549 costs in actions before 300-311 TRIAL LIST, how prepared 258-264 separate, of jury cases . 215, 258, 259, 528 of advanced cases 258 substitution of cases on 259 cases on, marked " not before " 261 cases continued under rule 262 cases on, how postponed 260 of cases to be tried by the court 259 TROVER, action of, at common law 404, 425 included in actions of tort 403 form of declaration in, prescribed 425, 561 demand, when necessary to support 425 answers in 573 TRUSTEE, constructive possession not sufficient to charge .... 49 may plead in abatement 52 when chargeable for interest 55 motion to charge or discharge 216 answer of 50-53 additional 52 by corporation 62 effect of . -. 52,53 questions on, how tried 53 scire facias against 53, 78 liability for costs 297 interrogatories to 247, 248 646 INDEX. TRUSTEE — continued. page costs of 297-299 effect of judgment against 60 jointly liable, service 139 liability on execution 177 appointment of, when admitted 547 not chargeable on liability in tort before judgment ... 48 nor for contingent debt 54, 55 TRUSTEE PROCESS, what actions may be begun by 45 against non-residents, &c 45 trespass commenced by 45, n. common carriers liable to 49 against trustees for creditors 49 form of writ in 44, 45 when names of trustees may be added 47, 140 how served 47, 138, 139 by special precept 148, 149 where brought 46 may be removed for trial 211 from trial justices, may run into any county 4 when and where returnable 4, 47 claimant in, rights of 58, 59, 299 judgment for 59, 299 costs of 299 debts and property subject to 47-50 against mortgagor or pledgor 50,165-167 no costs to plaintiff in, unless damages exceed ten dollars . 291 exemptions from 54-56 wages, in what cases exempt from 56 unrecorded assignment of future earnings invalid against . 57 executors, &c., liability to 48 assignee in insolvency, when chargeable 48 receivers, when chargeable 48 property conveyed in fraud 49 in cases of partnership 49,139 husband and wife, when chargeable 50 interrogatories in 247, 248 judgment in 53, 299 how dissolved 60, 186 execution in, form . 325 UNITED STATES COURTS, pleadings and practice in 403 removal of actions to 214 INDEX. 647 USE AND OCCUPATION, page not applicable to rent due under written lease 654 form of count 553 VENUE, of local actions 26-29, 631, 541 of transitory actions 30-35 VERDICT, form of 280 finding in place of 280 amendments after 229, 281, 606 may be amended 281 correction of, by jury 280, 281 VIEW, of premises, how taken 271 WAGES, when exempt from attachment 56, 175 future, assignment of 57 WAREHOUSE-ROOM, count for 553 WARRANTY, declaration on 581 WAY, declaration for obstructing 564 answer, form 574 WITNESSES, suhpcenas to, how issued and served 253, 265 attendance of, how compelled 265, 266 • fees of 265, 266, 304-306 depositions of 252-257 testimony of several, on one commission 255 examination of, at trial 276 not obliged to attend unless fees are paid .... 265, 266 failure to attend, how punished 266 continuance on account of absence of . . . .... 218 competency of, how established 275 how impeached by parties calling them 276, 277 certificate of, form 282 filing of 281 eflfectof 282 648 INDEX. WITNESSES — continued. page costs of, for matter alleged but not relied on 417 examination of ,. 275-277 WOMEN, cannot be arrested on mesne process except for tort . . . 1 55 proceedings against, on execution 339-341 form of petition for examination of 341 married, may sue or be sued as if sole 406, 407 property of, employed in business 167, 108 wages of, when exempt from attachment 175 property of, when not attachable .... 157,168 husband of, how liable 168 WOEK AND LABOR, form of declaration in action for 552, 553 how recovered for, on quantum meruit 421-423 form of answer to 571 WOEK AND MATERIALS, count for ._ 553 WEITS, original, forms and requisites of 36-38 against defendant whose name is not known .... 39, 501 in actions for benefit of infant 39, 40 against executors, &c 42, 502 against persons under guardianship 42 against cities, towns, &c 42, 43 of capias and attachment 39 of summons and attachment ' 40 may contain bill in equity or petition 36 of simple summons 41, 42 in trustee process 44—47 of replevin 61-69 of scire facias 75-81 of scire facias ad audiendum errores Ill of habeas corpus 81-87 of audita querela 87-89 of certiorari 90-97 of mandamus 97-102 of error 102-114 of review 28,114-131 of protection 131,132 of prohibition • 133-136 from trial justices 4 INDEX. 649 WRITS — continued. page from district and police courts 7, 8 return and entry before trial justices 4 new, after amendment 493 how served and returned 493 proceedings under 493, 494 amendments of, what allowed 500-505 defects in, waived by answer to merits 537 alteration of, after service 546 "WRITTEN INSTRUMENTS, how declared on 427-432, 433-435 copies of, may be ordered 427, 475 when lost, how proceeded on 427 persons severally liable on, may be joined in the same action 433 when relied on in an answer, how set forth .... 430, 474 signatures to, when deemed to be admitted . . . 427, 472-474 special denial of 472, 473 notice to produce, when necessary 269 notice to produce, how given, and effect 270